Legal Commentary

Writing a good casebook is a thankless task.  If a casebook is well constructed, the professor using it will never give much thought to its construction.  The organizational choices made by the casebook author/editors will seem obvious, the notes will seem insightful but unobtrusive, and the editing of the cases will be invisible.  If a casebook is poorly constructed, however, the professor will curse the name of the author/editors every day all semester.

I've had a lot of occasions to curse.  Since I started teaching, I've used fifteen different casebooks (not counting new editions): four in Professional Responsibility, three main and three supplemental in Torts, and one each in Mass Media Law, Advanced Torts, Constitutional Law, Jurisprudence, and Labor Law. 

I'm thinking about this topic now because my co-authors and I are in the process of revamping/revising/rethinking a venerable Mass Media Law casebook for its eighth edition.  There are numerous issues involved, though two in particular are plaguing me. 

First, this casebook was venerable before I came on board in the seventh edition, but, like all casebooks, it has put on bulk over the years and needs to slim down.  The question is how to slim it down without losing the underlying structure and coherence that those who currently use it appreciate.  [I don't want users to say "it sure was a great casebook before they brought that Lidsky on board as a co-author."]  I have been assigned the task of slimming the chapter on defamation from 110 pages to something more like 60 or 70.  I find this task particularly challenging because I love defamation law, every little complexity and technicality and nuance of it.  But defamation is nowhere near as important to media lawyers as it once was, and it is self-indulgent to spend three weeks of a course on defamation.    So I'm trying to look with fresh eyes to decide what is absolutely essential.  This is not easy.

A second issue is that the entire media industry is in upheaval.  How do you reflect this seismic shift in the industry in a casebook, when it is not fully reflected in the law yet?  You want the book to be modern and current, but you don't want it to be obsolete a year from now.   In essence, you get cast in the role of prophesying how the field will change in the next five years, when even the answer to the most basic question--which actors count as "press" or "media" for legal purposes?-- is in doubt.  

While grappling with streamlining the casebook and scrying the future, I'm also trying to be mindful of qualities I hate in casebooks.  The author of my Advanced Torts casebook clearly has an encyclopedic knowledge of his subject matter and the coverage area is great, but he never met a detail he didn't like.  I love the problems generated by the authors of one of the Professional Responsibility casebooks, but giving the students ten snippets of cases to try to answer them seems like asking a lot.  The beauty of using the book is that it makes the professor seem really, really smart, but it also makes the students completely dependent on the professor to make sense of things.  One of my Torts casebooks has the opposite problem.  It makes things look so totally lucid and clear that the students always believe you're making things harder than they need to be.  It also makes the exam a great shock.  

I hate casebooks that have long series of cases edited to half a page or less.  I hate it when authors eliminate the cases cited in a constitutional case.  If the Justices cited Miami Herald v. Tornillo, I want to know about it because Tornillo is shorthand for a whole body of principles.  The students may not appreciate that fact, but I do, and they will never appreciate it if they aren't exposed to it now and repeatedly.  I also hate casebooks that eliminate the section headings from constitutional cases. I hate casebooks that cite cases in notes without explaining why they're cited.  I hate casebooks that have more than about six or seven notes per case.  I could go on . . .