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Thursday, May 10, 2007

Choosing a Casebook: Constitutional Law

Please use the comments section to share thoughts on choosing a casebook in Constitutional Law.  (See here and here for a discussion of the Course Preparation Project.)

Posted by Matt Bodie on May 10, 2007 at 04:29 PM in Teaching Law | Permalink


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I taught the second semester of a year long Con Law class for 2Ls this year, using Chemerinsky. (I covered equal protection, implied fundamental rights including voting, and First Amendment.)

I often really liked the book for one of the reasons Scott mentions: Chemerinsky's notes usually consist of 2-3 sentence summaries of cases with different facts, reaching different results. When one is still trying to remind students that the facts matter and that one can't blindly apply abstract principles, this is great. I think it also undercuts any tendency for students to mistake Chemerinsky's organization for clarity in the doctrine. They seem to get that he has valiantly tried to bring some order to the cases, but that this is not the only way to do it, and that it's not always possible to do so.

On the other hand, Con Law is not Torts. I don't want to overemphasize factual triangulation to the exclusion of either a legal realist view that emphasizes politics, or a methodological view that emphasizes the individual justices' jurisprudences, coherent or not. I want my students to be able to make a variety of arguments when faced with the "open" questions that are typically tested on a law school exam--not just triangulation. But the book implies that anything else is a "side issue," so much so that I felt I couldn't fairly test other techniques very heavily. So I wish there were *some* rhetorical questions or cites to favorite law review articles in there, if only to avoid the implication that such material is completely worthless.

I had assumed, teaching the course for the first time, that I could just supplement the book by asking my own thought provoking questions during class, as well as summarizing what I felt were important scholarly approaches, in order to elicit critique. But my students were very averse to answering such questions. Of course my own teaching style as well as typical 2L apathy may have been to blame, but I suspect the book's almost total lack of academic and political discussion was a significant contributor.

I wonder if others who have used Chemerinsky think it stifles practice with different rhetorical technqiues, or am I being unfair to the book?

Posted by: Gowri Ramachandran | May 16, 2007 3:16:09 PM

Again, I'm just a student with no basis for comparison, but I really enjoyed Brest, Levinson. The emphasis on the centrality of slavery to the structural design and compromises of the 18th and 19th centuries made a lot of sense and helped the material to come alive; the sections on both racial and sex/gender equality were really thoughtful, surprisingly non-squirm-inducing for the cultural studies majors among us. FWIW, I took a year-long course separated into judicial review/separation of powers/federalism and individual rights (no First Am. or crimpro).

Posted by: 1elle | May 16, 2007 1:57:38 AM

Sullivan and Gunther wasn't terrific but much much better than Shanor. Shanor has the worst casebook I've ever seen. He gives so few cases that it's impossible to learn any particular area of law. His notes ask rhetorical questions like "Why did Justice Roberts recuse himself?" What irrelevance. And the cases are so pared down that sometimes its virtually impossible to discern a holding. The only way anybody survived that course was with a commercial outline.

Posted by: 1L | May 13, 2007 5:44:48 PM

My Con Law I class this past semester was taught out of Stone/Seidman. I don't think I can adequately describe how much I despise this book. The book is unorganized, the concepts are mixed together and muddled, and someone gave their 5 year old a pair of scissors to edit the cases.

Luckily, our Professor is an amazing teacher who can fill in the gaping holes left by the editors in the cases, as well as supplement with his own. Over half of our cases were not from the book. He apologized repeatedly for the textbook, but indicated that it was one of the best out there.

Next to no one in our class bothered reading the book after the first week of class. Just trying to struggle through Marbury v. Madison (a case I've studied in undergrad) was a headache.

