January 18, 2005

The long winter break is over.

Today is the first day of what we call the Spring semester. It's zero degrees outside. So don't go outside! I've already darted out to pick up the paper. Didn't even put on a coat. It's never so cold that you have to put extra clothes on just to go down the front walk and pick up the paper.

No lingering over the NYT this morning. Just a snappy run through the pages, and then I will put on a coat, dash to my car, dash once again from the Business School garage across University Avenue, and into the Law School. The atrium will be full of students again. Yesterday, the atrium door was locked. I had to fish out my key to enter the deserted building. But today, everyone will be back. The end to the break is never a weary, "vacation's over" feeling. It's always high energy and optimistic -- even when it's the Spring semester beginning, and it's dark and cold outside.

The first class, today at 9:30, is Federal Jurisdiction (aka Federal Courts), the law school course most known for mystery and arcana. Why do we have federal courts anyway? Why do you spend a whole semester answering that question? And how can you have answered the question for a whole semester for twenty years and still have an energetic, optimistic attitude about doing it all over again?

I once was on a panel of fedcourts lawprofs where innovations in teaching the course were being explored, and a famous old fedcourts prof took the anti-innovation position. He said "The topics are exhausted ... but not for the students." It was all new to them he said, and an important exercise in learning the ways of the legal process. We shouldn't teach the course to find interesting new things for ourselves, but to take the students down the well-worn paths for the first time. He said he was old enough to have had Hart and Weschsler as his teachers. He said he used a 19-year-old edition of the Hart and Weschsler casebook at one point, "and it didn't matter -- the questions were the same!"

Hey, the old lawprof sounds pretty cool. So who was he? If you're going to be quoting him like that, you should name him.

He was Henry Monaghan. Here are two other things he said that day in 1994:
I teach Constitutional Law as a process course -- and there's only one correct answer: the Supreme Court shouldn't decide it.

I once put a question to Herbert Wechsler and he said, "Well, it's rather obvious," and I said, "I agree. Which way is it obvious?"

If I had the time, I'd scan and display the two ink drawings I made of Monaghan as he was saying these things that I wrote down in speech balloons ten years ago. But I don't have the time. I've got to teach Federal Jurisdiction soon, and I consider myself terribly fortunate to have that obligation.

UPDATE: Matt Barr, Chicago-Kent College of Law, class of 1994, writes:
The law school course most known for mystery and arcana? Federal jurisdiction? Aren't they teaching property law anymore? Kids today.

I went into property development after law school and over the years never once came upon a real-life situation where I had to apply The Rule in Shelley's Case or the Rule Against Perpetuities or anything like Fee Simple Conditional to A with Life Estate to B, Remainder to B's children. I bet if I'd ever set foot in a federal court after law school, though, I'd've drawn on many useful things I learned in Federal Jurisdiction.

P.S., my Con Law professor taught Con Law as a "procedure" course as well, even to the extent where he pointed out that "substantive due process" is an oxymoron. I was fortunate enough to take the course from visiting professor John Hart Ely. (No non-giant in his field could have gotten away with such apostasy, I suspect.)
ANOTHER UPDATE: Here's a nice email from John M. O'Connell:
Thanks so much for the wonderful anecdote about Professor Monaghan. I am a Columbia Law School Class of 1993 grad who had the honor of sitting for two of Professor Monaghan's classes: Constitutional Law and Federal Courts. The second was particularly memorable, as Professor Wechsler, for the last time, taught the final third of the course. Professor Monaghan often called Wechsler the greatest legal mind to pass through Columbia (high praise!). Wechsler's diminished hearing made interactions with the class awkward, but his description of the behind the scenes details of New York Times v. Sullivan were riveting (including the story of Justice Brennan's wink to Mrs. Wechsler during oral argument in another matter some time after the Sullivan argument--but before the decision was announced--which Wechsler took to mean that Sullivan would go his way).

As for Professor Monaghan, his curmudgeonly persona and penchant for the provocative turn of phrase kept some students at a distance. (For example, I recall him saying, in substance, that while Roe v. Wade was a poorly reasoned decision, if men and not women bore children, abortion would be a sacrament.) Most students assumed that was "conservative" (or what passes for conservative at a place like Columbia), because he was not young and hip and he had little patience for the climate (the height of "political correctness") and the intellectual/legal fads of the day (e.g., Crits--ugh!). But it never seemed that simple to me and to this day I do not know his political leanings. I think this is a testament to his classroom method, which was questioning (not classically Socratic, because he did not call on unwilling students), rather than declarative.

Persona notwithstanding, those who made the effort found him to be a warm and kind man and a caring teacher. He took a great deal of time and care in commenting on a note I was working on for publication in the Columbia Law Review. Later, as an articles editor on the Review, I had the pleasure of working with him on an article concerning The Protective Power of the Presidency--and he was very generous in giving me far more credit and praise than I deserved. We spent plenty of time in 1992-93 talking about that article, the state of the law, and even my career plans--sometimes while shooting hoops in Riverside Park. (He'd lost a step by then, but still had a killer hook shot!) And one day I even had the surprising good fortune to be in his office (dominated by a bust of his hero, George Washington) when Justice Scalia paid a surprise visit while in town to film one of those old Fred Friendly PBS roundtables.

Years later, when I was looking for some advice about a contemplated career move, Professor Monaghan was warm and exceedingly generous--even though we had been out of touch for years.

Anyway, just thought I'd share. Professor Monaghan was and is an important figure in American legal scholarship in my view . . . but an even better person.

No comments: