©2019 Lawrence Lessig, licensed CC-BY-SA
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About this book
Elided text (i.e., the parts of cases removed) is indicated by “[...].” Footnotes not elided can be found at the end of the opinion.
To JZ, who has done so much — if silently and without attribution — to inspire the innovations that will make the law more accessible and hence better.
This open source — as in freely licensed (CC-BY-SA) — casebook is a companion to my book, Fidelity & Constraint (Oxford 2019). It covers the course material of federalism, separation of powers, and the Civil War Amendments, organized into a framework for understanding how the Supreme Court has developed these doctrines. That framework is suggestive for domains beyond the scope of this casebook.
The casebook can obviously be used independently of the book. Ideally, it would be used against the argument of the book, by adding material that contradicts or weakens the arguments that I have offered there. But the intent was to offer both readers of the book a way to see the source material more easily, and for users of the casebook to have a source to read more deeply.
Obviously, there is a great deal of constitutional law not included within the scope of this casebook. Our hope is that others will remix this version, and add sections to cover the missing parts. If that use develops, we will find a way to display the competing versions. Our ultimate hope is to encourage a kind of casebook-authoring-competition, so that the extraordinary talent of law professors across the country could find an easier way to express itself, free of the economic constraints (and opportunities) of traditional publishing.
I am grateful to my friend Jonathan Zittrain for making the extraordinary talent of the Harvard Law Library available to me to complete this work. On that team, I am especially grateful to Brett Johnson, who has shepherded this project from a messy beginning to an end which is at least a sharable beginning with patience and incredible insight. I am grateful as well to the many students who have helped correct and edit the cases in this book, especially Louis Murray, Nate Sobel, Adele Zhang, Rocky Li, Zak Lutz, Elias Kim, and Matthew Arons, as well as Catherine Biondo from the library. I am also very grateful to my assistant, Valentina de Portu, who completed the first version of this book, inspiring the project that produced this version.
By publishing this casebook, I join a movement to make the material of the law more affordable and accessible, as well as to make modifying and improving that material easier, both technically and legally. I hope others will join this movement too. I recognize that in one sense this competes with the extraordinary work of many, including many friends and teachers, who have developed extraordinary casebooks covering similar material. I hope it is obvious that in another obvious sense, it doesn’t begin to compete with their work: I have not provided the powerful and helpful editorial material so many great casebooks offer, including the questions and followup matter. For many, cost notwithstanding, other casebooks will continue to make sense. I hope for some, a simpler connection with the source material will offer value.
This project depends critically on others contributing to the improvement and evolution of the source material. You can join that community by creating an account on this open digital textbook platform H2O (opencasebook.org), cloning and remixing these materials (opencasebook.org/casebooks/128853) or any of the other casebooks or materials collections on the site.
This book, and all H2O books, are Creative Commons licensed for sharing and re-use. Material included from the American Legal Institute is reproduced with permission and is exempted from the open license.