Teaching the Law School Curriculum - Institute for Law Teaching ...

116 Constitutional Law
On Discrimination
A substantial portion of American constitutional law addresses the problem of discrimination. In 1976, economist
Kenneth Boulding published a brief essay called Toward a Theory of Discrimination. The essay appeared as
chapter 2 of Equal Employment Opportunity and the AT&T Case (MIT Press, 1976).
In the essay, Professor Boulding presents his analysis of the reasons why people discriminate against other people.
Although only six and a half pages long, Boulding’s essay appears, in my view, to explain the causes behind
a wide variety of discriminatory behavior.
I assign Boulding’s essay as we begin our examination of equal protection. During class discussion of the essay,
I pose such questions as:
• Boulding distinguishes between “good” and “bad” discrimination. He says an example of good discrimination
appears in the expression “the discriminating taste.” What is an example of “the discriminating taste”?
Can one use a “discriminating taste” in differentiating among people and, if so, how?
• Boulding observes that, according to economist Gary Becker, people with a “taste for discrimination” can
lose income as a result. How? Do you think people with a “taste for discrimination” can ever gain income
as a result and, if so, how?
• According to Boulding, “[t]here may indeed be some rational grounds for believing false generalizations
and forming images with imperfect cues if the cost of improving the generalizations is too great. This may
be so in the case of highly complex realities, where ignorance, if not bliss, is at least cheap. This problem
emerges very clearly in the assessment of persons, each of whom is an extremely complex reality.” (Equal
Employment Opportunity and the AT&T Case, ch. 2, at page 12) Does this provide a justification for racial
profiling by police in their efforts to combat crime and terrorism?
Our examination of Boulding’s essay leads to a lively and enlightening discussion about the nature of discrimination.
Web-Enhanced Constitutional Law
Dan Levin, Minnesota State University, Mankato College of Business
The key historical currents and events surrounding major Supreme Court decisions in constitutional law are
the subject of courses in American history and United States government in secondary schools throughout the
country. The major secondary school textbooks in use today do an excellent job in describing the major historical
watersheds at the center of constitutional law. Many students attending law school today, however, have never
had the type of course in U.S. history that my son presently is taking in high school. They do not know the historic
context or political or public policy significance of the decisions they are assigned to read. This is a serious
problem.
Several years ago the law faculty at our institution decided to expand the Constitutional Law requirement from
one four-hour course to two three-hour courses. Part of the reason was that students appeared overwhelmed by
the materials now covered in Constitutional Law I. The first course in the two-semester sequence, taught in the
second semester of the first year, focuses on the Supreme Court and the powers of the American government.
Matters discussed include the nature and scope of judicial review, the relationship between Congress and the federal
courts, federalism and intergovernmental relations (the relationship between federal and state government),
and the separation of powers among the branches of the federal government. Most matters involving individual
rights are deferred until Constitutional Law II, taken in the fall of the second year.
For the past several years, I have recommended that first-year law students who feel their background lacking
read a textbook, such as that written by Joan Biskupic and Elder Witt, who also have written Congressional Quar-