Who Teaches Constitutional Law?
Merritt, Deborah Jones, Constitutional Commentary
Constitutional Law is a plum teaching assignment. William L. Prosser, then Dean of the University of California School of Law at Berkeley, complained more than forty years ago that "[t]he overwhelming majority" of teaching applicants "have wanted to teach Constitutional Law."(1) More recently, a survey of constitutional law professors established that 130 of 134 professors taught the course by their own choice; only four professors had succumbed to institutional pressure to teach constitutional law.(2)
There are a variety of reasons for the appeal of constitutional law. The subject raises provocative, highly publicized issues that are basic to our legal system. Topics for scholarly articles abound, and some professors believe that law review editors favor articles on constitutional topics.(3) Professors of constitutional law also have opportunities to enhance their reputations by arguing high profile cases before state and federal courts or by testifying before government bodies. Even if they do not participate actively in litigation, their words and theories often penetrate judicial opinions.
But who gets to teach this popular, influential course? Do academic credentials or work experience make some professors more likely to teach constitutional law than others? Is constitutional law the exclusive province of professors who have clerked for Supreme Court Justices? Do race and sex affect teaching assignments in constitutional law?
As part of a larger empirical study of law school hiring, I analyzed variables such as these to determine what factors increased the odds that a recently hired professor would teach constitutional law. The study included 1046 professors who began tenure-track positions at accredited U.S. law schools between the fall of 1986 and the spring of 1991.(4) In this essay, I briefly describe the study's methodology and principal findings related to the teaching of constitutional law. I then offer some comments about the implications of these findings for the way scholars teach constitutional law and contribute to constitutional jurisprudence.
I. STUDY DESIGN
Using five successive editions of the AALS Directory of Law Professors,(5) I identified 1094 professors who began tenure-track positions at accredited U.S. law schools between the fall of 1986 and spring of 1991.(6) These 1094 professors comprised the entire population of professors who started tenure-track positions during that period. I focused on this group of recent tenure-track entrants in order to analyze contemporary trends in law school hiring and teaching assignments. After identifying the relevant population, I obtained biographical data for each of the professors from the Directory, other published sources, and resumes I solicited from the professors.(7)
For the analyses described in this paper, I excluded from the research population forty-eight professors for whom I lacked information about teaching assignments. The remaining 1046 professors listed at least one teaching assignment on their resume, in the Directory, or in some other published source.(8) From these listings, I determined whether each professor had any experience teaching constitutional law. If a professor had ever taught a course in this field, I coded the professor as positive for my dichotomous dependent variable, teaching constitutional law.(9)
In searching for the factors that would predict whether recently hired faculty members taught constitutional law, I tested twenty-eight independent variables. These variables included most of the academic credentials and work experiences thought to affect law school hiring: prestige of the J.D. school;(10)law review membership and editorial positions;(11) possession of a master's degree in law; possession of a master's degree in a field other than law; possession of a doctoral degree in a field other than law; experience as a law clerk for a state appellate court (including both state supreme courts and intermediate appellate courts), federal district court, federal court of appeals, or the United States Supreme Court;(12) and experience in nine types of law practice. …