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Tuesday, March 25, 2008

Why Do We Counsel Against Commercial Outlines?

Why do so many law professors caution students to stay away from commercial outlines? Isn’t it a bit odd that we think students must be protected from certain books?

Perhaps commercial outlines are not the best way to learn the law. That’s arguable. I certainly hold the opinion that commercial outlines provide information that is woefully incomplete, at best.

But the attitude of much of the legal academy goes far beyond these modest contentions. Commercial outlines are treated as if they are intellectual poison. Wow. Does reading a commercial outline actually damage the ability of a student to learn? I can’t believe that. For one, I can’t believe commercial outlines wield quite so much power.

More to the point, I think my students are too smart to be injured by reading – whether it’s Karl Marx or Steven Emanuel.

In my classes, I encourage students to read commercial outlines (as well as anything else they find helpful). And the sooner the better. In my ideal world, all students would have a basic understanding of the blackletter law in a subject before reading the cases. It seems to me a sorry waste to read a case primarily to separate doctrine from chaff. I want students to read cases at a higher intellectual level, casting a critical eye on the court, questioning the motives of the parties, and learning how the blackletter doctrine works, or doesn’t work, in the real world.

Remember chemistry? You probably started with the Bohr model of the atom, in which electrons orbit the nucleus like planets around a sun. The Bohr model of the atom is a terrific starting point for learning chemistry. It is also wrong. Later on in chemistry, you learn to think in terms of valence shells, understanding that electrons exist in spherical clouds of varying probability. It’s an open secret that the Bohr atom is incomplete and deceptive. But it’s still useful to beginning students.

Blackletter statements of law are like the Bohr model of the atom. They are inviting, easily comprehended, and wrong. And like the Bohr atom, a compilation of blackletter law in a commercial outline is a ready way to begin learning.

It makes me sad to think that many students may be sheltering themselves from commercial study aids and thus needlessly using a semester’s worth of case reading and class dialectic merely as a means to the end of creating a hard-won outline. I would rather them start with an outline in hand, and then spend the rest of the semester learning what’s wrong with it.

Posted by Eric E. Johnson on March 25, 2008 at 10:28 PM in Life of Law Schools, Teaching Law | Permalink


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[abony holmes] Eric Johnson over at Prawfsblaw made some valid criticisms against law professors who shun commercial outlines. According to him, commercial outlines have some disadvantages (e.g. incomplete information) but they have many benefits, name... [Read More]

Tracked on Mar 27, 2008 2:46:38 PM


Seriously? Why in the world would a prof counsel against using commercial outlines? As law clerk, and now a practicing lawyer a few years out, I go to a hornbook first to understand new areas of the law. I would never, ever, ever turn to a casebook first. Why would a law student approach it in any other fashion? Black letter law is the bones of almost any course, and the casebook just doesn't give it to you. I fully credit commercial outlines with my almost-straight A record my 1L year. I bet most of your top students do as well.

Posted by: Stacey | Mar 28, 2008 1:40:06 PM

I agree! I'm a top 5% student, and for all my classes I read the commercial outline before I read the casebook.

Posted by: Hastings09 | Mar 27, 2008 10:39:06 AM

If I only had faculty members like you when I was in school.

The ideal textbook, in my opinion, would be a combination of commercial outlines and typical casebooks. It would contain:

* A brief (Gilberts-like) overview of the law for each subset of the law. This provides a framework for the law.

* Case law examples that show how judges play with the law. (Footnotes or endnotes that point out some of the differences in straightforward language would be an inestimable bonus.)

* Relevant sections of advocates' briefs in addition to the decision, and/or decisions on the same issue in different circuits.

* As a side note, the textbook should be checked for grammatical errors and design flaws. It is astonishing how many textbooks are written without benefit of spell-check or even (apparently) a cursory second glance.

Alas, particularly for those in their first year, the game of "hide the ball" leads to suboptimal student learning experiences, frustration for faculty, and skews the grading process based upon those who have used the outlines.

By giving students this firm foundation before they come to class, the level of the conversation can be appropriately elevated.

Posted by: doesn't matter | Mar 26, 2008 10:10:16 PM

Wow. A lot of of over-thinking going on here. Many of us have written these kinds of student aids (I have a Nutshell and an Understanding book). Do we think these books lack value? Or similar books by colleagues we respect? Anything that helps students understand is valuable; I have no idea why profs would steer the kids away from study aids. I wish they had been around when I was in law school.

