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Sunday, March 23, 2008
A Call for "Light Editing" of Cases in Casebooks
Is anyone else bothered by the trend in many casebooks (sadly, I’m only familiar with topics about private law) to eviscerate a case by editing it down to its bare essentials–which can literally mean only a few lines? I suppose the idea is to save time for a busy law student by boiling the issue down to some kernel of wisdom. Or to make certain an author covers a certain topic. However, what is this teaching, especially for first year students?
I would suspect that we lose out in teaching the secondary ability to subtly discriminate from vast masses of information while reading. In law practice, a 40 page case may have 2 paragraphs of import. There is a certain skill in being able to drill down to that central theme from the rest of the fluff. Isn’t that something that’s learned and takes time? But by doing this for law students right from the get-go, are we at cross purposes here? By third year, do students expect that all cases in life must be edited and are lost at sea when they’re not (or at the very least - complain in upper year classes if reading assignments push past 30 pages).
Or, at the very least, is this why we end up with lawyers who, in their briefs, cite volumes of a case for a tiny principle of evidence or a point of civil procedure. Next we’ll be asking for headnotes for the headnotes. I realize a law student has only so much time, but is the cost-benefit analysis of heavy editing here fulfilled in a rational way? If one assigns 30 pages of reading and it’s 20 cases with principle stacked upon principle, is that really what we’re supposed to be doing? Again, what happened to the ability to discriminate?
Another bugbear created from this is the “missing facts” scenario. A heavily edited case in a text misses a key fact which goes to the heart of the legal issue. One is then surrounded by questions which revolve around this gap. This prompts the instructor (hopefully!) to go look up the case (if she hasn’t already done so in the first place) and read the whole thing. Haven’t we all been there before? You have to fill in the facts (“oh, the train had NO brakes? oh...now I see.”). This burns more class time in explaining perhaps incidental factual issues instead of learning the more sublime skills of lawyering.
I’m currently trying to write a casebook on Canadian insurance law. Way more work than I imagined (and its relative 'weight' within the scholarship continuum is a debatable topic for another day). Picking the cases is not easy. Editing them is excruciating. But I’m going for the “lightly edited” cases, as isn’t it always really about the facts, even in law school?
In short, I wish casebooks contained “lightly edited” cases, which still had some of the procedural and - most notably - factual flavour in them. This heavy editing tends to create more problems than it solves. Does anyone else agree?
Posted by Erik Knutsen on March 23, 2008 at 11:45 AM in Teaching Law | Permalink
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Comments
Orin, I have three paradigmatic cases in mind.
1) Deciding what the law is on a given issue. (E.g., if we draft the license text this way, would a court find someone who does X in breach?) This is focused work; most matters in a case are extraneous to the question.
2) Learning some new question or area quickly. Cases are a terrible way to go here because they're so linear in addressing the matter before them. Reading a few chapters form a good secondary source is a much clearer way to figure out what the relevant landmarks are.
3) Going deep on a problem: trying different legal theories or frames out until you find one that captures the essence of a fact pattern, would favor your client, and/or has a compelling inner logic to it. Here, you need unedited raw cases, and as many of them as you can find without crossing into irrelevant ones
A casebook CAN help with a lot of these, if it happens to have especially well-selected cases that are illuminating, that describe doctrine clear, that happen to address the issues you're looking at, or are surrounded by good contextualizing notes that replicate the experience of a good secondary source, too. In other words, a high-quality casebook that's half treatise--like, oh, say, yours.
Posted by: James Grimmelmann | Mar 26, 2008 7:14:40 AM
I agree with your premises. Absolutely. I suspect the difference between light/heavy and good/bad is semantic only. In fact, I purposely didn't choose those normative terms but of course, by implication, that's precisely what I meant. So good/bad, heavy/light, focused/unfocused, whatever it is.
If you want to push the notion, how about "editing for contextual understanding" as opposed to "editing for length." Perhaps that is even more precise than good/bad or light/heavy.
Posted by: Erik S Knutsen | Mar 25, 2008 10:23:12 PM
Over on my blog, I suggest that you're confusing light editing with bad editing.
n the casebooks I co-author with Bill Klein and Mark Ramseyer, we strive to produce works that teach the gist of the law students need to know and train them to apply that law in both litigation and transactional settings. Towards this end, we attempt to ruthlessly excise as much bloat as possible. To be sure, many judicial opinions are incredibly bloated, but to the extent that observation has pedagogic value we assume that students have learned it by the end of the second week of law school, let alone by the time they get to a second-year course like Business Associations. Accordingly, judges get one chance, but only one chance, to state the law. After that, repetition goes out the window (at least, ideally).
At the same time, however, the devil is in the details. Accordingly, we include the facts and all their ambiguity. We want students to grapple with the facts more so than the legal rules, because that’s what we think judges and lawyers do.
