An Open-Source Administrative Law Casebook?, by Jud Mathews
I really enjoy thinking and talking about casebooks, and administrative law casebooks especially. (This is why I am such a sought-after guest at parties.) Famously hard to teach, administrative law is a challenging subject with ill-defined and contested boundaries. What’s core and what is peripheral? What’s the right balance between constitutional and non-constitutional law? Between the administrative law contained in cases and the administrative law, formed by agency or presidential practices, that evades judicial review? Every administrative law casebook can be read as an argument about what administrative law is.
To get my own bearings in the field, for years I made a practice of switching the book I taught from every two years. Changing books regularly helped shape my own sense of the field, leading me to see connections and distinctions I hadn’t before and introducing me to a wealth of cases I hadn’t read. Inevitably, over time I developed a set of preferences for how to present different topics that didn’t correspond to what any single book had on offer. I ended up doing what countless professors before me have: I put together my own book.
Only it’s not exactly a book, or not only a book. I wanted the materials to be more accessible and less pricey than a traditional casebook, which typically runs upwards of $250 new from one of the major publishers. I also wanted to give students different options for how to access the material. This past semester, I offered students a choice of three formats: as a free PDF, as a print-on-demand softcover book available from Amazon, and as an online course “chart” through the online ChartaCourse platform.
ChartaCourse can accommodate all the kinds of content that would find their way into a print casebook—cases, notes, other materials—plus others, such video clips or interactive quizzes, that can’t. But my favorite thing about the format is that it captures the structure of the course in an organizational chart, in which topics are logically arranged in series of nested nodes that users can expand and collapse, making it harder for students to get lost. I decided to also offer the book as a PDF and in a print format (which is identical to the PDF) because I personally prefer reading things on a printed page, and when I teach, I like to be able to say, “look at the fifth line on page 736.” I’m not viewing this as a money-making venture, so I priced the print-on-demand book and the chart as low as possible ($17.50 and $29.00, respectively).
In inviting me to write this post, Chris Walker referred to what I have created as an open-source casebook. Software engineers might quibble with the descriptor, but the point is, the PDF is free and freely available. Naturally I’d be happy to have others adopt the book, titled U.S. Administrative Law: A Casebook, for use in their courses, and I imagine it’s not only my law students who appreciate a free casebook (or a very cheap one, if they choose a hard copy or course chart). But would-be adopters should be aware of some editorial choices I have made.
The approach of the book is: (1) to focus on (what I view as) the richest and most canonical cases; (2) to edit these cases with a fairly light hand; and (3) to keep the notes and commentary to a minimum. These editorial choices are driven by both practical and pedagogical considerations.
Why longer extracts of fewer cases? I really want my course to burn some administrative law deep into my students’ brains, so that long after they graduate, they will have a working knowledge of the most important concepts and doctrines in the field. Research from other fields suggests, not surprisingly, that intensive coverage of a smaller amount of material leads to better retention than less intensive coverage of a larger volume of material. My aim is to choose a manageable number of cases that offer high educational bang for the buck and to spend substantial time with them. Longer edits of these cases mean that students will really have an opportunity to dig into the opinions and wrestle with the courts’ analysis themselves.
My book does contain notes, but only those necessary to orient students to the topics and cases and to tee up some of the big questions they raise. There are practical reasons for this parsimony: as the sole editor, I frankly don’t have the time to expound at length on all the topics covered, and because I also lack the will to obtain reprint permissions, the book does not contain excerpts from law review articles. Ultimately, though, I don’t think the book suffers much for having me (and other professors) pipe down and let the cases speak for themselves. I have a sneaking suspicion that we may overestimate how much students value—or read—the notes in casebooks.
What cases are canonical is, of course, in the eye of the beholder. What is perhaps a bit unusual about my selection is that I include classics from the 1930s and 1940s, and before, that many casebooks omit or summarize in notes. I do this in part because historically-minded judges and scholars are now taking a hard look at the origins of some foundational administrative law doctrines. Features of administrative law that have long been taken for granted—the “intelligible principle” test of nondelegation doctrine comes to mind—are now coming in for challenge and minute examination. Lawyers whose knowledge of administrative law doctrine effectively starts in the 1970s will be ill-equipped to engage in or counter arguments rooted in older sources. I don’t aspire to comprehensive historical coverage or anything like it, but there are more early cases here than in many contemporary casebooks.
Any approach involves trade-offs, of course. The most conspicuous here is that the book is emphatically a casebook, and so focuses on judicial doctrine to the near exclusion of administrative law made outside of courts. I think a doctrine-heavy approach is justifiable, but it necessarily presents only a partial picture of the real world of administrative law. When I teach the class, I supplement the book with outside materials to teach about presidential rulemaking review and cost-benefit analysis because I think these topics are essential, and the book barely touches on them. (Specifically, I teach a case study on NHTSA’s rearview camera rule, relying substantially on Arden Rowell’s terrific article Partial Valuation in Cost-Benefit Analysis, 64 Admin. L. Rev. 723 (2012).) The book is also probably not a great choice for someone teaching administrative law for the first time, as there is no teaching manual, and the scant notes mean that it falls to the professor to keep students from losing the thread. On the other hand, the book has the virtue of being current. The version available now on Amazon and SSRN is the second edition, and I consider it up to date through January 2021.
My current plan is to continue to make regular updates to the book. In that spirit, I would welcome any and all feedback: on case selection, organization, presentation, etc. If nothing else, this whole venture gives me another excuse to talk about administrative law casebooks.
Jud Mathews is a Professor of Law at Penn State Law.