by Beau Steenken
Normally, I strive to steer clear of politics when I teach. I do so mostly because I teach at a flagship state school that attracts students from across the political spectrum, and I do not want to risk alienating any individual students lest they expand from discounting political statements to discounting statements about research. Also, I think students generally benefit from approaching research as objectively as possible, at least when they first begin. (A certain amount of strategy comes in when we get to researching for persuasive writing, of course, but we don’t do that until the spring semester.)
About the closest I ordinarily come to politics in my class is when I show the 1Ls the clip of the O.J. Simpson trial in which Judge Ito criticizes the prosecution for a failure to Shepardize, which invariably leads to a certain amount of mocking of Marcia Clark. However, this serves a legitimate purpose as it leads my students to remember to use Shepard’s on statutes and rules, as well as cases.
Unfortunately, so far this year I am 0 for 3 in avoiding politics in my classes. In the first class meeting of my 1L Legal research class, I go over the United States political and legal system, highlighting concepts that affect legal research, such as federalism, separation of powers, and the sources of law produced by the system. I finish the class by having the students compare the weights of different types of legal authorities and having them put authorities into hierarchical order. In both my sections of 1L Legal Research this year, I found it impossible to make it through this session without referencing certain recent political happenings.
For example, when I was discussing separation of powers, I found myself saying that this is how our system works currently, though one of our nominees has made noises against an independent judiciary and also to the effect that the legislature should follow the executive’s agenda or pay a price. Similarly, when expounding upon the relationship between statutes and regulations, I felt like I had to reference the trends of obstructionist legislatures and the resulting attempts at expansion of executive power. Finally, when describing high courts as the final arbiters of their jurisdictions’ laws, I had to issue the disclaimer that there might not be many final decisions during times the high court has been reduced to an even number of justices.
Thus, politics have intruded on both my 1L classes. (I also ventured a tad into the political in my third class, Foreign & International Legal Research, though without as good of a reason other than that a student brought up Brexit.) Yet, I fail to see how a class about the U.S. legal system could have gone otherwise at this point. All the statements I made were factual assertions without referencing specific individuals or parties. How are we as teachers supposed to deal with a situation in which making what would normally be neutral factual statements come across as advocating against a specific political side?
Interestingly, the press appears to be having the same problem. Of course, one way out of the dilemma would be to embrace a lack of objectivity given the unique nature of this year’s election. A recent opinion piece by the Washington Post advocates this approach, especially for teachers of civics. (The editorial was speaking of school children, but the same approach could easily apply to law students.) However, I am not quite ready to give up fully on objectivity.
This is mostly because approaching potential pending disasters objectively is a coping mechanism of mine that I find reduces anxiety and the inclination to panic. (Let’s just say that my contingency plan this time around involves Mauritius.) Also, not all of my political/factual statements in class involved the candidate in question, as some were more about a sitting legislature, which I think probably ruins the “singular danger” rationale offered by the Washington Post.
Ultimately, I think I am simply going to continue to make factual statements where appropriate and to use the current political turbulence to demonstrate to the students the difference between legal power in theory and in applied practice. Maybe I’ll point out to them that the system was designed with rational actors in mind but that good researchers need to be able to recognize the existence of irrational actors and to extrapolate from the system as necessary. I have not fully planned out how to deal with it, but I have recognized that it will be much more difficult to steer away from politics this semester than it has been heretofore. We teach in interesting times.