Posted by: Stephen Bainbridge | Mar 25, 2008 10:13:32 PM
James,
What kind of practice experience do you have in mind? What you describe doesn't resonate with my law practice experience, but maybe your experience was different. In the case of my computer crime casebook, for example, I assign specific cases for exactly the same reason lawyers needed to know those cases in practice; I think the student experience of reading the cases is pretty similar to a lawyer's experience of reading them "in the wild." That's my sense, at least: maybe your practice experience was different?
Posted by: Orin Kerr | Mar 24, 2008 3:07:36 AM
Orin Kerr wrote, I disagree. I think that a well written secondary source is a good way to get a basic idea about an area of law, but the only way to really understand the law is to read the cases. And once you have the facts at hand, the only way to know if there's law on a particular factual issue is to read cases. Either way, it's largely about reading the cases.
The case you read to "understand the law" is not the same case as the case you read to "know if there's law on a particular factual issue" and neither of these is the same as the case you read in a casebook for class. All three may have the same name and the same text, but they're different cases because the manner in which one reads them is so different. It's great for students to get practice in "reading cases," but the routine of reading a given passage in a casebook for each class session doesn't necessarily give students the same kind of reading skills.
Perhaps a better way to develop those skills would be to assemble a reader of oh, let's say 250 cases for a course. It would start with two weeks during which the students were simply on their own to familiarize themselves with the general lay of the land. Then, for the rest of the term, the drill would be that 24 hours before class, the professor would email out a list of specific questions and problems for the next class. The students would scramble to dig deeper to find answers to those questions. Lather, rinse, and repeat.
Most of my points above were directed to the artificiality of the edited casebook and class discussion. If we could make those sessions more closely tailored to the work of practicing lawyers, then that would also suggest moving casebooks closer to the way that cases appear "in the wild."
Posted by: James Grimmelmann | Mar 23, 2008 10:04:00 PM
Hi Erik,
Good to see you in the blawgsphere (blawgosphere?). I have just finished a project as editor-in-chief of a Constitutional Law casebook with 21 contributors. Although it was often difficult to coordinate the efforts of so many people, the parameters I set out for them placed emphasis on both context and having each case be understandable for the proposition(s) being presented. This resulted in a mixing and matching of fuller versus more heavily edited cases, but, on the whole, they all work within the confines of what they were meant to achieve. That, to me, is the key for a successful casebook.
Best of luck with your Insurance Law project! Drop me a line if I can be of assistance.
Len
Posted by: Len Rotman | Mar 23, 2008 9:59:20 PM
I got the sense taking Rick Hills' Con Law course that he chose Sullivan and Gunther's Con Law precisely because it brutally edited so many cases. Not that I think Hills liked the brutal editing. He obviously didn't. I think he liked being able to have at least *that* to scream and yell about each class. :) (Thankfully he filled us in during class on all we were missing.)
Posted by: Brutum Fulmen | Mar 23, 2008 8:48:58 PM
There are several cases where it's difficult to track not just the factual situation, but also the argument, once it's been edited down. I worry a little about that when editing my own cases for student reading and tend, like you, to lightly edit. But I worry more about a slightly different problem -- the fact that in many areas reading just a couple of cases -- particularly just a couple of Supreme Court cases -- leaves the students in the dark about how the legal conflict actually plays out in courts. However, beyond having students read 20 cases or more per class, I'm not sure what the best way to address that problem might be. Casebooks typically take the route of emphasizing the origins of the dispute -- the big, often-cited cases that are often relied on in later cases as analogies -- but that tends to give students the 10,000-foot overview without an indication of how it looks down in the weeds.
I agree with Orin somewhat. There are moments in practice that mimic what a class discussion of a case attempts to extract -- namely, attempting to apply a case to a fact pattern that imperfectly mirrors that in the original case. That's mostly a litigation exercise for novel situations, something many litigations are likely to present, particularly at elite law firms or high-level government practice. But there are other practice moments not captured so well by this method. Sometimes in a well developed area the client simply wants to know what the law is. For that a treatise would make better reading. Sometimes one might have a statute or regulation but few or no cases. I try to do that in my Internet Law class, but it's a bit of an alien experience for professor and students alike. Transactional lawyers need to envision likely issues and work their way around them, and are unlikely to need to closely parse any one case (one I know used to make fun of me when I discussed researching an issue: "What's a library?" she would say). Practical exercises would be better training there.
Posted by: Bruce Boyden | Mar 23, 2008 2:28:55 PM
James Grimmleman writes:
Reading cases for class is an odd system, and not one that really resembles anything students will ever have to do in practice. Practicing lawyers might need to learn an area; the best way to do that is to go to a well-written secondary source. Practicing lawyers might need to see if there's law on a particular factual issue; if there is, then their reading will and should be driven by the facts at hand.
I disagree. I think that a well written secondary source is a good way to get a basic idea about an area of law, but the only way to really understand the law is to read the cases. And once you have the facts at hand, the only way to know if there's law on a particular factual issue is to read cases. Either way, it's largely about reading the cases.
