Legal Commentary

I received three casebook royalty checks this week.  I'm very grateful for the checks, but let's just say I won't be quitting my day job any time soon, and calculating my hourly rate for casebook writing would be downright depressing.  As a result, I probably should be reflecting on why I write casebooks at all, but instead I've been thinking about  how to write casebooks. 

I enjoy writing casebooks tremendously.  Writing a good casebook is like solving a puzzle.  You search and search to find the right case to demonstrate a particular legal doctrine.  Ideally the case has interesting and memorable facts and a clear and lucid discussion of the law.  An occasional persuasive yet compact dissent is a bonus.  Even after you've found the right case, you must edit it within an inch of its life without destroying its heart and soul, which really challenges you to understand the case not just as a legal document but as a literary product.   A further challenge is to see if you can organize the case so that it either forms part of a logical progression of principles or benefits from being read in juxtaposition with other cases.  If you get this part right, your editing and organization will seem obvious and you will get absolutely no credit for the thought that went into it.  ???But that is fine, because you will know what the process entailed and you will have had fun doing it. 

I am very opinionated about the proper role of the casebook author.  My overall goal in writing casebooks is to be as invisible as possible.  Casebooks are not the place for self-indulgence.  A casebook helps students understand and critique the law as it currently is.  A casebook is not the place for a professor to remake the law as she wishes it to be.  [Neither is the classroom.]  Instead, a casebook is the place to give students the tools they will need to remake the law as they wish it to be.  I should state for the record that I realize complete invisibility is unattainable:  both editing and explanation involve choices, and these choices inevitably reflect the biases of the author.  Moreover, though I strive mightily, I'm certainly not above including a self-indulgent note here and there or slipping into passive voice or committing any one of a thousand writing sins.  But even if invisibility is impossible, striving for it still seems worthwhile.