A Casebook That Gets Used

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5 Responses

  1. Mike says:

    I feel the same way about Nahmod’s Constitutional Torts. The author presents hypotheticals and then cites to the opinion addressing the hypo. And the notes at the end of cases actually have citations to lower-court opinions. You see, casebook authors, there are these things called “lower courts,” and these “lower courts” do all sorts of funky things with Supreme Court precent. It adds a lot of context to the course to see the Supreme Court’s rules applied by other courts. (Plus, there’s no better way to prep for a Sec. 1983 final exam than to read the facts of a lower court opinion, hide the law, write a practice essay, and then see what the panel did.) It’s also a mini-lesson in judicial activism. The Fifth Circuit, e.g., still applies heightened pleading requirements in Section 1983 actions, Leatherman be damned. If ignoring clearly-established SCt. precedent isn’t activist, then I don’t know what is. (Plus, it’s always fun to throw cases like this in the face of conservatives when they cry about the Ninth Circuit’s activism. Thanks to Nahmod, I had this ammo while still in law school.)

  2. Nate Oman says:

    I know how you feel. I am constantly pulling out cases dealing with the probate exemption to federal jurisdiction during heated political arguments. Thank heavens for Hart & Wechsler!

  3. Nate Oman says:

    Oops! “Exception” not “exemption,” although I guess that probate cases are also exempt from federal jurisdiction.

  4. Mike says:

    Nate, either your serious (in which case your self-proclaimed title of law nerd is deserved), or you just made a pretty good joke. Anyhow, activism is activism, whether it’s a court ignoring Leatherman, or doing something goofy in a “sexy” case. (Of course, as you know, procedure and substance in federal courts is a blurry line.) Indeed, it’s an easier case to make that courts are activist on some matters of procedure than substance. Was Newdow (CA9) really activist? Reasonable minds can differ. But does Leatherman allow heightened pleading? No. It’s not debateable.

    A while ago there was a discussion on what activism looks like. I think everyone can agree that when a lower-court ignores controlling precent – even in a non-sexy case – it’s activism. Indeed, it’s more pernicious, since only about twenty people will care, and thus the activist panel won’t get the attention its lawlessness deserves.

  5. Hart & Wechsler’s “The Federal Courts and the Federal System”:

    Is this famous casebook a magnificent treatise? A law geek’s guilty pleasure? Or is it just an annoying series of unanswered questions? Over at Concurring Opinions…