Legal Commentary

• (H/T for the term: James Grimmelman and Hillel Levin)

Some further thoughts on the idea of dumping the casebook for unedited or self-edited cases and a treatise, including responses to comments both here and in private e-mails.

First, there are two separate components that must be made to work and they raise distinct issues. One is the idea of assigning unedited cases. Yes, there are pedagogical benefits to teaching students to read and sift through full cases. But that value runs up against genuine time concerns. As my colleague Tom Baker (who is an author on three casebooks and who gave a bemused smile when I talked to him about this idea) pointed out, the Establishment Clause section of his First Amendment book is 150 pages--the full cases run to more than 1000 pages in U.S. Reports. Obviously, we cannot assign that many pages of reading for just one part of one class; what would happen if multiple professors followed suit--the reading load would be genuinely unmanageable. So that puts the editing onus on the professor--and how many of us have the time (and ability) to do as good a job editing those unwieldy 1000 pages to that workable 150 pages?

So here, it may depend on the course. A course--con law, First Amendment--where the law comes from multiple major pronouncements from the highest court may not lend itself to this, because the volume of cases is too high. It could be a problem in common law (as opposed to statute-heavy) classes generally. On the other hand, it may be easier in civ pro, which is statutory and less case-heavy (in some parts) or deals with fewer cases (in other parts). For example, one can cover Erie with six major cases and student knowledge about a few others, which they can glean either from the unedited case or from that treatise. Commentators to my first post both related success in a similar approach in contracts and in patents. A unifying theme there is a subject combining statutes and judicial elaboration, much like civ pro.

The other component is the treatise and the issue of the value of treatises as primary material. Do students learn from treatises? Is a treatise not challenging enough as a primary source--students are learning too passively because the job of synthesizing is being done for them? Of course, before Langdell, legal education was a combination of treatise study and apprenticeship. I am not suggesting a return to that model, which obviously would put me out of a job. I recall reading a discussion somewhere a couple years ago on the question of teaching from treatises--I cannot remember how the discussion came out. The danger, of course, is that students will skip the cases and only read the treatise, thus a hoped-for educational benefit--learning to read and comprehend cases, especially less-edited cases--is lost.

Second, the greatest danger (as one commentator who has tried this method points out) is pushback from students. Students tend not to like anything different from class to class simply because it's different, regardless of how effective it might be. Not sure how to overcome that, except by sticking to your guns if you think this is the right way to go. Ironically, of course, the most-common modern criticism of legal education (including from students) is the casebook and the case method, so go figure.

Third, James Grimmelman makes the key point: How the material is taught in class stylistically is the foundational issue on which the question of what material rests. For myself, I often teach top-down and at the macro level, talking about broad connecting principles (gleaned from all the cases) and referring to multiple cases together as addressing a point, rather than working bottom-up by going step-by-step through discrete cases to pull out principles and connect them to the next case. I want class discussion to be the point at which their disparate materials are synthesized and connected up. A colleague during tenure-review described my Fed Courts class as structured like a law review article (he insists he meant that as a compliment). So a treatise could work with that style, because it guides the students in synthesizing everything before they walk in the door. It may be less-effective with a more case-and-facts-grounded approach.

Fourth, a point Jessie made in her original post on the subject of casebooks bears repeating: It may depend not only on the subject and not only on teaching style, but on the connection among prof, teaching style, and course. The more "expert" I feel in a subject, the better able I am to go off in this direction without needing the guidance of the casebook. Thus, I think I may be more willing to do this in Civ Pro and Civil Rights, less willing in a course such as Fed Courts or (if I were asked to teach it again) Legislation.

I don't know where I will come out on this. In the abstract, it is an intriguing idea, although it also would be a tremendous amount of work up-front. And the more I think about it, the more holes I find in the idea.