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Thursday, September 14, 2006

Using Treatises as Required Reading

For the first time this semester I am requiring my constitutional-law students to read both the traditional casebook and a student-focused treatise.  I have four hours per week to cover all of constitutional law, and I found that the case method made it too difficult to cover the subject with the necessary breadth.  I did not want to sacrifice depth of coverage entirely, however, by adopting a lecture-based teaching model (I'm far too much a Kingsfieldian for such a radical approach), so I have adopted a hybrid model.

For the "heart" of the course as I teach it -- equal protection and fundamental rights are the most notable elements (portions of separation of powers being covered in a required administrative law class) --  I continue the usual case method.  But for other areas that I had skipped or covered cursorily in the past -- dormant commerce clause, state action, justiciability -- I assign about 50 pages per class from the treatise. 

The results have been better than expected so far.  The treatise classes allow for a discussion about cases but allow for students to see the big picture more clearly than they do when they read a few "representative" cases accompanied by a note.  There is a cost, of course -- students don't have that opportunity to develop their skills in case analysis -- but I think in moderation the plan has been beneficial.  How often have others tried to use this sort of supplementary material as required reading in their courses?

Posted by Michael Dimino on September 14, 2006 at 02:24 PM in Teaching Law | Permalink


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I would bet that most students aren't reading it for Chemerinsky's "viewpoint" but simply for clarity in sorting out some of the more complex areas of Con LawI bet you're right - but the question is, to what extent is a 1L able to distinguish between what is viewpoint and what is an objective discussion of "some of the more complex areas of Con Law"? It is not a standard feature of treatises (particulary those written by people who believe that They Are Right) to place opinion on specially-colored blue pages to ensure the reader is left in no doubt which is which. So in the area of sovereign immunity, per your example, whether or not that is a doctrinally complex area, it is certainly not an area devoid of disagreement and opinion; if you asked Chereminsky to sum up his conception of soveriegn immunity, and had William Rehnquist write a similar essay, I think they would evince quite different conceptions.

Posted by: Simon | Sep 14, 2006 10:16:07 PM

I found the Chemerinsky treatise helpful in connecting the dots in my Con Law class. I didn't refer to it for all reading assignments, but instead used it where necessary -- e.g., when the professor's lectures weren't clear on a topic or I encountered some confusion. I would bet that most students aren't reading it for Chemerinsky's "viewpoint" but simply for clarity in sorting out some of the more complex areas of Con Law -- how particular cases relate or for a succinct overview of a particular doctrine or line of cases (see, e.g., his helpful discussion of the 11th Amendment jurisprudence). When it comes down to it, students have to take an exam at the end of the semester that will require them to apply specific tests to issues presented. Some law professors like to stay theoretical to the point that the analytical steps are lost, to students' detriment. When that happens, refer to Chemerinsky. But don't overstate the treatise's importance.

Posted by: con law grad | Sep 14, 2006 9:41:16 PM

I actually think it's better to start with individual rights. My conlaw professor was wonderful, and focused on SOP, but alas, I was too unfamiliar with law generally to have any clue what he was talking about. After taking some common law courses, and some statutory/regulatory courses, I think it'd be much easier to understand the "structural" stuff in conlaw.

OTOH, I might not be representative. On the first day of class, I had to have a classmate explain to me that "Congress" meant the House of Representatives and the Senate (I did not know that before...scary, I suppose).

But in any event, though I agree that the Articles are the "core" of the constitution, I don't know that starting off with the Bill of Rights necessarily perverts one's view of the document-- I know that focusing on SOP initially didn't do much to help me, as I was just completely lost.

Posted by: andy | Sep 14, 2006 8:06:38 PM

Mike,I would be derelict in my obligations to my students if I taught constitutional law in a way radically different from the way the profession now conceives of the course.I'm really not sure that I agree that's true. If the way that ConLaw is taught radically differs from what ConLaw really is, then surely it disserves students to say "look, this course completely misses the point, but because everyone misses the point, this is how it has to be taught"? Somebody had to be the first lecturer to say "every other geography course in Europe will teach you that the Earth is flat, but in my classroom, you will learn that the Earth is round," and I think that guy served his students well, swimming against the tide or not. Does it suffice to say that the structural elements are taught elsewhere if the students come to a ConLaw class and are taught - by inference, at the very least - that ConLaw is all about rights and equal protection?

