Heagney, Meredith

English

University of Chicago Law School: Chicago Unbound

T H E U N I V E R S I T Y O F C H I C A G O L A W S C H O O L   S P R I N G 2 0 1 318Constitutional Decisionmaking: A Signature Chicago Law Experience By Meredith HeagneyIn many ways, Professor Geoffrey Stone’s ConstitutionalDecisionmaking class is a quintessential Chicago Lawexperience: The class is extremely rigorous and challenging. It is idea based and requires deep thinkingabout complicated topics under serious deadlines—bothfor the students and for Stone. It forces students to examineand constantly reconsider their ideas and judgments, andit encourages endless debate. The class is a true example of teaching students how to think like lawyers. Suffice it to say, it is a lot of work. Here’s how Stone designed the class to work: 2L and 3Lstudents can apply for admission. Students apply withclassmates as a “court,” made up of a group of five “justices.”Stone typically chooses three courts by lot, and each operatesindependently during the course of the seminar. Usually,about half of the students who apply get a spot. Every week, each court gets the same two hypotheticalcases that Stone created to focus on different aspects of aconstitutional issue. In recent years, it has been the EqualProtection Clause, though in the past he has also focusedon freedom of speech and freedom of religion. Each court must carefully consider each case and write itsopinions. A court producing just one opinion in a case isvery rare; it’s much more common for courts to turn in amajority opinion, a concurring opinion, and a dissentingopinion—and often multiple concurring or dissentingopinions. All this is accomplished within a week, so whenthe students receive the cases, they must read and analyze74374_Constit_Decision Making B_P18_21_p.22-23  Soldiers Story  3/25/13  9:06 AM  Page 1S P R I N G 2 0 1 3   T H E U N I V E R S I T Y O F C H I C A G O L A W S C H O O L 19over the course of the quarter, and Stone has to look everharder for inconsistencies and gaps in logic as the workimproves. But he always demands more of the students.“It’s a really great teaching experience for me because I can see how they are learning.” Stone has offered the class most years since 1973, exceptfor the nine years he spent as University Provost, between1993 and 2002. Consequently, it is remembered vividly by generations of alumni. Those who took it remember its rigor and rewards, and those who didn’t simply remember its reputation. How Stone teaches the class is a major part of that. “I remember Geof being very inspiring,” said DavidBradford, ’76, a partner and cochair of the LitigationDepartment at Jenner & Block in Chicago. He said theclass was, by far, his favorite during his time at the LawSchool. “He had a great ability to get people to do theirown thinking and to challenge themselves. He challengedpeople in a very positive way, and he got people to pushthemselves and the limits of their own capabilities.” them, decide who will write the opinions, circulate draftsand respond to one another’s opinions, and revise and editopinions very quickly. Here’s the catch: the students cannot rely upon any realjudicial precedents to support their arguments. Theyapproach the first case as it’s the first case ever to interpretthe relevant constitutional provision and then create theirown body of law over time. Otherwise, Stone said, theresearch would take all their time, instead of the thinking.And that’s the part he most prizes. Each court’s decisions build on one another, as the justices must grapple with their own precedents. Studentsare graded on every opinion they join, without regard towho wrote it, and Stone expects each opinion to respondto the other opinions in each case. By quarter’s end, eachcourt produces a full body of jurisprudence that Stonebinds for them in a book that is commonly 200–300pages, single-spaced. “The demands on the student are enormous,” Stone said,but the rewards are obvious. The opinions get much betterA court meets in the library to discuss the week’s cases. By quarter’s end, Stone will give each member of each court a bound copy of theiropinions. (Examples at top left.) 74374_Constit_Decision Making B_P18_21_p.22-23  Soldiers Story  3/25/13  9:06 AM  Page 220 T H E U N I V E R S I T Y O F C H I C A G O L A W S C H O O L   S P R I N G 2 0 1 3Stone puts it simply: “I want them to come away with amuch better understanding of how to think clearly andhow to write clearly … It trains them to be rigorous andself-critical thinkers.” That heavy-duty thinking was sometimes a midweekchallenge for the “justices,” said Alexis Bates, ’12, an associate at Skadden, Arps, Slate, Meagher & Flom. Shetook the class last winter. “All the cases were right on the line. There were no easycases,” she said. And sometimes, justices choose a side, andthen, “as you’re thinking through and writing out thatopinion, you end up talking yourself out of it and thinking itshould go the other way altogether.” At least one time, oneof her fellow justices changed opinions midweek, and thedissent became the majority, she said. Bradford said the class was great training for his clerkshipand later practice because it taught him how to be persuasive.