An American Constitutional Scholar: Gilding the Lily

No one in one’s right mind would claim to be a scholar of chemistry after just three years of courses even if all of them were in natural science or even just chemistry. Nor would a business student, after just three years in a business school, claim to be a scholar of business, even if those three years were filled with only courses in business. My first degree comes very close to that (which is why I later studied humanities at Yale), and yet it took two more years in a MBA program and six more in a doctoral program (business and religious studied) before I was declared to be a scholar. So it is with a cringe of incredulousness that I read an opinion piece on MSNBC.com in which the author, Jamal Greene, put in his essay’s title, “I’m a legal scholar.”[1] That he avers that the U.S. was then in a constitutional crisis is hardly a trivial claim in American politics, so his claim of being a legal scholar, rather than only a practitioner and instructor, is important and thus should be subjected to a critique. 

That Greene and the university where he was teaching at the time claim in writing that he “is a constitutional law expert whose scholarship focuses on the structure of legal and constitutional argument”[2] gives the American electorate as well as their elected representatives, including the federal president, the impression that the United States really was in a crisis in governance at the federal level. That he had studied at Harvard and Yale does not mean that his B.A. at Harvard counts as a first degree in law, such that his law degree at Yale is therefore a graduate degree in law. To be sure, his J.D., which is just degree name-change from the LL.B. (the B stands for bachelor degree), was not his first degree in college, but what most Americans do not realize is that the shift from studies in Liberal Arts and Sciences to Law (or any other school of knowledge) is lateral rather than higher. Ironically, I learned this from the registrar of Yale’s law school when I registered to take the Law and Religion course in the law school. I wondered out loud why the J.D. program was not in the Graduate Programs Office. “The LL.M. and J.S.D. are the graduate degrees in law,” the registrar replied. She wrote the citation of a book on the history of the degrees, and I did not lose much time in reading it.

That law schools in the U.S. (but not in the E.U.!) hire faculty who have just three years studying law and even title them as professors rather than lecturers or instructors can thus be seen as a capitulation to practicalities and expediency. That the undergraduates in law schools even edit and select papers for law journals means that being published in such a journal cannot count towards tenure in other disciplines. Even law journals edited and reviewed by law faculty who have only the first degree in law cannot count because those journals are not peer-reviewed by other scholars.

I have read essays running fifty to a hundred or more pages in law journals. The essays that I read on federalism resemble undergraduate essays sans editing, and neither underlying political theory nor history figure much in the analyses. When I was a student at Yale, I asked a law student why he thought he could select papers from political science scholars on international law in spite of the fact that the student had not yet taken international law. “Because I can,” he defiantly replied. He had been given the authority.

It is with a similar unsubstantiated leap of authority that Jamal Greene and many other instructors at American law schools claim to be legal scholars. They are thus disproportionately able to influence public policy and the American electorate. Lest it be countered that law schools in the U.S. do not offer the graduate degree programs in law, at least Harvard and Yale do, because Europeans go to those schools after having graduated elsewhere with a degree in law in order to get a masters and doctorate in law so to be able to be hired as a professor of law in Europe. In fact, I used to invite some of those students to a home-cooked Thanksgiving dinner when I was a student, even though I studied historical theology and philosophy of religion. The Belgian couple would bring chocolate and the Italian guy brought wine, and I furnished some American traditional cuisine. Our shared vocation was scholarship.

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1. Jamal Greene, “I’m a Legal Scholar. We’re in a Constitutional Crisis—and This Is theMoment It Began,” MSNBC.com, April 26, 2025.
2. Ibid.

The University of California at Berkeley

In visiting a university even for a short period of time, a surprisingly deep grasp of its dominant organizational culture's mentality is possible, especially if it is foreign to the outsider's perspective and yet draws on  instinctual urges whose imprints one has previously seen. It is perhaps human, all too human to relish sending harsh messages to outsiders, albeit indirectly because cowardness and self-illusion are included with the appetite for blood. This can be so at a university even if scholarly visitors are among the targets. The primitive instinctual urge to aggressively harm people by reminding them unnecessarily that they are not in the tribe can have sufficient power to overcome other contending urges to characterize the very culture of an organization. I will argue that the University of California at Berkeley can be characterized as such. For I witnessed this triumphant urge in rather  obvious behavior of some faculty and administrators. I came rather quickly during my visit to grasp the nature and roots of the favorite blood-sport of enough rude faculty members to get a picture of those primped  up, intellectually stunted "scholars" at that heavily passive aggressive university. The message of exclusion for taxpayers visiting the campus and scholars invited to give a lecture there, I being neither, was made clear to me by a student employee at the main library,  which tellingly is closed on Saturdays even during the semesters: Even if a visitor on the large campus does not have an umbrella and rain is pouring down, the university's shuttle buses are only for students, faculty, and staff. The student enjoyed his power to say no to me; I could not detect even the slightest tone of shame in representing such an inhospitable institutional host. Bad air! Instead, the he relished the firmness in the power to say no, which is to say, to exclude. In contrast, the campus shuttles at Yale, ironically a private university, transport anyone around campus! So much for California being easy-going. So much for UC Berkeley sporting intellectually curious and passionate scholars in search of new ideas from visitors. Rather, Nietzsche’s new birds of prey, whose spite naturally issues out from deep ressentement, populate the faculty and their bosses. So much for even common courtesy and gratitude to California taxpayers and distinguished professors from other universities invited to deliver a lecture; if you are walking around campus or walk out of a library and get wet, tough luck! Public is apparently below even common.  

