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Law schools aren’t preparing students for the originalist judges they’ll face

The Supreme Court increasingly follows the legal theories of originalism and textualism, as opposed to the “living Constitution” view that prevailed among earlier generations of justices. So do a growing number of federal appeals court judges.

The jurisprudence that flows out of these theories will shape the law for the next generation, if not further. Left-of-center legal groups such as the ACLU are already deploying arguments based on originalism and textualism to sway the high court.

So how well are American law schools preparing students to make legal arguments in such a landscape?

Not well at all, according to Nicholas Gallagher, editor-in-chief of New York University’s Journal of Law & Liberty, one of a handful of student-edited conservative law journals.

Law school faculties are too homogenous to teach originalist and textualist thought as anything more than “a second language,” even if they wanted to, he writes in National Review:

At worst, [students] are taught fantasy law — professors skimming past the law as it is, much less as it is likely soon to be, in favor of theories that would be adopted only if the Warren Court were resurrected.

Gallagher posits that homogenous law faculties have failed to develop an “overarching counter-idea to originalism” because they haven’t been challenged the way originalists have:

Instead, the legal Left has ensconced itself in a world where the main debate is between the center-left liberals and hard-left progressives. The current issue of the Columbia Law Review features articles such as “Can Free Speech Be Progressive?” Top-school profs reacted to the Kavanaugh confirmation by calling for the packing or abolition of the Supreme Court. And the student bodies look upon the professors like Jacobins upon Girondins.

Law students aren’t likely to learn winning modes of argument even from more centrist-sounding journals, and as a result they are unlikely to be hired by the firms that have to make these arguments to win their cases, Gallagher says.

“If legal education becomes less tied to the actual law and more blatantly partisan,” conservatives should put increasing pressure on the “American Bar Association cartel” to justify the length and expense of law school.

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