I recognize that Chemerinsky's point of view is not well hidden from his readersHis point of view is not well hidden if one understands that it is a point of view. If students go to a ConLaw class that is primarily about rights and are given a purported ConLaw treatise that focusses on rights, are they not going to naturally be inclined to think "well, gee, maybe ConLaw is about rights"? I mean, I don't know; to someone who thinks that the primary focus of the Constitution is rights, and that the Constitution is the primary vindicator of our rights, perhaps it makes perfect sense within that paradigm that courts should find new rights? Paradigms start with ideas.

After all, as Ethan and Gowri noted in April, isn't part of the process to challenge students' expectations? In a land where school children are taught the bill of rights as the Constitution (and that it evolves, no less), and in which the Constitution that Democratic members of the Judiciary Committee seemed to be operating from in recent confirmation hearings was a bewilderingly and completely different document to the one in my breast pocket, shouldn't there be a bit more... y'know... Challenging?

Today's middle school student is tomorrow's law student, and today's law student is tommorow's judge. Isn't it more important to get them on the right (that is, correct) path than because Chereminsky's hoping the court will discover a new crop of rights next term and most of the academy feels the same way?

Posted by: Simon | Sep 14, 2006 6:00:14 PM

It would have been clear had it not been for my mistake in using italics to emphasize a passage in a quote that I italicized for style. ;) I apologize; the quoted passage - with the emphasis I had intended to add - should say that Chereminsky characterized the Rehnquist court's adoption of strict scrutiny as the test for racial classifications as having "adopt[ed] strict scrutiny as the test for racial classifications benefiting minorities," a characterization which is not only inaccurate, but flies in the face of the entirely underlying premise behind the Rehnquist Court's adoption of strit scrutiny, as expressed in Justice Scalia's Croson concurrence, that:

The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, can no more be pursued by the illegitimate means of racial discrimination than can other assertedly benign purposes we have repeatedly rejected ... '[t]he lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society' ... It is plainly true that in our society blacks have suffered discrimination immeasurably greater than any directed at other racial groups. But those who believe that racial preferences can help to "even the score" display, and reinforce, a manner of thinking by race that was the source of the injustice and that will, if it endures within our society, be the source of more injustice still.Croson, 488 U.S. at 520-28 (quoting A. Bickel, The Morality of Consent 133) (1975). Cf. Adarand, 515 U.S. at

239 (Scalia, concurring) ("government can never have a compelling interest in discriminating on the basis of race in order to make up for past racial discrimination in the opposite direction. Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race ... To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred") (quote marks and citation omitted); id. at 240 (Thomas, concurring) ("good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of [affirmative action] is at war with the principle of inherent equality that underlies and infuses our Constitution").

Chereminsky's comment is suffocating under the unbearable burden of being a white man in a world where racial discrimination is only racial discrimination when it is meant to keep the black man down. He does not pause, for an instant, to consider that all discrimination discriminates against someone, or that even were this much not true, it is far from universally agreed that the effect of positive discrimination is positive even for those it is intended to "help." I'm sure he is sincere in his views, and that he really does believe that there is a difference between discriminating "benefitting" minorities vs. that which hinders them, but he is certainly smart enough to be aware of the blatantly false nature of his implication that the Rehnquist court enforced strict scrutiny only in "good discrimination" cases rather than rejecting discrimination no matter whom it was directed against.

Posted by: Simon | Sep 14, 2006 5:44:51 PM

Simon - Could you please explain what you think is wrong with the quoted passage? Is it the use of "benefit"? Or is there something bigger that I'm missing?

Posted by: default | Sep 14, 2006 4:37:39 PM

I agree with you that the structural provisions of the Constitution are at the "heart" of the document. But the heart of the _course_ is the portion dealing with individual rights. I enjoy teaching and learning about the separation of powers and federalism -- Justice Scalia's seminar in Colorado last year was a blast -- but I would be derelict in my obligations to my students if I taught constitutional law in a way radically different from the way the profession now conceives of the course. Furthermore, as I noted, the structural elements (particularly separation of powers) are covered in other courses, including administrative law (which all of my con. law students are taking this semester as well).
On your second point, I recognize that Chemerinsky's point of view is not well hidden from his readers, but the book is, nevertheless, well done overall and by and large points out both sides of arguments. And its publication this summer ensured that I would go with it this year rather than with some of the other available choices.

Posted by: Mike Dimino | Sep 14, 2006 4:02:22 PM

More on-topic, one has to ask - is it really appropriate to assign to students a book by a man willing to characterize the Rehnquist court's adoption of strict scrutiny as the test for racial classifications as having "adopt[ed] strict scrutiny as the test for racial classifications benefiting minorities," p.1334 (emphasis added)? There are treatises and there are treatises; while I realize that it would not fit with your view of what lies at the heart of the Constitution, why not assign, for example, Cooley's treatise instead of Chereminsky's? Better that they have no knowledge of the intervening century or so of developments than one that is so decidedly skewed; it is far easier to build on an empty lot than it is to clear an abandoned but developed one.