Posted by: Orin Kerr | Mar 23, 2008 2:01:52 PM
I think the rule for case editing should be the same as the rule for your own writing: Tell them everything they need to know, and edit out everything they don't. Some casebook authors edit out too much; for example, they edit out the facts when the facts are needed to understand the context of the legal discussion. At the same time, I think it's a mistake to retain irrelevant discussion, as (a) many students won't realize it is irrelevant and (b) many students will just think your casebook is rambling and incoherent.
It's true that in real life, cases are not nicely edited. But if you are writing a novel, you wouldn't include long sections that are irrelevant just to replicate the conditions of real life.
Posted by: Orin Kerr | Mar 23, 2008 1:55:32 PM
I should also add that different editing styles connect with different teaching styles, and there's often no "right" or "wrong" way to do either. The Cohen et al. casebook on copyright is a marvel of heavy editing--much heavier than I would have thought possible. That means that some cases have had interesting sections sliced out; the compensation is that other cases have been included that tee up important issues incredibly concisely. This style leads to great class discussions on the implications of a given holding for other possible fact patterns; students can grasp the rule easily, so we spend our time wrestling with how to apply it. I wouldn't want to use this approach for first-year students, but with a primarily third-year class, it's very satisfying.
Here's a contrast: the Joyce copyright casebook tends to have one high-quality illustrative case per section, followed by an outstanding string of notes that discuss in brief important issues raised by other cases. I couldn't teach from it in the same way I teach from Cohen. It really encourages using the principal cases as the backbone of a sustained discussion, with the notes being woven in as points come up. They're both great casebooks, but they would work differently in the classroom. I'm a big fan of teaching in the style that works; I imagine that you do a better job with lightly-edited cases because they connect with your strengths as a teacher, e.g. an ability to make students understand how to read a long case intelligently.
Posted by: James Grimmelmann | Mar 23, 2008 1:37:44 PM
Some thoughts:
It depends on what the goal of teaching is; if we can't agree on that, I doubt we can agree on how casebooks should be edited (or even on whether we should use casebooks at all). If the goal is to teach students good reading and skimming skills, then long,lightly edited cases are good. If the goal is to teach them close reading and careful analysis, a few short but very dense cases are better. If the goal is to teach them application of law to facts, then moderately-edited cases followed by good questions raising interesting hypos are ideal. If the goal is to teach them problem-solving, then good problem statements are essential, and the case editing is less significant. If the goal is to teach a lot of specific black-letter law, then heavily-edited cases and lots of them would be properly directed. if the goal is to get them to think about policy implications, then why assign cases at all?
One of the most frustrating things we as professors do is force students to play the guessing game of "Why are we reading this case?" (As a professor, I find it frustrating when casebook editors force me to play the same game.) The students could probably extract from the case the two essential points--if they had any clue which two points I was aiming at. For this reason alone, I like to assign short segments from many cases, rather than long segments from a few. If I told the class more explicitly which aspects of a case I'd expect them to be ready to discuss, then I could get away with longer case segments. It's quite often, though, that even an "edited" case will include several pages on the history of a doctrine, material that rates a minute or so in class and which I don't care if the students forget immediately. I never like to have that stuff included.
Reading cases for class is an odd system, and not one that really resembles anything students will ever have to do in practice. Practicing lawyers might need to learn an area; the best way to do that is to go to a well-written secondary source. Practicing lawyers might need to see if there's law on a particular factual issue; if there is, then their reading will and should be driven by the facts at hand. Class reading is rarely that contextualized. Practicing lawyers might need to read new cases in their area of practice; unlike students, they already know the landscape and will be able to scan very quickly through the background that repeats the law they're familiar with.
I always want a case's procedural posture to be included, and, particularly towards the start of a unit or of a course, to have the standards of review a court is using, as well.
Posted by: James Grimmelmann | Mar 23, 2008 1:27:14 PM
While I agree to an extent, I have some caveats:
In one of my classes (I'm a student), we read the full cases, and it's more annoying than helpful to have to skip past pages and pages talking about an issue that's not related to the topic of the class.
I also appreciate the heavy editing in books like Sullivan and Gunther's Con Law: there's no way we could read the hundreds of pages written by the Court in any given area, so to pick a couple of major cases to focus on and then give tiny excerpts of all the others is a reasonable way of covering the entire ground of that topic.
"By third year, do students expect that all cases in life must be edited and are lost at sea when they’re not[?]" No, they don't. By third year, students have spent two summers working in legal jobs and perhaps have done a clinic or an internship or something as well, all of which give students opportunities to learn these skills. This is not to say, "Oh, don't worry about it, they'll learn how to do it in real life," because that's silly -- what's the school for if not to prepare for real life? But it is to say that one shouldn't be TOO concerned about this possibility.
Posted by: Jason | Mar 23, 2008 12:38:27 PM
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