This spring I will be adjunct teaching at Denver University, Sturm College of Law. The course is “Advanced Topics in Constitutional Law: Fourteenth and Second Amendments.” The course will be mainly 14th Amendment, plus some Second Amendment (which is happens to be a good topic with which to study 14th Amendment original intent/meaning and incorporation), plus shorter treatment of the rights in Article I, sections 9-10; Article IV Privileges & Immunities, 9th Amendment, and 13th Amendment. The course is for second and third year students, who have already had a 1st-year constitutional law class, which was mostly about constitutional structure (commerce clause, separation of powers, etc.). One textbook will be Gun Control & Gun Rights, which I co-authored for NYU Press in 1999. For the main casebook, I am undecided, but leaning strongly towards Randy Barnett’s. Please supply comments about Con Law textbooks which you have used, and their various virtues and flaws. Of course I am especially interested in the pro/con user experience for the Barnett book.
Hadur says:
Most of your students will buy Chemerinsky’s treatise/hornbook on con law and read that, perhaps even as their main text in lieu of the casebook you make them buy. This is certainly what happened in my conlaw class.
It is certainly not the traditional casebook (as it summarizes many important cases in as little as a paragraph), but I think it is unparalleled when it comes to explaining conlaw concepts in a way that is easy-to-understand but still maintains the substance of the material. It’s a phenomenal text and I’ve been unable to find anything like it for any other subject in law school.
October 25, 2009, 3:04 pmCase3L says:
Whatever casebook you decide on, please for the sake of your students do not pick the Stone Seidman Sunstein text. We used it for my 1L Con Law class (covered quite a bit of the 14th), and then again for First Amendment Law. I know the authors have a stellar reputation, but their book is nearly incomprehensible. The cases are edited so heavily and provide little context, making it very difficult to understand what the heck is going on when you are dropped into the middle of an opinion.
October 25, 2009, 3:13 pmIlya Somin says:
I usually use Brest-Levinson, which has excellent coverage of the relevant history underlying constitutional disputes, and also does a better job than most competitors of covering the important constitutional conflicts (The Louisiana Purchase, the Emancipation Proclamation, etc.) that were resolved outside the courts. Randy’s book is also excellent. I have shied away from it because I like to have a book written by authors whose perspective is very different from mine. Randy’s positions are, I fear, too similar to my own.
October 25, 2009, 3:15 pmCornellian says:
Seems like a 1999 casebook on the Second Amendment would, at the least, have to have a major, in-class supplement to bring the materials up to date.
October 25, 2009, 3:22 pmAnderson says:
I have shied away from it because I like to have a book written by authors whose perspective is very different from mine.
Good point. Students who experience the prof’s conflict with the textbook will learn about at least two different perspectives; students whose prof agrees with the textbook will learn only one.
October 25, 2009, 3:28 pmDisintelligentsia says:
Of the three Con Law books I used as a student, I liked Cohen & Varat’s Con Law casebook best. It’s published by Foundation Press.
October 25, 2009, 4:14 pmJon says:
As a historical companion, you might also consider having your students read sections of Amar’s “America’s Constitution: A Biography.”
October 25, 2009, 4:20 pmthecabbage says:
For your students’ sake, consider the price.
October 25, 2009, 4:24 pmPendulum says:
We used the Rotunda textbook. My feelings were mildly negative, but I can’t exactly remember why.
October 25, 2009, 4:40 pmOSU3L says:
Why not select your own cases and do a course packet instead? Obviously you will have to do this for the Second Amendment, but given the more narrow focus of your course your students will likely only use half of the textbook you select (read: overpaying).
Oh, your students will appreciate it.
October 25, 2009, 5:04 pmA. says:
As a student, I found the Brest-Levinson logorreic and tedious.
October 25, 2009, 5:09 pmHadur says:
I agree with OSU3L. We love professors who do course packets instead of heavy, expensive textbooks.
October 25, 2009, 5:19 pmGlenn Reynolds says:
I use Farber, Eskridge & Frickey, which I like, and which hasn’t succumbed to the extraordinary degree of bloat that some other casebooks have as their editions advance. If I were switching, I’d switch to Barnett, probably, though his organizational scheme is different enough from my class’s that it would require considerable retooling. But that’s not an issue for you!
October 25, 2009, 5:28 pmJosh Blackman says:
At Mason, Professor Bernstein used the Kmiec text. I really liked it. It has a great focus on the common law and natural law history of many individual rights. That should help your discussions of the Second, Ninth, and Fourteenth Amendment. If you do go the way of the Course Packet, please be sure to either edit the cases, or tell the students parts they can skip. One of the pluses of a casebook is that the editor trimmed out all of the unnecessary information. When professors assign cases off Westlaw that are not edited, the student is forced to waste time, and read lots of extra information with little bearing on the actual topic. Good luck!
October 25, 2009, 5:33 pmJ. Reif says:
I am currently using the latest edition of Louis Fisher’s casebook. I’ve really enjoyed it because of it’s copious notes that provide introductory context, analysis, and additional insight — in addition to the text of the cases themselves. I believe it’s a bit cheaper than some of the others as well.
October 25, 2009, 6:07 pmBama 1L says:
I understand this problem only gets worse after law school.
October 25, 2009, 6:37 pmDoug Berman says:
I am not sure if OSU3L is one of my students in my Second Amendment seminar, but I have been very pleased NOT having a casebook for the seminar. Without the bind of a casebook, I have been able to adjust my coverage to current events (e.g., the incorporation cert grant). Of course, if you want to do more history and/or historical jurisprudence, then the pros/cons of a casebook change. That said, students are always (justifiably) grumpy about having to buy lots of expensive books that are not truly required reading.
