Supreme Court Nominations

Wait Until Law School to Write About Law, Kagan Tells Grassley

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Elena Kagan said today that American constitutional law may be best taught in the second year of law school, and that in general students should not necessarily attempt scholarly writing about legal issues before entering law school.

Sen. Charles Grassley, R-Iowa, asked Kagan this afternoon about why the Harvard Law School faculty decided to make international or comparative law a requirement for first year students but not U.S. constitutional law.

“Are you saying they don’t need to know constitutional law?” Grassley wondered about law students. “Why is it more important for a law student to take a course in international law?”

Kagan said the study of constitutional law was “absolutely basic” for law students, but some law schools, including Harvard and the University of Chicago (where Kagan earlier taught), believe it is “best taught, and more thoroughly taught” in the second and third years.

International law is “something all students today should be familiar with,” she added. On the controversial topic of U.S. judges and U.S. Supreme Court justices citing foreign law, Kagan told Grassley that she is in favor of jurists getting “good ideas wherever they come from,” but she wouldn’t give “independent precedential weight” to foreign legal sources.

Grassley then asked Kagan about a 1983 thesis she wrote while a postgraduate student at Oxford University in England called “The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method.”

But before Grassley got into details, Kagan told him, “Let me just say that it’s dangerous to write a paper about the law before you’ve spent a day in law school.”

Grassley’s reply: “If I accept your answer, it’s going to spoil five minutes [of questions] I had.”

Amid laughter in the hearing room, the senator gave in. “Let me accept that, and say you learned a lot by going to law school. I don’t say that to many people,” added Grassley, who noted almost under his breath that he’s not a lawyer (one of only a few nonlawyers on the Judiciary Committee).

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