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Friday, August 11, 2006

The Siren Call of Chemerinsky

My faculty mailbox groaned today (not literally -- figuratively) with the brand spankin' new third edition of Erwin Chemerinsky's treatise on constitutional law.  Congratulations are in order to Professor Chemerinsky on its publication.  My constitutional law students find it an indispensible guide to the subject, and I too find it useful when I am approaching a subject area to dip into Chemerinsky, who does a nice job of bringing structure to various subfields within this massive subject and reminds me of the ways in which I am going to want to set up subsequent cases as I move through the material.  Chemerinsky also does a nice job of laying out the pros and cons of a particular doctrinal line before getting to the nitty-gritty.  I'm sure it's a big seller and a popular guide for law students everywhere.

But is it too popular?  I don't mean to denigrate the book, which is useful, as I've said, and pretty fair-minded.  But I wonder whether students don't over-rely on this book.  Like most professors, I teach constitutional law in my own way, and it's something of a teeth-gnashing moment to read an exam that closely tracks Chemerinsky's outline of a legal doctrine in ways that depart from my own description of that doctrine in class.  Students should recognize that Chemerinsky's book is most useful as a general roadmap, not a substitute for their own obligation to read the cases and reach their own conclusions about what the doctrine means.  If they substitute his thinking for their own (or, worse still, if they substitute his thinking for the crumbs of genius I let fall from the podium), they will lose some of the pleasure of learning this involving subject.  Moreover, although I do think Chemerinsky is fair-minded, one detects at least a hint of a thumb on the scales in favor of his own view of the doctrine at times, and I would prefer it if students didn't let him have the last word on these debates.

At the end of the day, I always recommend that students looking for a good guide to the area take a look at this treatise, and many of them do.  (I introduced Chemerinsky a couple of years back at a symposium at Southwestern, and said I felt at times as if he were the co-teacher of my course.)  But I also caution them to use it cautiously -- to use the treatise primarily as a guide to help orient them as they read the cases, and not a substitute for their own thoughts about constitutional law.  Yet, every year, I know some students will insist on overusing the treatise.  I wonder whether other constitutional law professors have encountered the same phenomenon, and whether they offer similar words of advice to their students.  (And not just constitutional law professors!  I seem to recall a run on copies of Chemerinsky's federal jurisdiction treatise when I was taking federal courts at Columbia a lifetime ago.) 

For that matter, I wonder whether Chemerinsky encounters this problem!  Does he stand up before his classes at Duke and say, "By all means, read my treatise.  But take it with a grain of salt....?"

Posted by Paul Horwitz on August 11, 2006 at 05:38 PM in Books | Permalink

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Comments

"but those students who overrely on a treatise or other study aid lose the experience of working through the cases"

What about those professors who overrely on a treatise? When I took con law, I too used Chemerinski to prepare for class as well as the final. Typically, I would sit through class with treatise, my brief, and my laptop (occasionally with the casebook in front of me as well...).

One particular day, something the professor said sparked a curiosity about something I recalled from the treatise the day before, and I flipped through the pages skimming it quickly. Suddenly, the words coming from the professor's mouth and the words on the page were completely identical. I looked up and he was 10 feet away from the podium on the other side of the room, casually lecturing us as though he's providing his own take on the material! Needless to say, I simply stopped paying as much attention during lecture and focused on the treatise for the rest of the semester, and got an A in the class....

Posted by: P.A. | Aug 14, 2006 8:52:11 AM

I had in Three distinctly different Con law professors. One was the veteran professor who had taught the course for years, the 2d was teaching law for the time, and the third was the former Associate Justice Arthur Goldberg. To be fair Goldberg's course was not a
traditional con law course, but a course his own creation "Supreme Ct Dec Making." As to sparking independent thought Goldberg did the best job. Perhaps because he was free of traditional restraints. In his class, we engaged in rpg, pretending to be arguing current unheard but docketed cases before our classmates who pretended to be justices.
No amount of outside reading,
could have been a better spur to independent thought.

Posted by: Ronald X. Groeber, Ball State Univ | Aug 13, 2006 8:07:14 AM

"but those students who overrely on a treatise or other study aid lose the experience of working through the cases"

I think law profs generally overromanticize the process of learning the law. Or actually, it would be entirely appropriate if it wasn't for the sad reality of curved exams at the end of the semester. These exams involve regurgiting information in pleasant patterns, so the advantage of pre-digested materials is pretty obvious. And in the arms race, not using books like Cherminsky is nuts. Now, if law profs graded for originality, which they don't, or rewarded sophistication over volume, which they also don't, then maybe you could make a case.