Hvae you thought about teaching much of the course using all the different amici briefs likely to be filed in the McDonald incorporation case? More generally, since the students already have con law text and are used to (and likely tired of) the usual law school case method, consider encouraging them to engage with other types of primary docs. More students will be lawyers than judges, and thus showing them more examples of what lawyers do/say (and less of what judges do/say) is always beneficial in an advanced course.
October 25, 2009, 6:43 pmtdsj says:
How about use Amar, Bill of Rights, and then supplement with your own case readings in addition?
October 25, 2009, 7:04 pmjimM47 says:
A great book. But for a class on the fourteenth amendment why not Amar’s earlier book on that specific topic? It has a much better treatment of the author’s views of the relevant material.
October 25, 2009, 7:12 pmEric Muller says:
Couldn’t you just use “Atlas Shrugged?”
October 25, 2009, 8:15 pm[DK: Never read it. There are lots of people who support Second and Fourteenth Amendment rights who are not Randians.]
Butternut says:
What definition of “Advanced Topics” does not mean deconstruction and/or watering down thereof?
October 25, 2009, 8:24 pmShelbyC says:
Does Tribe not count as a textbook, or is he on the outs?
October 25, 2009, 8:43 pmMike McDougal says:
An adjunct professor in law school assigned the lower court appellate briefs in a condemnation case that was being appealed to the state supreme court. I thought that worked well.
October 25, 2009, 9:28 pmgerbilsbite says:
I’m in Barnett’s ConLaw II this term and (obviously) using his book. I do enjoy the structure and the relatively long case excerpts, but the squib excerpts are often simplistic, and the work as a whole is certainly designed to advance his own arguments, somewhat at the expense of gaining the broader view of different eras of Supreme Court jurisprudence.
But if you’re looking for a good Originalist treatment of the 14th Amendment, and a thorough and persuasive discussion of incorporation through the “Privileges or Immunities” Clause, his book certainly fits the bill.
October 25, 2009, 9:35 pmSuperSkeptic says:
I cannot say for Barnett’s text on these particular topics, but I can say that I found Barnett’s text amenable as a general conlaw text, and the text’s placement of cases that are irreconcilable so closely together is illustrative of the SCOTUS’s method. It was also conceded by my professor (who was arguably of a different political persuasion) that professor Barnett’s book was “a damn good book.”
Moreover, he adopts the presumption of liberty, you gotta love that.
October 25, 2009, 9:38 pmJ says:
I wanted to note that a lot of the potential students have used Chemerinsky’s book, which was helpful and did not contain the sort of distracting questions in some books.
Certainly looking forward to taking this class next semester
October 25, 2009, 10:39 pmGULC Student says:
Using Barnett’s casebook (with Barnett) right now. As a student, its organization makes getting down the 14th Amendment issues very straightforward.
October 25, 2009, 11:30 pmGene Hoffman says:
I just want to echo Doug Berman. In less than 30 days, the Amici in McDonald will have written a new corpus of 14A/2A briefing that will likely be persuasive. Free, current, and the best of the best is an excellent price and quality level.
-Gene
October 26, 2009, 12:47 amPaul says:
Best of luck, no matter what text you choose to use.
October 26, 2009, 1:08 amWilliam says:
I could not possibly agree more. Everyone in my class hated it with a burning fiery passion. It made what should be the most exciting course in law incredibly boring.
October 26, 2009, 1:32 amTim says:
I think this is a great idea. The only Con Law casebook I have is crap. Without reading most or all of the cases you can’t get any real understanding, anyway.
October 26, 2009, 2:12 amyankee says:
In my experience as a law school student the textbooks did not add any value. The authors’ extremely limited discussions of the issues were rarely helpful, so the only value added was in the editing. By the time they are in a course in “advanced topics” students should be able to read an entire case. Cases do not come pre-edited in the real world.
Accordingly, I recommend a list of case citations.
October 26, 2009, 2:45 amEvilDave says:
You may just want to use Emanuel’s Con Law outlines as this is what I and most of my peers used.
October 26, 2009, 12:04 pmtmj says:
Interesting use of the indefinite article in the title.
October 26, 2009, 2:41 pmThief says:
If you can, do a custom course packet and don’t even bother with a casebook.
If you must use a casebook, avoid Chemerinsky at all costs.
October 26, 2009, 3:50 pmVermando says:
Agree about using Amar’s Bill of Rights. Especially given your interest in historical materials it could be a good choice, as he has a similar modal perspective but comes to different conclusions.
Also agree with the above about the Stone casebook. Utterly incomprehensible. I still shudder thinking of it.
October 26, 2009, 6:55 pmBrett says:
Late to the discussion, but I want to second the vote for Brest, Levinson, Balkin and Amar. It has a few pages on the 2nd Amendment and incorporation (written pre-Heller; don’t know about updates) that could serve as a useful starting point. The discussion of the ratification of the 14th Amendment is interesting. And the discussions of the cases on race are detailed and historically informed. I used it both as a text for undergrads and, on the other side of the lectern, as a law student, and in both arenas it held up well. The editors’ discussion questions aren’t quite as impossible (or rhetorical) as some of the competitors. The big downside is that you’d only be using a comparatively narrow slice of the text.
October 27, 2009, 2:58 pm