Teaching Contemporary Cases Before Marbury

[Robert Justin Lipkin]

       I very much want to pursue the thread on assigning Grutter (and/or Gratz and Lawrence) for the first class session.  Mindful of Sandy's admonition against doing so, I would welcome any thoughts on this scenario. I teach two-hour class sessions, and this Fall I will be teaching evening division students who are generally thoughtful and highly motivated.  Here's my strategy: Because almost everyone has a strong opinion on affirmative action (Equality) and Gay and Lesbian rights (Freedom), I will begin with Grutter and Lawrence. (I use my own materials, so I will include a sparsely edited version of these cases, which I will follow up later in the term with a more comprehensive edited version.) I will introduce the cases by examining their equality and freedom aspects just as I would discuss freedom and equality when I taught  an undergraduate course in Social Philosophy at Northwestern University. I will then discuss the distinction between law and politics. Next, I will introduce such issues as federalism, standards of review, fundamental rights, suspect classes, and so forth. I will end this session with an introductory discussion of whose role it is to make such fundamental decisions in a democracy (republic). One goal will be to emphasize the role of judicial review/supremacy in contemporary American democracy. The issues raised in this discussion will be brief and tentative.

       For the next class I will begin by indicating that we will now identify the case that virtually initiated judicial review, namely, Marbury v. Madison. Does this approach seem promising or will I be making a big mistake in beginning my course in this manner?  I have tried different approaches before and have often been disappointed. If you think I'm asking for trouble, please try to save me from myself. Thanks.    

Bobby Lipkin
Widener University School of Law
Delaware