CONSTITUTIONAL LAW: CASES IN CONTEXT, 2nd Ed. by James C. Foster and Susan M. Leeson. Upper Saddle River, NJ: Prentice Hall, 1998. 2 Vols. Paper: Volume I (xxii, 953 pp.), ISBN 0-13-568775-6; Volume II (xxvi, 1187 pp.). [Amazon.com prices, Vol I $53.00, Vol II $54.60], ISBN 0-13-568759-4.

Reviewed by Joseph Reisert, Department of Government, Colby College. Email: jrreiser@colby.edu.

 
Every year it seems that there are more and more casebooks on the market, designed to fill an ever wider range of specific market niches. It may be hoped that the day will come when we can all find casebooks that satisfy our needs almost as well as if we had prepared them ourselves. Alas, that day is not yet at hand-at least for me. I had high hopes for Foster and Leeson's text, CONSTITUTIONAL LAW: CASES IN CONTEXT, since they have designed it specifically for those of us who teach constitutional law "in a liberal arts setting" (i, xix). Although CONSTITUTIONAL LAW: CASES IN CONTEXT does contain a number of useful innovations, these are in my view insufficient to make up for the book's substantial shortcomings.

Aiming at the undergraduate market, Foster and Leeson seek to distinguish their work from traditional law-school casebooks in several respects, First, it is published in two paperback volumes--VOLUME I: FEDERAL GOVERNMENTAL POWERS AND FEDERALISM and VOLUME II: CIVIL RIGHTS and CIVIL LIBERTIES--which correspond to the two courses that comprise a typical undergraduate program in constitutional law. Each volume is organized topically, but the authors also provide a second, chronological table of contents to accommodate teachers who favor the historical approach to constitutional law.

Moreover, since both volumes contain an introductory chapter on "Understanding the Supreme Court" and such essential Fourteenth Amendment cases as the SLAUGHETERHOUSE CASES, the CIVIL RIGHTS CASES, and LOCHNER v. NEW YORK, one can actually teach a comprehensive semester course out of either volume alone, without requiring students to buy both books.

Second, the authors have included in their volumes a considerable quantity of reference material in order to aid students new to constitutional law. There is a helpful glossary of legal terms and the regular appendices: the Constitution (plus the full texts of some unratified amendments as well) and a table of Supreme Court justices. At the end of each topical section the authors have printed a selection of "Suggestions for Further Reading." Third, Foster and Leeson have done a good job of case selection: KOREMATSU was the only omission I found striking; and I was pleased to find that the authors had included a number of historically significant cases dealing with native Americans and slaves, including CHEROKEE NATION V. GEORGIA, PRIGG V. PENNSYLVANIA, and DRED SCOTT V. SANDFORD. Finally, the publishers have put some effort into making Cases in Context look and feel more like an undergraduate textbook than a traditional casebook: the cases are printed in two columns; everything written by the editors is printed in one column, with ample margins; highlights of the argument are set off by bullet points.

What really sets CONSTITUTIONAL LAW: CASES IN CONTEXT apart from other casebooks, however, are Foster and Leeson's efforts to draw attention to the social, political, and legal contexts of the court cases in their volumes. The authors preface every case with a section devoted to the "Setting" of the case and another reporting the "Highlights of Supreme Court Arguments." Under the "Setting" header, the authors present roughly two pages of background for each case, first describing the general legal and historical situation of the country at the time of the case, then explaining the specific factual conflict out of which the legal dispute arose, and finally indicating the course of litigation leading to the Supreme Court. Under the heading, "Highlights of Supreme Court Arguments," the authors summarize the major arguments and legal theories advanced by each side in the briefs and at oral argument. Where appropriate, they add a list of groups filing amicus curiae briefs. This prefatory information concludes with the margin of votes by which each case (or, where appropriate, each legal issue) was decided. Each case is followed up with a few questions and usually a comment, where less important subsequent opinions are often reported in summary form.

Although I agree with the theory behind this book--that our students need to be reminded about certain elements of American history in order to read Supreme Court opinions intelligently--I was nevertheless disappointed by the casebook itself. Part of the problem was the authors' choice to organize their volumes topically, which made more difficult the introduction of relevant historical information. Rather than placing this contextualizing information in an essay at the beginning of each chapter or section, Foster and Leeson were compelled to put it in the "Setting" of each case. The result was a jarringly fragmentary, and at times repetitive, narrative of historical change and legal development. In any case, one must question the amount of space the authors devoted to presenting this material: more facts about the past are not the only things our students need to know, and any competent teacher can easily track down more historical information to pass on to students.