The full essay is at "The University of California." 

Experts on the Supreme Court: Lawyers Who Teach

For all the American lawyers and law “professors” who had been predicting on the basis of their "expertise" that the three days of oral arguments before the U.S. Supreme Court meant that the Affordable Healthcare Act would go down, the Court's decision must have been a rude awakening. Immediately after the ruling, the decision came "as something of a surprise after the generally hostile reception the law received during the six hours of oral arguments."[1] This is an understatement at the very least.

Lest the public be taken in by the predictions of judicial "experts" in the future, we might want to recalibrate just how much insight the so-called experts really have on the inner workings of the U.S. Supreme Court.

           This public face of the U.S. Supreme Court may be distinct from what goes on 

behind the curtain.      (NYT)

Pete Williams, a journalist, reported on NBC Nightly News after one of the days of oral arguments that “Obamacare” was in trouble. Unless Williams had clerked at the Court, it is unlikely that he knew the Court’s inner workings, not to mention how the justices use oral arguments. For example, a justice might use the arguments to test out legal theories. Because I have not clerked at the Court, have no knowledge of its inner workings, and cannot get into a justice’s head, my projection out from the arguments can only be conjecture. Sadly, the journalists covering the case showed no such hesitancy concerning their own knowledge of the court and, indeed, the oral arguments themselves.

Lest we turn to American law “professors” as experts having even more insight into the Court’s workings than do the lawyers who have argued before the justices, it is important to remember that American law schools hire lawyers rather than scholars to teach law. Whereas legal scholars have the doctorate in law, the J.S.D. (Doctorate in Juridical Science), to practice law one needs only the undergraduate, or first, degree in law (the LLB or JD).  The LLB nomenclature was changed in 1900 at the new law school of the University of Chicago as a marketing ploy to attract students. Students had been complaining about having only a BA and LLB (two bachalors degrees) after seven years of college. Even with the name change, however, having the first degree in Liberal Arts and Sciences and the first degree in Law still constitutes two undergraduate degrees.  One must go on in the same body of knowledge to graduate degrees before one can be considered to have mastered it (i.e., masters degree) and then to be a scholar of it (i.e., doctoral degree).  To treat a lawyer with one degree in law as though he or she were thereby a scholar of law omits two degrees of law (the LLM and JSD).

So when Benjamin Barton, who teaches law at the University of Tennessee, says, “I am a law professor and have been quite interested in this case,” we ought to view him rather as an instructor rather than professor because he is not a scholar of law (i.e., having earned the JSD degree).[2] A clue to his true situs, educationally speaking, is in his next statement: “I had a pretty hard time following those arguments.”[3]  He was referring to the oral arguments. Benjamin Barton is a lawyer who teaches law as an instructor. We should neither blame him nor be particularly surprised that some of the arguments eluded him.

In the E.U., by the way, one must have the equivalent of the LLB/JD, LLM, and JSD degrees to join a faculty of law as a professor. In fact, one must have published one’s dissertation and published another book too, at least before one can become a full professor (it might be a requirement even to become an assistant professor). I know such a law professor, and his legal education goes far beyond a year and a half of survey courses and a year and a half of senior seminars. By “beyond,” I do not simply mean more seminars.

A doctorate is more than just a few additional years of classes. One must sit for long comprehensive exams (over anything in the discipline), and oral exam, as well as write and defend a book-length work of original research (i.e., a dissertation). So adding another year to a physical therapy program does not make the degree a doctorate. Also, a doctorate must be the terminal degree in a body of knowledge, whether or not a particular school offers the degree. Lest a masters be presumed to be a terminal degree (e.g., the MFA), the comprehensive exams and dissertation must also be part of the degree (as well as advanced seminars).

Just as everyone today is a professional, we as a society have a habit of naively assuming that someone is an expert simply because they claim to be one. Whether journalists who presume to know how the inner workings of the U.S. Supreme Court or lawyers who teach law yet somehow have trouble following the Court’s oral arguments, a good bit of self-restraint is called for in terms of self-entitlement.

1. Mike Sacks, "Supreme Court Health Care Decision: Individual Mandate Survives," The Huffington Post, June 28, 2012.
2. Adam Liptak, “Justices’ Celebral Combativeness on Display,” The New York Times, April 3, 2012. 
3. Ibid.