Re: STARTING CLASS WITH THE U-MICH AND LAWRENCE CASES

[Robert Justin Lipkin]

       In responding to Sandy, I'm reminded of the old E. F.  Hutton commercial ("When E. F.  Hutton talks, people listen.")  When Sandy Levinson talks against beginning Conlaw with a contemporary case--or about anything else for that matter--Conlaw teachers (should) listen. However, with all the notoriety surrounding the most recent cases Grutter/Gratz and Lawrence together with the opportunity of  introducing students to both rights and structural issues, beginning with these cases might be a good idea. For one thing the students are more likely to respond to the contemporary language of the Court better than Marbury's language.  Whenever I begin with Marbury I have the distinct impression that the students believe I'm speaking a foreign language. Further, one would have to concede that affirmative action and the freedom of intimate association are just slightly more interesting than whether a disappointed appointee for a judicial position can vindicate his rights in court.  But Sandy is right about the contemporary cases being "relentlessly doctrinal." How about this compromise?  Edit the recent cases, if possible, to their sexiest parts and inform the students that you will revisit these cases in greater depth later in the course. Stress how important judicial review/supremacy is in the contemporary world with the aim of then examining how this peculiar practice was (virtually) initiated in Marbury. I am intrigued by the possibility of asking students whether they believe courts should trump majorities in the way that the recent cases do. If they agree, then they might be interested in seeing how it all began in American constitutional law (Of course, Marbury wasn't actually the beginning, but never mind). If they think judicial review/supremacy isn't a good thing, then Marbury can then be seen as the culprit. This sounds like an interesting way to get students revved up for what most students consider to be a difficult course. 

Bobby Lipkin
Widener University School of Law
Delaware