More distressing was Foster and Leeson's choice to include the "Highlights of Supreme Court Arguments" at the head of each case. Once again, their theory is sound: they rightly want students to appreciate the different legal and constitutional visions underlying the different litigants' positions. But once again, the practice disappoints. By presenting in pre-digested, bullet-pointed form a few arguments for each side, the authors short-circuit the learning process. It may be that weaker students would flounder without these contextual aids. But one of my main goals in teaching undergraduate courses in constitutional law is to enable my students to digest and interpret constitutional arguments for themselves, This end would be much better served by printing long excerpts of original source material--passages from the briefs themselves, perhaps, or other relevant historical materials. Where these materials are less illuminating, the authors might have profitably followed the example of the law school casebooks and drawn from law review articles and other academic works. Foster and Leeson's alternative practice--providing a selection of "Suggestions for Further Reading" at the end of each section--is simply a less effective use of limited casebook space. Most teachers can easily generate such bibliographies for interested students, and it would be much better for casebook authors to print one lengthy excerpt from one article for everyone to read than to include references to a dozen articles that the vast majority of students will never read anyway.

To give one concrete example, consider the treatment of ROE v. WADE in CONSTITUTIONAL LAW: CASES IN CONTEXT. The authors devote as much space to their prefatory information--a brief history of abortion and abortion legislation in America and ROE's path to the Supreme Court, a lengthy summary of the arguments for the two sides, and a long list of amici curiae--as to the case itself (5 pages each). Following the case, the authors ask only three questions, two of which in effect ask only what the case held (II, 826). No attention is given to the urgent moral of abortion and its regulation by the state; no attention is given to the question whether courts or legislatures are better suited to accommodate the competing claims of fetal life and women's freedom; no attention is given to the interesting question of alternative constitutional arguments supporting the right to abortion. In short, the readers are never challenged and indeed, from this text one would have no idea why the argument of ROE has been so widely attacked not only by opponents of abortion, but also by its supporters. Once again, the "Suggestions for Further Reading" is excellent and ideologically balanced, but one might well ask whether this list is worth the five pages devoted to it.

Of course casebook reviews are unusually subjective: others may welcome the features I disliked. Others may also welcome this book's muted authorial voice. The authors almost disappear behind the seemingly objective "Setting" and "Highlights of Supreme Court Arguments" sections that preface the cases and the questions and comments that follow; they recede all the more into the background because their narration strives so successfully to be generous and fair to both sides in each controversy, But what I, for one, really wanted in a casebook subtitled "Cases in Context" was a casebook with many fewer cases than conventional texts but which examined them in much greater depth than is normally possible. That subtitle led me to dream about a casebook that could do for a dozen landmark cases what Brest and Levinson do in PROCESSES OF CONSTITUTIONAL DECISIONMAKING for MCCULLOCH v. MARYLAND. Of course that would be a different book entirely. CONSTITUTIONAL LAW: CASES IN CONTEXT aims to be a more conventional casebook for undergraduate use. It would not be a bad choice for undergraduates--particularly, I suspect, for weaker students. But I do not think it would be the best choice, either.
 

Brest, Paul and Sanford Levinson, PROCESSES OF CONSTITUTIONAL DECISIONMAKING, 3rd. edition. (Boston: Little, Brown, and Co., 1992).

CHEROKEE NATION V. GEORGIA 30 U.S. (5 Pet.) 1 (1831)

CIVIL RIGHTS CASES 109 U.S. 3 (1883)

DRED SCOTT V. SANDFORD 60 U.S. (19 How.) 393 (1857)

KOREMATSU V. UNITED STATES 323 U.S. 214 (1944)

LOCHNER V. NEW YORK 198 U.S. 45 (1905)

MCCULLOCH V. MARYLAND 17 U.S. (4 Wheat.) 316 (1819)

PRIGG V. PENNSYLVANIA 41 U.S. (16 Pet.) 536 (1842)

ROE V. WADE 410 U.S. 113 (1973)

SLAUGHTERHOUSE CASES 83 U.S. (16 Wall.) 36 (1873)