Abstract

Excerpted From: Stephen A. Rosenbaum, An Essay on Constructive Outrage: Law School in the Times of the MAGA Supreme Court and Trump 2.0, 80 Washington University Journal of Law & Policy 93 (2026) (122 Footnotes) (Full Document)

There is no agreed upon 'start date.’ For what seems like an eternity, we have fallen witness to a constant and unprecedented attack on our democracy. It is not enough to decry the recklessness and lawlessness of the trump presidency, a spineless and sycophantic congress, and the carte blanche immunity that the nation’s highest court has granted the executive. Our nation is in the midst of a Constitutional crisis, and law schools need to adopt an attitude of 'No Business as Usual’ to offset the creeping normalization of daily democratic dismantlement and instill courage into efforts seeking to reverse the damage.

The rage and despair that many of us in the legal community have experienced since the inception of the imperial presidency—and even earlier with the partisanship of the United States supreme court majority—must be converted into more than analysis, research, reflection and resilience: it demands activism. It is incumbent upon law schools to highlight the gulf between the Constitutional landscape—as it has been taught and understood for generations—and its destruction in real time. They must play a leading role in identifying distortions and offering students something more than a hope and a prayer that the mid-term or 2028 presidential elections will reverse course and restore the Rule of Law (ROL).

Since the American Bar Association (ABA) issued the MacCrate Report, if not earlier, our shared goal in the experiential academy has been to graduate lawyers who—through applied learning and clinical training—are equipped to zealously advocate for their clients. Now, more than ever, we need lawyers who will “further the public’s understanding of and confidence in the rule of law and the justice system …” In concert with their colleagues in the bar and on the bench, they must also call out injustice and misconduct by public officials.

In this Essay, I (1) draw attention to the damage that the nation’s high court has caused and (2) call upon American law schools to foster the professional development of lawyers who will work to reverse the assault on the Rule of Law. The jurisprudence of the dishonorable court will remain with us for decades—atop whatever democratic rubble is left in the wake of the corrupt trump regime. The Langdellian law school diet needs more than a niche course here and there to expose students to the contradictions. The legal establishment—namely, the academy, the bar and the bench—has the potential to serve as a megaphone for dissenters.

Early on in the trump 2.0 administration, the Association of American Law Schools (AALS) called upon law schools to act collectively after the president released a flood of executive actions against universities, the legal profession, the judiciary, and individual lawyers. In response, this Essay proposes a programmatic reorientation of the legal academy—at least in the short-term—under the rubric of Constructive Outrage or Bisesquicentennial Project 2026. Institutions must pilot courses that critically look at the erosion of the separation of powers, hyper-partisanship of the courts, and political polarization that envelops the nation—without fear and apologies for 'breaching institutional neutrality.’ The centerpiece of this initiative is a course that serves as the framework for analysis and discussion. This course must also be imbued with a clinical or skills-based component whereby students undertake constructive research, lay legal education, policy advocacy, litigation, organizational affiliation and grassroots protest, general strikes, consumer boycotts and other collective actions with the focused end goal: restoring the Rule of Law in America. This initiative is aligned with recent proposals by law professors Michael Millemann, Mary-Beth Moylan, Etienne Toussaint, and Rachel López, in addition to those made by the Holloran Center Rule of Law Working Group.

Beyond course offerings, law schools must also ensure that extracurricular activities continuously focus on the themes of safeguarding democratic institutions and ROL through guest speakers, conferences, law journal articles, externships and clinical work, bench and bar forums, media statements, and public demonstrations.

[ . . . ]

These courses can take many forms beyond what is set out above. By no means will any one course address all of these topics; student teams will retain the freedom to work on some of the same research or clinical activities. “Let a hundred flowers bloom”—if I may invoke that Maoist mandate as it was perhaps originally intended. Courses can and should be taught by a variety of professors—but with urgency and enthusiasm. Professor López has made her own vital call for curricular reform:

As democracy faces mounting threats both at home and abroad, law schools must grapple with their role in shaping not just competent lawyers but also engaged citizens capable of safeguarding democratic institutions. Yet the traditional model of teaching students to 'think like a lawyer’ may be inadvertently undermining the very values and norms essential to stabilizing our democracy.

Professor López “provid[es] a blueprint for how law schools can better prepare students to safeguard democracy informed by richer theories of democratic engagement engagement—deliberative and contestatory [sic] democracy.” She identifies “the traits of 'engaged citizenship,’ such as empathy for others, critical thinking, and courage to challenge unjust laws, as essential for lawyers in a time of democratic backsliding.” Professor Toussaint, in turn, proposes a set of “pedagogical principles of public citizenship lawyering” to guide law students in how to fulfill their ethical duties to promote justice and improve access to justice, as prescribed by the ABA Model Rules of Professional Conduct. Professor Cummings observes that there are “deep problems” with American democracy, but “nonetheless … there are better versions of democracy worth struggling to achieve and that in that struggle, lawyers have special roles to play in protecting core principles and practices.” Mindful of the “rise of new authoritarianisms,” Professors Capulong, King-Ries, and Mills (citing Thomas Jefferson), call for democratic lawyering practices which “capture the commitment to the rule of law, the promise of liberal legalism—in particular due process, pluralism, human rights, equality, and equity—and the sanctity of a people’s right to fundamentally change an existing system if it no longer serves its purpose.”

I do not pretend to have all the answers about course content or how to keep this matter front and center without burnout or resignation. I also acknowledge that some may view this endeavor as a provocative or inappropriate role for law schools to assume. I hope that I have made clear that what I propose is more than offering a 'relevant’ course to 1Ls to offset their casebook-driven curriculum as they embark upon their graduate legal studies. It is about instilling the highest level of professional identity and responsibility from Day One at this critical juncture in our democracy. The concepts discussed here should be embedded in every class. As for the standard law school Professional Responsibility course, Ethicist Scott Cummings argues that:

getting students to think more deeply about the connection between individual ethics and public values transcends the one-class model; it requires a culture shift in which ethics is taught 'pervasively’ throughout the curriculum, receiving high-level institutional endorsement and adequate resource allocation.

This is not a time for guarded neutrality. This is not a time to check our passion and anger at the classroom door. This is a time for mobilizing legal institutions and the judiciary to speak out—beyond the confines of classrooms and courtrooms. “America’s slide into authoritarianism is reversible. But no one has ever defeated autocracy from the sidelines.”

Stephen A. Rosenbaum is the Frank C. Newman Lecturer at the University of California, Berkeley; a Visiting Researcher Scholar at Berkeley's Othering & Belonging Institute; a 2025 part-time lecturer at the University of Washington; and Pro Bono Counsel to La Raza Centro Legal.