Balkin and Levinson on Casebooks, Canons, and Constitutional Memory

Jack M. Balkin, Yale University Law School, and Sanford Levinson, University of Texas Law School, are publishing Casebooks, Canons, and Constitutional Memory as a Yale Law School Public Law Research Paper.

Why edit a constitutional law casebook? One might want to shape how professors teach the subject and how students learn it. But the influence of casebook editors is limited. Most students at most law schools will never practice constitutional law, and those that do probably deal with subjects not in the standard introductory course. Editing a casebook involves the construction of a canon. The canon in literature is organized around great works of excellence. By contrast, the canon in constitutional casebooks does not reflect the best opinions ever written; instead it reflects generations of political and legal struggles over the Constitution. There are three kinds of canons in constitutional law, and in constitutional law casebooks: (1) the pedagogical canon of materials that students need to know to be well-trained lawyers; (2) the cultural literacy canon of materials that citizens need to know to understand their constitutional system; and (3) the constitutional theory canon of materials that are grist for the mill of serious academic discussion. Each of these canons has a politics, and different casebooks may align themselves with different political and legal visions and movements. Casebooks are also sites of collective memory. A casebook foregrounds what teachers and students are likely to focus on and remember. What is left out of teaching materials is more likely to be forgotten. Hence constitutional law casebook authors are almost inevitably memory entrepreneurs, who seek to get people to remember certain things or remember them differently. But casebook editors are hardly all-powerful memory entrepreneurs. Authors must work with their coauthors to decide what materials to include and delete in successive editions. Casebook authors face serious constraints from publishers. Publishers demand frequent new editions to undercut sales of used casebooks; and they want casebooks to be ever shorter and simpler to understand. Perhaps most important, casebook authors feel obliged to cover contemporary issues in constitutional law. Those issues are not in their control. They are shaped by the continuous interaction and collision between the political branches and the courts, and especially the United States Supreme Court. In this way the Supreme Court exercises vast control over the content and organization of constitutional law casebooks. This creates important problems of constitutional memory. If the Supreme Court overrules a line of cases, those cases are likely to be flushed down the memory hole unless casebook editors are willing to sacrifice other valued content. The Supreme Court constantly destroys existing canons of constitutional law and reconstitutes them through its choice of cases to decide. Casebook authors must carefully consider how much of this constant churning and change is noise and how much is genuinely important and lasting for understanding the U.S. Constitution. This makes casebook authors' limited choices about what to remember especially important. At most, by placing certain materials before professors and students, casebook authors can provide opportunities to recall and absorb what is most important about our constitutional traditions. Yet what others do with those materials--and those memories--is ultimately beyond casebook authors' control.

Download the article from SSRN at the link.

Conference on Law and Popular Culture

Marquette University Law School is hosting a Conference on Law and Popular Culture November 1st to celebrate the publication of Law and Popular Culture: Text, Notes, and Questions by LEXIS Publishing. The conference is being organized by David Papke, of Marquette.

New Casebook on Law and Popular Culture

LEXIS/NEXIS has published a new casebook on Law and Popular Culture. The contributors are David Papke (editor), Marquette, Melissa Cole Essig, Esq., Peter Huang, Temple, Lenora Ledwon, St. Thomas, Diane Mazur, University of Florida, Carrie Menkel-Meadow, Georgetown, Philip Meyer, Vermont, Binny Miller, American University, and yours truly. From David's intro: "Law and Popular Culture is the first classroom text to examine the full range of American law-related popular culture. The text resembles a traditional casebook, but it contains relatively few cases or appellate opinions. Instead the text's fourteen chapters include discussions of various contemporary topics, numerous notes and questions, and well over one hundred excerpts from articles by leading law and popular culture scholars."

The book includes the following chapters: Studying Law and Popular Culture; Law Students, Lawyers and Legal Ethics, Clients, Witnesses, Judges, Juries, Tort Law, Criminal Law, Constitutional Law, Family Law, Business Law, International Law, and Military Law. Each chapter is organized around five films that illustrate that chapter's topic.

The title is ready for fall adoption.

Cross-posted to the Seamless Web.