Designing “Guns, Abortion and Climate Change - What is next for State AGs?” with H2O Open Casebook
This fall I’ve been working with Harvard Law School Professor Jim Tierney on a new reading group that will cover three recent Supreme Court Opinions that have had tremendous impacts on the legal world. While there has been much debate and legal analysis on West Virginia v. EPA, New York State Rifle & Pistol Association v. Bruen, and Dobbs v. Jackson Women’s Health Organization, this reading group will focus specifically on aspects of these cases and their consequences that impact the function of state attorneys general. Attorneys general serve important roles as defenders of state laws, law enforcement officers, promoters of safety and welfare, and representatives of states’ interests against private parties and the federal government. This course will explore how these roles interface with these three court decisions in unprecedented ways.
The Structure
This course is a one credit reading group at Harvard Law School. It will consist of six meetings. Every other week will focus on one Supreme Court decision: West Virginia v. EPA, New York State Rifle & Pistol Association v. Bruen, and Dobbs v. Jackson Women’s Health Organization. Three of the class meetings will be fairly traditional case method, focusing especially on argumentation and positioning of states and state attorneys general during the appellate process. After the groundwork for each case is set, the next week will be a practical, news event-heavy discussion of exactly how state attorneys general are reacting to the new legal landscape post-decision.
Each unit will be different, precisely because the responses to each decision are different. For Dobbs, state attorneys general are at the forefront: there’s no need to develop hypotheticals, because complicated legal and policy questions are being faced every day across the country. As the Supreme Court decision pushed abortion access decisions to the states, questions about federalism, state comity and interstate conflict, and the pragmatic role of state AGs cropped up. Academics have been looking at these issues, and law review articles by David Cohen and Greer Donley provide a useful sample of the terrain.
Within the Bruen unit, the discussion will be focused on (a) the intersection between state AG and local prosecutors in terms of prosecutorial discretion, (b) creative and novel methods to enforce gun control mandates in this changing legal landscape, and (c) state AGs’ mandate to defend the constitutionality of state statutes if challenged. This discussion will be supported by news articles and several gun control cases argued by state AGs.
WV v. EPA is a little more complicated for this course, because the repercussions of this case are somewhat more abstract than in the two previous contexts. The effects of an expanding major questions doctrine are diffuse. Major questions doctrine could extend to even extraordinarily local regulations; state constitutions and regulatory schemes might implicate state versions of the major questions doctrine; state AGs played an important role in the briefing and appellate process of WV v. EPA; and state regulatory bodies may adapt their approaches in order to compensate for the newly-weakened federal administrative agencies.
The Materials
H2O is a nonprofit open casebook platform run out of the Harvard Law School Library. We chose to use it because of its flexibility and digital-first design, and found some additional helpful features along the way. First, H2O is integrated with the Caselaw Access Project, a database of nearly seven million cases. Every case we’ve needed to provide as background for this course is available in the database, and a quick search within the H2O editing window embeds the correct case. This course will also analyze well-known, foundational legal doctrines, and the H2O catalog has some ready-made lists of these types of cases ready to be added to our casebook with a single click. For instance, we wanted to provide a handful of important cases in abortion rights. We searched in H2O’s collection and found a book called “Landmark Decisions: Birth Control and Abortion.” After adding it to our casebook (and appropriately crediting its author: the Harvard Law School Library), we could then immediately begin annotating the cases to suit our needs.
This course is focused on three cases decided just in the past year. Caselaw Access Project’s database, however, only includes cases published before 2019. This wasn’t a problem - since all caselaw is in the public domain we could paste these more recent cases into our H2O casebook. We used Justia and Oyez to source cases, although WestLaw and Lexis or any other platform could work too. The formatting was surprisingly easy for a copy-pasted text field; much of the formatting correctly migrated from the outside platforms to H2O and created a readable case. We corrected the small handful of formatting issues while annotating the cases, so formatting barely took any additional time.
Given that this reading group is focused on an area of law that is rapidly developing and not well-represented in legal academia, H2O being online and easily editable is very beneficial. Throughout the process of planning this course, a relevant law review article, countless news articles, and a handful of press releases were all published. Because H2O is so flexible, we were able to add these sources directly into the casebook the day they came out, and could immediately begin editing and integrating them with the rest of the syllabus. Not only was it easier as we planned the course, but it will be seamless if new events transpire during the semester. There’s no need to send students an email with additional readings; H2O lets us immediately add them to the casebook.
This reading group is a brand new offering at Harvard Law School in spring 2023. The casebook is available on H2O Open Casebook and can be freely used and edited for other classroom applications in the everchanging world of state attorneys general, gun control, abortion rights, and climate change.