Posted by: Simon | Sep 14, 2006 3:30:12 PM

This is perhaps tangential at best, but FWIW...the "heart" of the course as I teach it [has] equal protection and fundamental rights are the most notable elements (portions of separation of powers being covered in a required administrative law class)I tend to think that the delimiter between legal conservatives and legal liberals is represented at its most fundamental level in the answer to the question "what is the "heart" of the Constitution. Liberals are, in the main, obsessed with the rights-bearing sections, and regard these as the "heart" of the Constitution, while legal conservatives -- a grouping that can include political liberals -- think of the structural Constitutional as being its primary protections - that is, at the heart of the Constitution are the structural provisions. I think the latter is more convincing, and to my mind, teaching students that "equal protection and fundamental rights" are at the heart of the Constitution is to put it entirely backwards. We have such luxuries because of what really is at the heart of the Consitution: Articles I through VI.

As Justice Scalia explained sixteen years ago:It is paradoxical ... that what was an afterthought should have become the most celebrated feature of the Constitution. In the commemoration of the Bicentennial that we've been going through and will continue to go through until 1991, which is the anniversary of the Bill of Rights -- in those celebrations the specific provisions that are normally given the most extensive, if not the exclusive, attention are not bicameralism of the legislature or the separate election of the President or the Presidential veto power or life tenure for judges, or the brief two-year terms of the members of the House, or the six-year term for members of the Senate, or any of the other expertly-crafted provisions that pertain to the structure, that is to say, the constitution of government, but rather freedom of speech, freedom of religion, freedom of the press, and so forth -- provisions of the subsequently adopted Bill of Rights, so completely does that portion of the document attract the affection and devotion of the people. But if the virtue of a constitution is to be assessed primarily on the basis of that popular feature, one must admit that the Constitution of the United States fares rather poorly.Scalia went on to compare our Constitution with the Soviet Constitution of 1977, and if anyone has not yet done so, I strongly encourage anyone who thinks that the bill of rights is at the "heart" of our Constitution to read the Soviet Constitutions of 1977 and 1934, and to reflect on how well those Constitutions protected the liberty of their citizens. The 1977 language is, in fact, even more sweeping than our own: "[t]he equal rights of citizens of the USSR are guaranteed in all fields of economic, political, social, and cultural life." Const. of 1977, Art. 34. How miserly the Fourteenth Amendment's guarantee that no state shall "deny to any person within its jurisdiction the equal protection of the laws" seems next to that! Indeed, "the equal rights of peoples and their right to decide their own destiny," Const. of 1977, Art. 29, sounds like something one might expect to read in one of Justice Kennedy's opinions.

Scalia concluded - and I agree - that:[A] bill of rights only has value if the other part of the Constitution, the part that really constitutes the organs of government, establishes a structure that is likely to preserve against the lust for human power, those liberties that the Bill of Rights expresses. If the people value those liberties the proper constitutional structure that Madison and the others thought likely results in their preservation even in the absence of the Bill of Rights. And where that structure does not exist, the mere recitation of the liberties will certainly not preserve them. So while it is entirely appropriate ... to celebrate and decorate our wonderful Bill of Rights, we should realize that it represents the fruit and not the roots of our constitutional tree. The rights it expresses are the reasons that the other provisions exist, but it is those other humdrum provisions ... the structural[,] mechanistic portions of the Constitution ... that convert the Bill of Rights from a paper assurance to living guarantee. So it is a lot easier to get a crowd to form behind a banner that reads "freedom of speech or death" than behind one that says "bicameralism or fight." But in fact the latter goes much more to the heart of the matter.It is not grand words, mere penumbras of "equal protection and fundamental rights," that this nation is built upon. The mere saying of it has not made it so - the structural constitution is what has made it so. Was it the First Amendment that brought down the Alien & Sedition Laws - or was it the election of a new President and a new Congress? It was the structural Constitution.

Posted by: Simon | Sep 14, 2006 3:16:39 PM

I do it in two classes. In Evidence, which I teach by problems based on two NITA cases, I assign a treatise to supplement their reading and understanding of the rules and to aid in their working through the problems. And in Federal Courts, I assigned a treatise in addition to the casebook (which itself is written in a treatise-like manner in many respects). I think it works well when the discussion focuses less on individual key cases and more on how several cases interact with one another.

Posted by: Howard Wasserman | Sep 14, 2006 2:57:57 PM

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