The Volokh Conspiracy
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Criminal Procedure Casebooks and Generational Change
Thoughts on revising a classic Crim Pro casebook.
I spent the last three months revising the 4th Amendment materials of the Kamisar LaFave & Israel Criminal Procedure casebook for the 16th edition of the book, which will be available for the Fall 2023 semester. I thought I might say something about the experience, as I think it raises interesting questions about generational change in law school courses and materials — and perhaps about the state of the criminal procedure field today.
First, some context. The Kamisar LaFave & Israel casebook basically invented the field of constitutional criminal procedure as a subject, starting with its first edition in 1965. I've been on the casebook for well over a decade, but until now I had responsibilities for only a small part. This time around, I am taking over most of the 4th Amendment materials as part of a broader generational shift in the book. This is a little bit oversimplified, but the basic idea of that generational shift is that Eve Brensike Primus has taken over the interrogation law and right to counsel materials from Yale Kamisar, who passed away earlier this year; I have taken over the Fourth Amendment materials from Wayne LaFave, who has retired; and Nancy King has taken over the adjudicatory criminal procedure materials from Jerry Israel, who has also retired.
Revising a classic casebook is a daunting prospect. Each of us "second generation" authors is well aware we are following the footsteps of true giants in the Criminal Procedure field. But it also seems to me the nature of things that, as one generation of editors moves on to the next, each new generation will recast the materials to fit the new set of authors — and a new generation of readers. Along those lines, I ended up quite considerably rewriting the Fourth Amendment materials of the book. Much of the basic structure is similar, and many of the main cases are the same (albeit re-edited). And while some of the changes are author preferences — do you spend a lot of time on the facts of cases? How long do you spend on dissents? etc. — some of them strike me as more generational shifts in how to think of law school casebooks, and the field of criminal procedure, more broadly, that might be of interest to a broader readership.
Below are some of the significant changes in focus I tried to introduce to the Fourth Amendment materials. My understanding is that my colleagues have made similar changes to their materials, too. But as I am writing this in my own capacity, I'll focus on the approach I took in the search and seizure area:
Clear statements of black-letter law. In an earlier generation of casebooks, it was common to present the cases as cases and to leave the assembly of the doctrine more to the students. That is now outdated. Students today can get the black-letter rules anywhere, from wikipedia to Youtube to commercial outlines to outline banks online. Given that the rules are not some sort of carefully-guarded secret anymore, it seems odd to not integrate the black letter law rules into the casebook itself. I think it's easy, and helpful, to state the rules up front and to then focus the materials on the hard part of how they apply and whether they are persuasively justified. In redoing the materials, I tried to be clear about what the rules are, at least to the extent the rules are clear, and to say what rules are unclear and why.
Increased attention to history. In an earlier generation of criminal procedure casebooks, the law was largely about the Warren Court's major rulings. That is still partly true: The canonical cases are often 1960s-vintage (in Fourth Amendment law, think Mapp, Katz, Terry, etc.). But the Warren Court ended over a half-century ago, and today the 1960s are more a key part of the story than the entirety of the story. In particular, today's Supreme Court and lower courts interpreting the Fourth Amendment often care a lot about the common law and the origins of the Fourth Amendment. It seems to me that a casebook today needs to cover that: You can't understand where we are without knowing the pre-Warren Court history. So my reworked materials start with a section on the history and the development of the Fourth Amendment, starting with Entick v. Carrington (1765).
Increased attention to race and racial justice. In recent years, especially after the killing of George Floyd, questions of race and racial discrimination in law enforcement have become central issues addressed in law school courses in criminal procedure. In rewriting the materials, I aimed to make those questions more prominent. That took different forms throughout the materials, among them: (a) adding commentaries about the role of race in criminal procedure; (b) adding more coverage of topics that were less prominent before, such as the law of excessive force, (c) reporting on empirical studies about racial disparities in search and seizure, and (d) directly addressing areas in which race and doctrine intersected, such as whether the seizure test should incorporate the race of suspects.
Increased attention to social science and empirical studies. In the last decade or two, there have been a lot of very useful social science and empirical studies that give insights into how the law of criminal procedure works. Some of the studies are on the scale of the criminal justice system: How many arrests occur each year? How many warrants are out for persons' arrest, and for what? Other studies are on how often different doctrinal paths are taken: How often do people consent? How often does an automobile search lead to discovery of evidence? Other students are on racial disparities: How often are people of different races subject to Terry stops? How often are people of different races frisked? Others are on psychology of police-citizen interactions: Why do people consent to search? When do people feel free to leave? What influences judicial findings of probable cause? Students who read Supreme Court cases will want to know how some context of how they work, and I think it's really useful in various places to summarize the empirical studies so students can contextualize the rules.
Increased awareness of state practices. In an earlier generation, it was assumed that the U.S. Supreme Court had federalized the field of criminal procedure. The Warren Court had made the law uniform, so there was one body of law to learn. Today, though, state practices have become more important again, in part because the U.S. Supreme Court has limited the reach of some federal doctrines. A student who goes on to practice criminal law might practice in federal court, or in a state that sticks with the federal standard. But they might practice in a state that has a lot of state limitations that exceed the federal threshold. You can't go through all the state practices, of course, and the federal standard is still the floor and governs in many places. But it can be useful to point out some areas where state practices differ, and more generally for students to be aware that state practices in a particular state might have state-specific doctrines that go beyond the federal floor.
Those are the main kinds of changes. Of course, adding these materials meant that other materials had to be taken away. We're trying to keep the book the same length, and maybe shorten it if we can. Among the items that I tried to shave down a bit (or even cut out) to make room for new materials included: (a) Trimming or eliminating materials that were "hot topics" in an earlier era, but are less prominent today, such as legal issues involving the War on Terror, (b) Trimming dissents from older cases, some of which were included at great length in earlier editions because those Justices were still on the Court and might have future majorities (as time passes, that becomes less significant; dissents are needed to frame debates, but they can often be shorter because those Justices are no longer on the Court); and (c) Trimming cases that were recent at the time of earlier editions and may have seemed like important new directions at the time, but that over time have come to seem significantly narrower because they did not actually lead to new paths.
The new 16th Edition of the casebook will be available for the Fall 2023 semester. I hope professors find the changes helpful, and that students enjoy the experience of reading it.