Chasing the cannon: a tail's view of, and requests to, the dog.

• Author: Nowak, John E.

My admiration for the late Fred Rodell gives me an excuse, if not a reason, for keeping the number of footnotes in this document as small as possible.(1) Otherwise I would, of course, have footnote references to the other articles in this Symposium, particularly Jerry Barron's article, "Capturing the Canon." Those articles have provided us with both an excellent overview of developments in the casebooks and rationales for the decisions of casebook authors.

There are as many "canons" of constitutional law as there are constitutional courses. Each student studies a canon that consists of the cases and materials used in her course. The student believes that the materials presented by the professor, discussed in class, and "tested" on the examination constitute the principles that every law student and lawyer should know. It's my guess that the vast majority of professors who teach constitutional law do not supplement the casebook materials with additional cases, or anything else. Most professors create a canon for their students by choosing a casebook and selecting the sections of the casebook that will be covered in the course.

The authors of casebooks are the "big dogs" who create canons of constitutional law. The writers of reference works for students are the tails who follow the dogs as they wander through years and editions. Nevertheless, taking a look at where the tail has gone tells you something about what the dog has been doing. As the coauthor of a "one volume treatise," I've been in the business of tracking developments in constitutional law casebooks and courses for more than twenty years.(2) [Here's an aside: Before I go further, I should tell you how hard it is for me--at least with a straight face--to call a one volume reference work, which is aimed primarily at a student audience, a "treatise." Nevertheless, I'll go along with today's terminology].

In 1978, the late J. Nelson Young, Ron Rotunda, and I published the first edition of our one volume treatise. The first edition of the book was only 974 pages in length and it had large typeface and wide margins. Yet that modest text covered almost all of the subjects that received significant attention in constitutional law courses. There were not a lot of schools offering separate first amendment or fourteenth amendment courses a quarter century ago. In the "old days" most schools had only one constitutional law course.

Many, though not all, of the changes in our book are direct reflections of changes in constitutional law courses in the last quarter of the twentieth century. The second edition of our book, published in 1983, had grown dramatically. We had received a good response to the first edition from lawyers and judges, as well as from the student audience for which the first edition was aimed. In the second edition we added topics and lengthened our examination of some topics, in the foolish belief that we could Write a single reference work that would serve all elements of the profession: students and professors, judges and lawyers.

Jerry Barron played a part in changing the direction of our one volume treatise. In 1983 he was nice enough to include me in the planning committee for the constitutional law conference to which he refers to in his article. Some of the views presented in that conference, as well as discussions with a number of professors around the country, led Ron Rotunda and me to decide that a single book could not serve the needs of both academe and the "real world." In 1986, we published the third edition of our one volume treatise; in that year we also published the first edition of our multi-volume Treatise on Constitutional Law: Substance and Procedure.(3)

Our one volume treatise is very different from our multivolume Treatise. The Treatise is not designed to create, or reflect, a canon of constitutional law, though it should be of more help to constitutional law professors than our one volume work. The third edition of the multi-volume Treatise, which was published last summer, fills five volumes and more than 3800 pages. The Treatise has yearly supplements, and more topics, more cases, and citations to a lot more law review articles than does our single volume work. Surprised that we include citations to most law review articles in the Treatise, but not our single volume text? You shouldn't be. Students, who are the primary users of any single volume treatise, will only consider a law review article important if it was discussed in their course. For that reason, almost all references to law review articles will disappear from the sixth edition of our one volume treatise.

The growing divergence between the contents of our one volume treatise [A/K/A hornbook] and our Treatise reflects the different needs of judges and lawyers, on the one hand, and students, on the other. Judge Edwards, and others, have commented upon the growing divergence between what is taught in law school and the skills required of practicing lawyers.(4) Professors Balkin and Levinson are unquestionably correct when they note that we need not be as concerned about the training of lawyers in our constitutional law courses as professors should be in some other law school courses.(5) Nevertheless, lawyers do run into constitutional questions, and judges must deal with those questions. Those lawyers and judges require information on a range of issues that no professor would include in the canon; they require citations to many, if not all, of the Supreme Court's decisions on each point. In serving the needs of judges and lawyers in our Treatise, Ron and I have been able to avoid making decisions about which topics or cases should be included in a "canon." For example, Downes v. Bidwell,(6) discussed in Levinson's article, touches on a variety of subjects that might come up in court cases; we include four references to that case in our multi-volume Treatise. That case only gets one footnote reference in our single volume treatise.

What do students want from one volume treatises? What differentiates one volume treatises from other "study aids"? The student's primary interest, of course, is in getting help in understanding the materials in a way that will allow him or her to get a higher grade for the course. The difference between any of the one volume treatises and other types of study aids, such as commercial outlines, is two-fold. First, a one volume treatise, unlike some "study aids," will give the student information concerning how principles were developed (thus touching on some of the concerns raised by Maxwell Stearns in his article). Second, a one volume treatise needs to be as comprehensive as possible, because it is designed to be used by students in many types of courses. I cannot speak for the writers of other one volume treatises, but Ron and I only drop a topic from our one volume work when we are fairly certain that it is not being taught in constitutional law courses across the country. We cut back dramatically in our coverage of a topic only if we have determined that the topic is no longer getting significant attention in those courses.

Over the years, a number of topics have disappeared from basic constitutional law courses. Based on the content of constitutional law courses in the late 1980s and early 1990s, our fifth edition (published in 1995) almost completely eliminated coverage of some topics, including: Article I powers of Congress other than the commerce and fiscal powers; immigration and naturalization; federal government immunity from state regulation; and state taxation. We also significantly reduced our coverage (essentially by eliminating reference to cases that no longer appear in constitutional law casebooks) of topics such as: congressional enforcement of civil rights; foreign affairs; presidential immunities and powers; and procedural due process.

Ron and I have not made a final decision regarding the topics that will receive significantly reduced coverage in the sixth edition of our one volume treatise, which will be published in the fall of 2000. Among the top candidates for reduced coverage are: most pre-1960s cases concerning alienage, gender, and illegitimacy classifications; procedural due process; the one person-one vote cases; and most of the ballot access cases. Indeed, we may drop some of the "specialized" religious clause topics (such as judicial inquiry into religious "frauds" and judicial involvement in intra-sect disputes), because, despite the growing number of First Amendment courses, those topics do not appear in many casebooks.

Why has our one volume treatise grown in size, while Ron and I have been reducing coverage of some topics? Topics that have received reduced coverage in our one volume treatise are the topics that have given way, in most casebooks and courses, to more "in-depth" coverage of fundamental rights...