A Constitutional Law Casebook for the 21st Century: A Critical Essay on Cohen and Varat

A Constitutional Law Casebook for the 21st Century: A Critical Essay on Cohen and Varat By William Cohent and Jonathan D. Varat.* Westbury, New York: Foundation Press, 1997. Pp. v, 1718. CONSTITUTIONAL LAW, CASES AND MATERIALS. Reviewed by Bryan K. Fair" INTRODUCTION The purpose of this essay is to review the latest edition of Cohen and Varat,1 its strengths and weaknesses. Ironically, Professor Cohen reviewed the original edition 2 in 1960, concluding it was "easily the best and most teachable collection of cases on constitutional problems in print .... It deserves to be widely used."3 After teaching from it for seven years, I know it well enough to state unequivocally that it is a first-rate teaching tool-unquestionably one of the leading, traditional casebooks--enabling thousands of law students throughout the country to gain some insight on a vast array of constitutional questions. Below, rather than simply describe the casebook's broad contents, I also want to illustrate how I use it in a class of 65 to 100 students, meeting for 50 minutes per class, 60 times during a semester, hoping perhaps to assist another new teacher embarking on understanding and presenting the mysteries of constitutional decision-making, many of which still evade me. t Professor of Law, Stanford Law School. f Professor of Law, UCLA Law School. * Professor of Law, The University of Alabama School of Law. I wish to thank Dean Kenneth C. Randall and the Edward Brett Randolph Fund for research grant support, and the Alabama Law Foundation for its continuing support of research by Alabama faculty. 1. WILLIAM COHEN & JONATHAN D. VARAT, CONSTITUTIONAL LAW: CASES AND MATERIALS (10th ed. 1997). 2. The first edition appeared in 1959. EDWARD L. BARRETT, JR. ET AL., CONSTITUTIONAL LAW, CASES AND MATERIALS (1959). Barrett and Bruton prepared the fourth edition. After Bruton's retirement from teaching, Barrett edited the fifth edition alone. Cohen became a coeditor of the substantially revised sixth edition, and Varat joined as coeditor on the eighth edition. 3. William Cohen & Arvo Van Alstyne, Book Review, 48 CAL. L. REV. 173 (1960). Seattle University Law Review [Vol. 21:859 Preliminarily, Cohen and Varat is long, and I do not attempt to race through its 1900 pages. Nor do I follow the editors' organizational framework or my same syllabus each year. Instead, I start over, creating a new syllabus which more accurately reflects my interest in subject matter coverage and what I can reasonably expect students to accomplish for the course. My scholarship also informs my course; as it evolves, so does my presentation and critique. True to the editors' plan, Cohen and Varat is quite flexible, allowing the teacher to change organizational presentation. I take full advantage of this flexibility. In the spring of 1998, for example, I began the course with religion materials in Chapter 17 because of the current relevance of those issues in Alabama and because the initial religion cases introduce a number of broad themes that we will cover in more detail later. Other times, I have started with incorporation issues in Chapter 8 or judicial review in Chapter 1. Moreover, I have supplemented the casebook with film segments of Eyes on the Prize, Women in American Life, and other educational documentaries that illustrate significant constitutional contradictions that have plagued this nation. I have been aided here by colleagues on the law faculty and the Women Studies Department to incorporate more fully, for example, the voices and experiences of diverse women, hopefully enriching the learning experience and environment for all my students. For especially ambiguous materials I recommend that my students consult John Nowak and Ron Rotunda's excellent treatise.4 I discourage them from relying solely on commercial outlines, explaining that the primary value of an outline is in its production. I also permit them to use their own outlines during the final exam. My students have also provided constructive feedback about their needs, helping me improve the course. More than any other request, they want practice exercises, as many as I will provide. To aid my students, I brief the first case, illustrating how I read, analyzed, and distilled the case into the brief. I then assign each of them a case to brief in writing and to present to the rest of the class. As time permits, I have the students join me at a podium in front of the class. Beyond briefing, we use some class time to apply the cases to practice questions. As we end each unit, I distribute sample questions testing material covered to that point. My goal is to encourage my students to keep up, applying the cases as we proceed through the material. I take the first question and illustrate how I would read the 4. JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW (5th ed. 1995). Cohen and Varat 1998] question and how I would apply the cases. Thereafter, I ask my students to apply the cases to resolve the questions. My course today is quite different from seven years ago, even though I have not adopted a different book. Indeed, only now do I know how well Cohen and Varat teaches. The best way to describe my Constitutional Law course, then, is as a work in progress that undoubtedly will benefit from this structural and substantive examination of Cohen and Varat. Part One of this review explains my journey from law student to Constitutional Law teacher, and my selection of Cohen and Varat. Part Two examines Cohen and Varat as a teaching tool. In a word, it has proven excellent on most counts for that purpose and I recommend it highly. Part Three assesses the casebook's principal weaknesses, which I have found limited; and it offers suggestions for improvement, consistent with the goals set forth by the casebook's editors. I. REALIZING A DREAM As a UCLA law student fifteen years ago, one of my favorite, yet most difficult courses was Professor Ken Karst's Survey of American Constitutional Law. I went to law school expecting to learn about elusive concepts like fairness and equality, especially from reading Supreme Court decisions. Most of all, I wanted to examine how African Americans had been excluded from basic privileges of American citizenship despite written" constitutional safeguards. Much to my disappointment, the course was not designed for those specific purposes, but rather as a broad introduction to judicial interpretation and constitutional analysis. This alternate emphasis made the course much less interesting and more difficult to prepare for. An additional obstacle was deciphering Gerald Gunther's gigantic casebook.' Its rich historical detail and extensive intellectual probing on seemingly esoteric points left me scratching my head or dozing off midpage. I was overwhelmed by its breadth (nearly 2000 pages with the supplement) and had neither the background experience nor the time to contextualize many of its exhaustive notes. Perh (...truncated)