By Sarah Ricks, a clinical professor of law at Rutgers School of Law and co-director of the Pro Bono Research Project.
The New York Times recently declared, “American legal education is in crisis.” One cause, the editorial argued, is legal education’s traditional preference for theory over practice: “In 2007, a report by the Carnegie Foundation for the Advancement of Teaching explained that law schools have contributed heavily to this crisis by giving ‘only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.’” Widely publicized calls to reform legal education have come from Best Practices; its blog; and other blogs, e.g., "Room for Debate – The Case Against Law School."
One challenge for law teachers who want to integrate practical skills into doctrinal teaching is finding appropriate teaching materials.
Evelyn Tenenbaum and I collaborated on a casebook responding to the call for a more practical approach to teaching law. Current Issues in Constitutional Litigation: A Context and Practice Casebook focuses on practical materials to teach the constitutional and statutory doctrines necessary to litigate constitutional claims arising under the 4th, 8th, and 14th Amendments, under the 1st Amendment in the prison context, and the 11th Amendment defense.
Every chapter places students in roles as practitioners handling simulated law practice problems. The casebook is structured around 15 law practice simulations that allow students to creatively explore how attorneys shape and apply doctrine. Simulations include interoffice debates among attorneys for a single client deciding whether to appeal or seek certiorari; a jury charge conference; a meeting with a client to decide the next steps in the litigation; a settlement conference before a federal appellate mediator; testimony before a legislative body; and appellate oral arguments.
Each doctrine is introduced with a narrative overview that gives the student context. The book includes questions to guide student reading, visual depictions of doctrine, and short exercises to facilitate reflection on their future professional roles.
Unlike most constitutional law casebooks, the book includes not only Supreme Court decisions but differing circuit court applications of doctrine.There is tension between the Supreme Court’s supervisory role and the size of its docket relative to the circuit dockets. Since the Supreme Court issues opinions in fewer than 150 cases per term but the federal circuits annually decide about 30,000 appeals on the merits, realistically, for most litigants decisions of the federal circuit courts are final.
The book also includes voices other than those of appellate judges. To expose students to realistic practice documents and help them grasp the roles of attorneys and administrators in shaping legal doctrine, the book includes appellate oral arguments, appellate briefs, government policies, expert reports, jury instructions, and interviews with civil rights lawyers. To help students grasp the difficult choices faced by those on the front lines of constitutional decision-making, the book includes factual background about the work of prison guards, police, and social workers. To remind students of the human faces behind the doctrines, the book includes photographs and statements by people affected by these doctrines, without the intermediary of a lawyer. To further bring real life into the classroom, a companion website includes teaching materials such as YouTube videos; videos of guest speakers who investigate police misconduct or who represent defendants in Section 1983 constitutional claims; and links to relevant websites (such as testimony by prison rape survivors).
For example, to provide factual and legal context for Eighth Amendment doctrines, the book includes a Supreme Court oral argument, testimony by a correctional officer who assaulted a prisoner, an investigative report by a public interest organization, and an interview with the ACLU lawyer who argued two of the Supreme Court cases. Students watch a documentary about prison life and listen to a statement by a survivor of prison rape. Teaching materials allow students to apply the law in short, in-class practice exercises concerning medical treatment of inmates, prison gang violence, and housing of transgendered inmates.
Rather than providing feedback in a single end-of-semester exam, the teaching materials make it feasible to provide frequent and prompt feedback, using methods such as immediate in-class review of student performance on in-class multiple choice quizzes or short answer essays. In class, students get peer feedback from, for example, working in pairs to draft document requests to elicit evidence of municipal liability and listening to other students share their responses (think-pair-write-share).
The book is part of the Context and Practice Series designed and edited by Michael Hunter Schwartz of Washburn University School of Law. All books and Teachers’ Manuals in the series include active learning exercises, sample exams, and other materials to make it easy to use multiple methods of instruction.
The practical approach of Current Issues in Constitutional Litigation is rooted in my 11 years of law practice – including seven litigating civil rights appeals for the City of Philadelphia – and in Evelyn’s many more years of litigating civil rights cases for the State of New York. I use the casebook to teach both a course on constitutional litigation and a hybrid clinical/writing course where students do real § 1983 legal research assignments for an outside client.
Concluding his review of the book, Professor Aderson Bellegarde François wrote:
Professor Ricks has managed to accomplish in this textbook, with prose at once clearheaded and lyrical, in a format at once straightforward and complex, and with materials at once conventional and unexpected, the difficult and seemingly contradictory task of pointing the way to the future of the casebook while at the same time proving herself a true intellectual heir to Langdell's original vision of the case method.