Teaching Law amidst Convulsive Doctrinal Change

Teaching law amidst swirling political and legal change has its challenges. One must decide how much time to devote to doctrine that might soon be relegated to the dustbin of history. For instance, there is no reason for students to learn the vagaries of primogeniture, and little reason to memorize pleading doctrines in equity. In addition, one must determine how to strike a balance between teaching law as politics and reasoned elaboration. When courts jettison doctrine so readily, students lose respect for common law reasoning and may lose the ability to deploy it professionally.

This Essay explores the pitfalls of teaching such rapidly evolving doctrine in the context of the Chevron and nondelegation doctrines, both of which historically have played a fundamental role in the study of Administrative Law. Under Chevron, the Court determines when to defer to agencies’ interpretations of statutes they administer. Indeed, courts have cited Chevron perhaps more than any other case within the past generation. And, under the nondelegation doctrine, the Court has attempted to square Congress’s increasingly expansive delegations of authority to administrative agencies with Article I of the Constitution’s grant of legislative authority to Congress, holding that Congress and not the agency was exercising Article I authority if the originating legislation provided an “intelligible principle” to guide the agency’s implementation of the statutory delegation. Although commentators, and the Court itself, for years stated that the Court no longer actively enforced the nondelegation doctrine, the doctrine has made a surprising comeback.

At the same time, the doctrinal changes provide an opportunity. The changes may help persuade students of the importance of understanding the twists and turns of judge-made doctrine. In both contexts, a study of prior changes in the law provides clues as to what might come down the road and, more globally, should permit students to be better prepared as advocates to confront changes in unrelated doctrines as well.