Posted by: Bart Motes | Aug 12, 2006 11:46:40 AM

Andrew, I sympathize with your plea for charity, but I think you may have made some incorrect assumptions. First and most obviously, I do recommend Chemerinsky for students who want an additional resource. Second, it's not that I insist that every student think like me and parrot my words; far from it. It's just that in some cases, as Jonathan's post suggests, some students use Chemerinsky not as one more input along with lectures and casebook reading, but as a substitute. I understand the need to impose order on the material, which is why I regularly summarize and synthesize difficult areas with my class; but those students who overrely on a treatise or other study aid lose the experience of working through the cases, and sometimes assume too *much* coherence in the doctrine. When it comes to close and difficult cases that push the boundaries of the doctrine (which is pretty much the stock in trade of exam questions), they may be less able to appreciate the limits of what the treatise says and less able to exercise the judgment that comes from having read the cases closely. Finally, you should not assume that everyone who uses the treatise would welcome further note material. I think the opposite is true. (In any event, I use a note-heavy book -- Sullivan and Gunther -- and regularly recommend additional reading.)

Having said all that, and having had the same experience as Jonathan with respect to overreliance on Chemerinsky, let me add that what I have described is not typical of most of my students, who make sound use of both the casebook and supplemental reading and who do a wonderful job of working through the course with me. My caution against Chemerinsky as a crutch or as a substitute for reading the cases is, I think, justified by my experience with some students, but by no means all of them.

Posted by: Paul Horwitz | Aug 12, 2006 10:57:51 AM

I recommend Chemerinsky to students who want an additional resource. It has the added benefit of being a paperback, so it's less expensive than the other treatises I place on reserve.

I too find that I have many students that over-rely on Chemerinsky - at times even substituting it for the casebook's discussion of various cases and doctrines. Based on conversations with students, it also seems that those who rely on Chemerinsky the most, have the most trouble in class. I see two possible explanations for this: 1) Weaker students rely on Chemerinsky because they have trouble with the material, so their class performance is lower; or 2) Those students who over-use Chemerinsky are failing to engage the material, and this is what lowers their class performance. I suspect both play a role, but the latter is more prevalent than many students realize.

JHA

Posted by: Jonathan H. Adler | Aug 12, 2006 8:43:17 AM


Like most professors, I teach constitutional law in my own way, and it's something of a teeth-gnashing moment to read an exam that closely tracks Chemerinsky's outline of a legal doctrine in ways that depart from my own description of that doctrine in class. Students should recognize that Chemerinsky's book is most useful as a general roadmap, not a substitute for their own obligation to read the cases and reach their own conclusions about what the doctrine means.

(Emphasis added)

But in all seriousness, a more charitable view might be that having heard your view, and having read his, they have reached their own conclusions, and have concluded that they are more convinced by his. And why shouldn't they--he has hundreds of pages in which to make his case, whereas you have only a few hours of lecture to make yours, teaching, no doubt, out of a casebook that consists largely of redacted judicial decisions, with a few "notes" in the back to provide context. The way law is taught, it is no wonder that students will grasp at anything that will provide order to the chaos they find themselves immersed in, and nowhere is this more true than in Con Law, with its indeterminacy and poor judicial reasoning (even for those cases I agree with, it is hard to say that Roe or Brown or Lawrence is convincing). So given the choice between your sketches in lecture and his systematic presentation, it is natural for them to select the latter, if they have no exposure to anything else.
Perhaps I am being unrealistic (Lord knows there's enough reading for 1Ls as it is...), but if your goal is truly to stoke independent thinking, you should present them with more analytic or synthetic material than just Chermerinsky and your own lectures, such as selections from books or law review articles that demonstrate the range of how different scholars make sense of the case law. Some of my favorite casebooks are the ones that made extensive use of such secondary material. I think demonstrating diversity is far more effective in promoting critical thinking than giving someone one opinion, and telling her to take it with "a grain of salt"--and provides them with a model of how to begin fashioning their own ideas.

Posted by: Andrew Carlon | Aug 11, 2006 9:29:24 PM

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