Posted by: Law Student | May 11, 2007 6:03:39 PM

We touched on this subject before. I weighed in then. See http://prawfsblawg.blogs.com/prawfsblawg/2006/12/choosing_a_cons.html

Posted by: Ethan Leib | May 11, 2007 5:17:48 PM

Chemerinsky's Con Law casebook is fantastic:

(1) He edits cases down more than most, and after the main cases, he offers 1-2 paragraph excerpts of 3-4 more cases, rather than what most casebooks do (offering unhelpful numbered "notes" that consist of rhetorical questions and cites to the author's favorite law review articles). This lets me cover more cases each class, which lets me draw contrasts, e.g., "in these 3 cases the court did find standing, but in these 3 the court didn't." Beware of casebooks in which each case is 15-20 pages; you won't be able to do compare/contrast like that, because you'll be able to assign only about 2 cases a class.

(2) He begins chapters with 1-3 pages of prose explaining the topic. That shouldn't sound revolutionary, but far too few casebooks do that.

A lot of Con Law casebooks are entertaining, or useful research resources, for profs -- but not good teaching tools. Chemerinsky isn't much of a research resource, but it's by far the best teaching tool of the many I've reviewed.

Posted by: Scott Moss | May 11, 2007 5:06:28 PM

I've tried Gunther & Sullivan (students despised it), and Rotunda (received much better), but for my money, Calvin Massey's American Constitutional Law: Powers and Liberties is the best con law casebook out there. (I was taught out of Choper and out of Stone/Siedman, so I have some basis for comparison.) I suppose that I feel that way in large part because it is structured like I teach my two semester course, and has plenty of material for a one- or two-semester course. The cases are edited intelligently, the questions are thought-provoking without being impenetrable, and there is a minimum of extraneous material that students won't read. It does a good job introducting sections and summarizing the material to follow and the questions reinforce the lessons of the cases, or at least draw students attention to important points of the cases just covered. I think it's superb!

Posted by: Brannon Denning | May 11, 2007 2:30:36 PM

For my one-semester class on all of constitutional law (in which I've taught varying amounts of the First Amendment as well as structure and non-First-Amendment rights), I've used the Farber, Eskridge, & Frickey text. I like the book very much because it stresses interpretive theory and history in the context of teaching the traditional canon. The book does a great job of introducing students to ways of reading the constitution without doing so in an abstract way that could cause the students to lose focus. Thus, judicial review is taught after Plessy and Brown, and allows me to examine issues of stare decisis, remedies, history, moralism, etc., in a context the students can easily understand.
I would prefer the book to be somewhat longer, containing more cases and longer excerpts of those cases, but it is very nice for a one-semester course.

Posted by: Mike Dimino | May 11, 2007 10:17:57 AM

The Gunther/Sullivan book is unreadable; almost no paragraph breaks, awkward organization.

Posted by: Jay | May 10, 2007 9:20:44 PM

The Brest, Balkin book is great, IMHO, for a year-long course taught by the same professor. It's hard to do in one semester because of it's chronological approach, although it's not impossible; will just require fairly heavy reading assignments or fairly heavy cuts...

For a Con Law "I" course this spring (separation of powers and federalism), I used Charles Shanor's "American Constitutional Law: Structure and Reconstruction," in its new third edition from Thomson/West. Shanor takes a somewhat unorthodox approach to some of the order, and does a nice job, in my view, of keeping the # of cases to a minimum while not overediting those cases that are included. That being said, there are some subjects that receive awfully skimpy treatment in the third edition (e.g., standing, political question doctrine), and I can't imagine the book would be that useful for a Con Law "II" course, given its focus on structural issues.

Next year at American, I'm teaching a one-semester whole-Con Law class (except the First Amendment), and am torn between Brest/Balkin, Stone/Seidman, and Gunther/Sullivan, which will have a brand new 16th edition in August. Anyone have specific thoughts as between these three mainstays?

Posted by: Steve Vladeck | May 10, 2007 6:23:03 PM

I thought the book by Brest, Levinson, Balkin, Amar and Siegel, Processes of Constitutional Decisionmaking (5th edition 2006) was great.

Posted by: Alex | May 10, 2007 5:42:10 PM

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