Circuit Splits

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 2 of 2]

Yesterday I reviewed Professor Sarah Ricks and Professor Evelyn Tenenbaum's new casebook entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). In case you missed it yesterday, you can find my review of the professors' new casebook here.

Today I wanted to encourage readers to check out the following two sample chapters, which you can download for free on SSRN:

• Chapter Five - 42 U.S.C. § 1983 Action Under Color of Law. To give you a better idea of the layout of each chapter, here is a screenshot of chapter five's table of contents:

• Chapter Fourteen - Protecting Freedom of Religion in Prison: The Free Exercise Clause and RLUIPA. And here is a screenshot of what you can expect to find in this chapter:

Is the Langdellian case method finally showing signs of aging? Should law professors abandon the casebook/Socratic method of teaching law in favor of the "context-and-practice method"? I invite readers to share their thoughts by leaving a comment below!

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 1 of 2]

Each year new crops of wide-eyed 1Ls listen to law professors opine that they must learn how to "think like a lawyer.” Yet, as the New York Time’s David Segal pointed out in a recent article entitled “What They Don’t Teach Law Students: Lawyering,” the law-school curriculum has, for more than a century now, “emphasized the theoretical over the useful.” But to quote the great Bob Dylan, “The times they are a-changin.’”

According to an article in the Wall Street Journal (here), many of the nation’s top law schools “are throwing out decades of tradition by replacing textbook courses” with courses like Indiana Law’s “course of so-called emotional intelligence,” Harvard Law’s new “problem-solving class for first-year students,” and Stanford’s “full-time clinical course” in which students must complete “several 40-hour plus weeks of actual case work” to graduate.

Professor Sarah Ricks of the Rutgers School of Law was nice enough to send me a courtesy copy of her new casebook, which she coauthored with Professor Evelyn Tenenbaum of Albany Law School, entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). As the title suggests, this casebook is designed to help students think about the law from the perspective of a practicing lawyer. Like many of the great casebooks on the subject that have come before it, Issues in Constitutional Litigation covers the landmark Supreme Court cases with intelligent commentary and thoughtful organization. Unlike many of the great casebooks on the subject that have come before it, the book also focuses on federal circuit decisions, with a particular emphasis on both established and emerging circuit splits. Each chapter also strives to capture the human element of practicing law--something that legal opinions frequently fail to convey. Students will read letters from inmates, review historical documents like the 1867 cover of Harper's Weekly depicting black men casting their "first vote," receive practice pointers from seasoned veterans, and receive exposure to a host of other "real-world" issues that help bring the cases to life.

To be clear, Issues in Constitutional Litigations does not trash the traditional casebook model. The important cases are all still there. Instead, the book improves upon the old casebook model in two important ways. First, it places each case in a broader context that helps explain the doctrinal developments that might otherwise feel counterintuitive or arbitrary to students who limit their study of the subject to the four corners of the opinions.

Second, the book emphasizes the advocate's role in shaping the development of constitutional law. This is a critical component of thinking like a lawyer; and one that the casebook/Socratic method tends to neglect. The biggest criticism I have heard from seasoned attorneys about their freshly minted colleagues--which I largely attribute to the casebook/Soctratic method of teaching--is that law students graduate with the impression that they are supposed to analyze and apply the law in a disinterested, neutral manner as they might in the classroom when called on by their professor to recite the previous night's reading assignment. Issues in Constitutional Litigation does an excellent job illustrating the relationship that attorneys have with the court and their client, as well as the active role attorneys play in shaping the law through zealous advocacy for their client's interests. In other words, the book focuses the reader's attention on the process through which constitutional law is made, not solely on the finished product of that process.

The book, Professor Ricks explains, accomplishes this by "plac[ing] students in roles as practitioners handling simulated law practice problems" and provides a more engaging learning experience through the use of "exercises, visual aids, and questions to guide student reading." The book also "includes materials that help students reflect on their professional roles.” You can purchase Current Issues in Constitutional Litigation online here. Tomorrow’s post will feature an excerpt from the book that you won’t want to miss. 

Are Contracts Clause Claims Actionable Under Section 1983?

The Constitution’s Contracts Clause protects a party's contractual rights from being retroactively modified by state legislation. In his “Federalist Paper No. 10,” James Madison cautioned that, absent such protection, state lawmakers might abuse the legislative process by passing laws that impair the vested contractual rights of their political adversaries.

A recent circuit split has emerged over whether parties may use 42 U.S.C. § 1983 as a vessel for bringing claims against state entities for alleged violations of the Contract Clause.

Earlier this year in Crosby v. City of Gastonia, the Fourth Circuit concluded that a “§ 1983 action alleging state impairment of a private contract will not lie.” 635 F.3d 634, 641 (4th Cir. 2011).

The court acknowledged, however, that “one of [its] sister circuits ha[d previously] reached the opposite conclusion,” citing the Ninth Circuit’s Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (per curiam). According to the Ninth Circuit’s opinion in City of Santa Ana,

Section 1983 provides for liability against any person acting under color of law who deprives another "of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983.

The right of a party not to have a State, or a political subdivision thereof, impair its obligations of contract is a right secured by the first article of the United States Constitution. A deprivation of that right may therefore give rise to a cause of action under section 1983.

A few months after the Fourth Circuit issued its opinion in Crosby, the District of Nebraska noted that "the Third Circuit Court of Appeals [has] held that a cause of action under § 1983 lies for impairment of contract under the contract[s] clause of the United States Constitution as applied to states under the Fourteenth Amendment when state law attempted to take away vested retiree health benefits for a judge. Larsen v. Senate of the Commonwealth of Pennsylvania, 154 F.3d 82 (3d Cir. 1998)," adding,

The court further notes that the Crosby case is not persuasive. The Crosby court relied on the limited holding in Carter and determined that contract[s] clause cases are not subject to § 1983. This court disagrees and will follow the reasoning of Higgins, Larsen, and City of Santa Ana,absent a directive from the Eighth Circuit to do otherwise.

Professional Firefighters Ass'n of Omaha, Local 385 v. City of Omaha, No. 8:10-CV-198 (D. Neb. June 7, 2011). Then in October 2011, the First Circuit issued an opinion appearing to endorse the Fourth Circuit's conclusion in Crosby. See Redondo Constr. Corp. v. Izquierdo, No. 09-2565 (1st Cir. 2011) (citing Crosby v. City of Gastonia, 635 F.3d 634, 640 (4th Cir. 2011)).

One interesting side note (actually, one interesting footnote to be exact). Back in April, the Constitutional Law Prof Blog and Professor Jay Wexler called attention to a peculiar footnote in Crosby v. City of Gastonia, which reads:

n.2 The Clause provides, in pertinent part, that "[n]o State shall . . . pass  any . . . Law impairing the Obligation of Contracts." U.S. Const. art. I, § 10, cl. 1. The Supreme Court and nearly all federal courts have, over the years, inconsistently denominated this key provision of Article I as both the "Contract Clause" and the "Contracts Clause." Because the text of the Constitution speaks of the obligation of "contracts" in the plural, we will use that form of the noun to refer to the Clause in this opinion.

(ellipsis in original). The Constitutional Law Prof Blog goes on to report that a study conducted by "Professor Jay Wexler reveals that federal courts are about five times more likely to use the term 'Contract Clause' than 'Contracts Clause'  - - - 4,800 to 900 cases in the 'allfeds' database."