“It helped us all appreciate how difficult judging could be andwhat type of advocacy or principles might be most appealingto a judge who’s concerned about precedential effect andthe limits of their own roles as judges,” Bradford said. As for the rigor, he has positive memories. “It was somuch fun,” he said. “It was the kind of hard work youbecame so immersed in, and cared so much about, that it never felt like work.” Bradford was one of the first students to take the class,the idea for which came to Stone when he joined the faculty in 1973. Stone, a member of the class of 1971,remembered critiquing many judicial opinions as a lawstudent. He often wondered why it seemed so difficult for judges to write decent opinions. He got his answer soon after graduation, when he clerkedfor Judge J. Skelly Wright in the U.S. Court of Appeals forthe District of Columbia Circuit and for Justice William J.Brennan Jr. of the Supreme Court. Then, when he actuallyhad the chance to write drafts of opinions, he saw howchallenging it was, he said. One of the most difficult thingswas making sure the opinion reflected both the viewpointof his judge and the other judges on the opinion; he hadto strike a balance between what his boss considered theideal argument and what the other judges would agree with. “There are usually no definitively right answers to hardStone said the class is intended to enable students to “work together in a complicated and stressful situation,” because that’s what law practice demands. 74374_Constit_Decision Making B_P18_21_p.22-23  Soldiers Story  3/25/13  9:06 AM  Page 3questions, and even if you do your best, there will be arguments to make on the other side. It’s easy to pokeholes,” he said. “I wanted to give students that experience.”More than anything, he said, the class is “a device forenabling students to work together in a complicated andstressful situation, which is what law practice is like.” Stone’s students say his teaching style is to be alwaysavailable to talk about ideas, but to let the courts figure outtheir own issues. “Especially in the early weeks, figuring outwhat sort of court you are and how you’re going to approachissues and different styles involves a lot of gnashing ofteeth,” said Josh Mahoney, ’13, who took the course lastyear. “Professor Stone encourages that, that it should bedifficult, especially at the beginning.” His court had a lot of “false starts,” Mahoney said, buteventually found their way. “If you’re stuck, ProfessorStone gives you ways to think about an issue. Mostly he’s a lighthouse, so to speak, but you and your group stillhave to try not to crash the boat into the rocks.” The class meets once at the beginning of the quarter, andthen everything is done outside of class: The courts figureout when and how to meet within themselves, and theycommunicate with Stone through emails and in face-to-faceappointments and office drop-ins. At the end of the quarter,Stone has the students over to his house to talk about thecourse. He also hands out statistics on how the present-daycourts voted on cases as opposed to students from decadespast. He changes one or two cases a year, but many havebeen around for a long time. The results are very interesting. For example, Edison v.Eberhart asks whether the East Lansing, Michigan, schoolboard may limit participation in school board elections tocitizens with children attending or soon-to-be attendingthe schools in the district. Between 1974 and 1992, 74percent of judges found that unconstitutional. From 2003to 2012, only 46 percent found it unconstitutional. “I would guess this is because there was a significantchange in Equal Protection doctrine in the real SupremeCourt over time that downplayed fundamental rightsjurisprudence under the Equal Protection Clause,” Stonesaid. “As a consequence, I think students, reflecting in partwhat they learned in their courses, also became less certainabout the merits of that branch of the Equal Protectiondoctrine. They were therefore more likely to uphold thelaw in Edison than were students in the earlier generation.”A change over time is also seen in Gold v. Georgia StateUniversity, where a female student argues that gender S P R I N G 2 0 1 3   T H E U N I V E R S I T Y O F C H I C A G O L A W S C H O O L 21separation in dormitories violates the Equal ProtectionClause. Before 1992, only 30 percent of justices agreed. Inthe 20 years after, that number rose to 52 percent of justices.“In the earlier era the idea of same-sex dorms was stillpretty foreign to them. They simply didn’t yet exist inmost colleges and universities,” Stone said. “By the time of the later set of decisions, many of the students hadexperienced same-sex dorms and didn’t see the idea of suchan arrangement as particularly untoward or problematic.”The longevity of the course is part of what Stone finds sosatisfying. “I find it very rewarding from an educationalstandpoint,” he said. “I can see, and students tell me, andalumni tell me 25 years later, how valuable it was.” Bradford, one of those early takers, didn’t know the classwas still offered. “I’m delighted to hear that,” he said.“Generations have benefited from that class. I’d be surprisedif it wasn’t on a top-classes list for a lot of graduates of theLaw School.” CONSTITUTIONAL DECISIONMAKING WITH GEOFFREY STONEEqual Protection Hypothetical CasesComparative Results 1974-1992 and 2003-2012*Percent of justices voting to hold law unconstitutionalCase Issue 1974-1992 2003-2012Alexander v. Possibly corrupt 73% 59%Alabama economic classificationBarker v. Boston Simply 9% 8%economic classificationDillworth v. Discrimination 98% 99%Damforth against African-AmericansEdison v. Inequality in 74% 46%Eberhart votingFellers v. Fellers Discrimination 87% 93%against womenGold v. Georgia  Sex-segregated 30% 52%State University dorms in public universityHolloway v. Welfare/right 52% 32%Harmon to travelKent v. Kansas Affirmative 47% 50%State University action in public university*note: Between 1992 and 2003, Geof Stone was University Provost and did not teach the class 74374_Constit_Decision Making B_P18_21_p.22-23  Soldiers Story  3/25/13  9:06 AM  Page 4

Constitutional Decisionmaking: A Signature Chicago Law Experience

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1254&amp;context=lsr

Constitutional Decisionmaking: A Signature Chicago Law Experience

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