Casebooks and Constitutional Competency
| Publication year | 1998 |
| Citation | Vol. 21 No. 03 |
I. Introduction
The first law school casebook in constitutional law was published in 1895 by Harvard law professor James Bradley Thayer.(fn1) Thayer observed that every teacher, "has his own gifts or lack of gifts,-methods as incommunicable as his temperament, his looks, or his manners."(fn2) He distinguished, however, between how teachers might manage the classroom and how students must prepare themselves:
The case method of law study, however, has changed a great deal since Langdell's time, not only because the quantity of cases (and other important materials) has exponentially increased, but also because the competency expected of lawyers today requires even more critical inclinations, less acquiescence in accustomed forms, perhaps a more skeptical disposition, and greater skills not only of understanding, but of refinement, adjustment, growth, and creative use.
In addition, constitutional law itself has dramatically grown, both in scope and in complexity. Reflecting (and in turn, no doubt, contributing to) the more activist orientation familiar since the Warren Court, casebook editors since the late 1950s have included suggestions and questions calculated to induce students to challenge, to connect, to critique, and to explore more intensively and more extensively than had been commonplace before. Today's casebooks are thus far better adapted for fostering constitutional competency among lawyers than were their earlier counterparts.(fn4)
Yet I find them all deficient regarding one branch of constitutional law which already is resurgent and will surely develop further as the new millennium proceeds. The casebooks do not provide students the resources and insights required for the critical understanding, competent use, and beneficent development of basic elements of federalism law, particularly the principle of enumerated powers. Reflecting the dated sophistication that "intrinsic" constitutional limits on federal legislative power are passe, the casebooks give little significant instruction in the difficulties and possibilities of intelligently accomplishing substantial decentralization of governmental discretion and authority so as to enhance self-governance and liberty-the most important reasons for having a constitution at all.
Part 1 of this Article traces the evolution of the constitutional law casebook from Thayer's massive compilation of raw data in the Langdell tradition, to the modern style of extensively edited cases with comments and questions to help students identify, anticipate, and assess potential avenues of analysis and development.
Part 2 examines some basic concepts of federalism law still afforded too little attention by casebook editors. The classic analysis of enumerated powers (including Congress' power under the necessary and proper clause) was eclipsed a century ago by the rise of the misconceptions now commonly generalized as "dual federalism." Justice Stone led a revival of the classic approach beginning in 1937; but just as its operation under modern conditions was beginning to be made clear, Justice Black set a contrary course which led to federalism issues being treated for decades less as issues of law than as political questions. Part 3 details those developments, and Part 4 then discusses the challenge and opportunity facing casebooks now that federalism has attracted renewed judicial interest and constitutional opinion teeters between refining the viable, classic constitutional analysis of federal legislative power, and falling back on the old, discredited dual federalism idea.
II. Part l: Evolution of the Constitutional Law Casebook
Faculty teaching law school courses in constitutional law have a larger selection of casebooks to choose from today than ever before. The twelve current choices constitute half the titles ever published for law school use in this field. Until 1986 there were still only seven; until 1975 the most there ever had been at one time was five.
Of the twelve currently offered, three appeared in new editions in 1997(fn5) or 1998(fn6). One appeared for the first time in 1996,(fn7) when new editions of five others also appeared.(fn8) The other debuted a new edition in 1993 or 1992.(fn9)
Three of the twelve current titles can be traced, through several editions and a succession of author-editors, to 1964,(fn10) 1959,(fn11) and 1937(fn12) respectively. However, only two of the other nine existed before 1981, and none of them existed before 1975. Five are new within the past twelve years.
In contrast, just one new constitutional law casebook for law schools was introduced during the entire fifteen-year period of 1960 through 1974, even though at that time the profession (and certainly the law professoriat) was enthralled and preoccupied with constitutional events of the Warren court and the Nixon era. One might be tempted to attribute the dearth of new entries during that period, compared to the last fifteen years, to the quality of the competition already in place. However, the 1996 and 1997 editions of the three survivors from that period maintain their high quality, and yet now contend with nine others. The plethora thus does not seem attributable to any decline in the stalwarts. Perhaps it is just that law school market growth has induced more publishing houses to seek market share with books of their own;(fn13) and perhaps a shrinking market might eventually squeeze out one or two. In any event, the variety available now to satisfy pedagogical tastes is unprecedented.
Constitutional law has been a staple of the law school curriculum for only about sixty or seventy years.(fn14) Langdell's model at Harvard gave the subject no place. Even after 1878, when the law degree course was extended to three years, the subject was not included.(fn15) Near the end of the century, however, James Bradley Thayer developed it as a third-year elective.(fn16) Constitutional law remained an elective at Harvard even after the curriculum reforms undertaken during the administration of Dean Landis in the late 1930s.(fn17)
Thayer hoped the casebook he published in 1895 would "help to promote a deeper, more systematic, and exacter study of this most interesting and important subject, too much neglected by the profession."(fn18) It was an enormous, two-volume compilation totaling 2,420 pages(fn19) and containing hundreds of principal cases, both state and federal. Because he reproduced the opinions nearly full-length, the volumes had to be printed in eye-straining small type. Annotations containing excerpts from many additional cases, some explanatory notes, and a few extensive selections from scholarly articles (most notably Thayer's own) were set in even smaller type. Part One of the collection, which had first appeared the previous year shortly after Thayer's classic article, "The Origin and Scope of the American Doctrine of Constitutional Law,"(fn20) included a good deal of historical and other secondary material about constitutions in general and about the judiciary's function and role.
The daunting bulk of Thayer's book exemplifies the extraordinary demands the undiluted Langdell case method placed upon students. Thayer wrote that in preparing the collection "I have had chiefly in mind the wants of my own classes at the Harvard Law School" as well as "students elsewhere who follow similar methods of study,"(fn21) and he explained that he wanted the student "to see the topic grow and develop under his eye":
. . . [T]here is no method of preparatory study so good as . . . that of studying cases, carefully chosen and arranged so as to present the development of principles.(fn22)
Thayer also wished to convey "the existence and the nature of the constitutional lawmaking process He said:In this wide and novel field of labor our judges have been pioneers. There have been men among them, like Marshall, Shaw, and Ruffin, who were sensible of the true nature of their work and of the large method of treatment which it required, who perceived that our constitutions had made them, in a limited and secondary way, but yet a real one, coadjutors with the other departments in the business of government; but many have fallen short of the requirements of so great a function. Even under the most favorable circumstances, in dealing with such a subject as this, results must often be tentative and temporary...
To continue reading
Request your trial