Posted by: bill reynolds | Mar 26, 2008 6:53:04 PM

That's a great way of putting it, Rick. I'll remember that one for future use.

Posted by: James Grimmelmann | Mar 26, 2008 1:59:47 PM

I also recommend certain commercial study aids to my students --- specifically Josh Dressler's Understanding Criminal Law and his Understanding Criminal Procedure. For my criminal law students, I assign specific pages from Dressler as optional reading for each class.

While I generally think that particular study aids may be useful for students, I've found myself having to caution students (1) that these materials may over-simplify the law, and (2) to the extent that what they learn in my class is in conflict with the study aid, the class trumps.

Posted by: C.Hessick | Mar 26, 2008 1:12:34 PM


I think that part of the resistance to commercial outlines is due to a mixture of hubris and fear. The hubris lies in the belief that "only I can teach this right"; and the fear comes from the latent understanding that what we teach isn't always that complicated--and if students figured that out, they'd be angry.

Like any other source, hornbooks and commercial outlines have their place. The key is in helping students to understand what their place is. As a parallel: when I have taught legal research and writing, I teach students that practitioner's manuals can be a valuable source, and we spend time looking at what can be valuable about them--and what can be dangerous. Similarly, contra conventional wisdom, I teach students that wikipedia can be their friend, if they use it right (and their enemy if not).

An outline is the same thing. I will encourage them to pick one up and I will bring it into class to help them understand how the course is organized--and how the answers aren't nearly so clear as the book makes out. In other words, exactly what James does, but possibly more explicitly.

Frankly, in this respect, outlines are no different from, say, the rules of civil procedure. The rule governing notice pleading says one thing; the Supreme Court has said different things at different times; circuit court opinions are still different; and none of this is actually "followed" by practitioners. So we teach the black letter rule; and we teach the court doctrine; but what I want to do is show my students how this really boils down in practice. Adding the commercial outline into the mix seems like a great idea!

Posted by: Hillel Levin | Mar 26, 2008 12:59:44 PM

I wonder if there is a difference between commercial outlines (Sullivan's/Gilbert's) that help/guide students with understanding and briefing individual cases and the sort of hornbooks/treatises (the "Nutshell" series or any of dozens of short treatises) that attempt to overview and synthesize and put what the students are reading into some broader connection and context. The latter seems, viscerally, more acceptable because the students at least are forced to engage the cases and material first, on their own, before consulting the treatise. And I actually make treatises part of the required materials for two of my classes.

Posted by: Howard Wasserman | Mar 26, 2008 8:45:17 AM

I always recommend a "blackletter" hornbook for my students and review the various offerings out there to counsel them against the really bad ones. one strategy for teaching law is to assign a decent outline, choose selected topics where the actual law is much more ambiguous than the outline's version, and assign cases to discuss in class where the students can argue positions against the outlines based on the cases.

I tell my students: "The outlines are aspirationally correct. Like you, clients properly want a straight answer about the law -- about what is 'going to be on the exam.' It just so happens that, because we are so contentious and our politicians and judges have to compromise on their disagreements so much, the law rarely achieves this aspiration or simplicity."

Posted by: Rick Hills | Mar 26, 2008 7:53:22 AM

Well put.

I took my first serious look at a blackletter outline near the end of my first semester. It was very helpful in the way it clearly organized topics and put the different pieces of doctrine in relation to each other. It was equally helpful in confirming for me that I'd actually learned something that semester. On any specific point of law, I already knew more than the outline had to teach. (I could never have made it through administrative law without reading an outline, and I had an outstandingly good ad law class. It's just that judicial review is so complex and so hard to wrap your mind around that I needed all the help I could get.)

I like to steer my students towards some outlines and away from others. They vary in quality and approach; some of them are real gems of clarity and explanation; others are kitchen-sink monsters. I try to recommend at least one book that approaches the subject in a very different way than I do or the casebook does; someone to whom the lectures are baffling might simply have a learning style more closely matched to one of the outlines.

One thing that ironically becomes easier to teach when students look at outlines is the ambiguity of law. Students are faced with multiple, inconsistent statements of what the law is. Seeing outlines disagree, or seeing an outline disagree with what I say in class can be quite effective in getting this point across. Sometimes, I like to finish up discussion of a point in class by telling them that X treatise or Y outline says the opposite of what I've just told them is my interpretation of what a court would do on a given set of facts.

Posted by: James Grimmelmann | Mar 26, 2008 6:57:36 AM

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