On tap today in civil procedure: the dispiriting Walker case, in which Justice Stewart holds that the collateral bar rule trumps the First Amendment. It’s a terrific case to teach early in the semester, and scheduling it immediately after MLK Monday can be especially gripping. In Duncan Kennedy’s framing (from The Reproduction of Hierarchy), Walker is a hot, hot case, which makes students quite angry, but leaves them ultimately unsure on how to channel that anger in a legally appropriate manner. Shouldn’t MLK and the ministers have petitioned the court even though it was futile? Isn’t Justice Stewart sort of right that such general rules can’t abide small exceptions, lest we fail to “pay for the civilizing hand of law”? Surely there’s an argument that courts, who lack armies, require special solicitude which the executive and legislative branches don’t.
Well, I’m not so sure about the merits of those arguments, but I recognize what effect they are likely to have on 1Ls. As Kennedy wrote:
“Most students can’t fight the combination of cold cases and hot cases. The cold cases are boring, but you have to do them if you want to be a lawyer. The hot cases cry out for response, seem to say that if you can’t respond you’ve already sold out, but the system tells you to put away childish things, and your reaction to the hot cases is one of them. Without any intellectual resources, in the way of knowledge of the legal system and of the character of legal reasoning, it will appear that emoting will only isolate and incapacitate you.”