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Saturday, August 15, 2009

Is Using a Casebook Ever Justified?

                I have been teaching Civil Procedure for about five years now, and every time I begin prepping again, I am overcome by a distinct sense of discomfort with my casebook. Of course, I have looked at, and considered using, various civil procedure casebooks (and believe me, they are legion). I am currently using a different casebook from the one I first taught with, and although neither casebook that I’ve used can be said to be notably defective on its own terms, I still get a feeling that is probably familiar to many of us – the feeling that we wish the book devoted a little more coverage to this, and maybe a little less to that… that the editing of one case were a little more generous, or a little less so… that it took a different approach to a particular subject... Often, I cast about for supplementary materials – perhaps a novel, combined with a “documentary companion” – and then usually give up, as the amount of material becomes far too voluminous and unwieldy for a one-semester, four-credit course.

                Of course, these are common sentiments and do not necessarily undermine the value of using casebooks in general. So why the provocative title of this post? More after the jump….

                I have started to think that this discomfort with the books we are using is precisely an indication that we are not sufficiently willing to “think outside the box” with respect to course materials – or perhaps more cynically, the we are not willing to do the work that it would take to compile an original set of materials that would allow us to teach the course exactly as we would like. But maybe this is exactly what we all should do. I am unaware of any other graduate-level field of study in which faculty are so dependent on textbooks for their teaching (with teachers’ manuals, no less! What is this, elementary school?). And if we don’t like the exact selection of cases in the case book, or how those cases are edited, or if we wish to add supplementary material, doesn’t it just make more sense to put our own materials together, edit our own cases, and provide our own supplemental articles, documents, etc.? As individuals with the title of “professor,” shouldn’t we be capable of doing this, and perhaps even feel obligated to do so – to put some thought into how our course is assembled and to put our own “spin” on it? This approach certainly would save our students a chunk of change, at least in most courses….

                Are we simply being lazy? Believe me, I can see how difficult it would be to put together a civil procedure course from scratch, especially for someone like me who does not write in the field and does not consider herself a specialist. But is the level of difficulty an excuse for poor pedagogy, especially for someone who, like me, has been teaching the course long enough to have an idea of what I’d like to emphasize and how I’d like to go about it? Of course, we could all still consult the casebooks to assist in our course prep, though I am fairly sure this is not the use that their publishers (or authors) would intend for those complimentary copies.

                I suppose if no one used casebooks, they would stop being written, and then something might be lost. The wise folks who place their accumulated knowledge and expertise into those casebooks might not bother to put similar energy into treatises or other such volumes that would not hold out the possibility of substantial royalties from wide law school distribution. Then we would lose a valuable source of reference material, if you will. And I will admit that the Civil Procedure casebooks I have used have been enormously helpful for prioritizing, synthesizing, and all around just getting my bearings as a new prawf. But I am not sure that I can continue to justify using them on any basis except, of course, my need to find time to write something besides powerpoints and lecture notes …. Well, then again, maybe I'll assemble my own materials next year....

Posted by Jessie Hill on August 15, 2009 at 12:09 PM | Permalink


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Jessie: I have no plans for dropping my 1L Torts book (except for another casebook). But I have been leaning very heavily in favor of dropping casebooks in all my upper-level classes (Health Law: Liability, Health Law: Finance & Regulation, End-of-Life Decisions). Indeed, I dropped a casebook from my Bioethics class after my 1st year of teaching.

My plan to move to self-chosen, self-posted cases and materials (including PACER materials) was delayed due to both of the leading casebooks offering new editions, as well as to my respect for the collective wisdom of the authors (who may know better what materials "teach" best). Still, my TWEN sites are filling-up with lots of material that I add to or substitute for casebook material. As that volume reaches a critical point, I'll really have to drop the casebook else the students wonder why I assigned it in the first place.

Posted by: Thaddeus Pope | Aug 18, 2009 10:21:48 PM

What C.E. Petit said. I would also note that it is surprising how many professors who teach from case law are not even familiar with PACER.

Posted by: alkali | Aug 17, 2009 3:25:37 PM

I'll abuse comments again to hawk the website I made for creating textbooks and supplements using materials in an open commons. For each subject, people upload cases, problems, connecting materials, articles, etc. You assemble a book like you'd create a playlist in iTunes. And you can copy and then re-arrange your copy of others' books. I'm using it for my property casebook this year. Still in the early days, but I'm hopeful others will check it out: http://hydratext.org/

Posted by: Christian Turner | Aug 17, 2009 2:06:37 PM

I think the problem is less with "casebooks" than with "lack of data." (Of course, I'm coming from a hard-science background in saying this.)

For example, consider an issue that is currently in the mind of civ pro geeks like me: What really is required of a pleading under Fed. R. Civ. P. 8 and 9? And how do we tell? None of the casebooks or even the opinions include the text of the complaints in Conley, or Twombley, or Iqbal. This is the equivalent of a college physics book trying to explain the motion for a pendulum without ever showing a diagram of a pendulum... or, in the laboratory, having the students derive various other meaningful quantities from behavior of an actual pendulum (an experiment that is part of probably every calculus-based first-year physics class).

Were I Emperor of Legal Opinion Writing, I would demand that judges always exactly quote allegations when considering whether those allegations are sufficient under whatever pleading standard applies. Failing that, with PACER it's not too hard to pull them for student supplements... at least for the more-recent cases. Either way, though, it seems to me that casebook authors have responsibility to do more than merely edit cases; they need to ground those cases in the actual data, not merely post hoc doctrine built upon 20-20 hindsight interpretations of those cases.

Posted by: C.E. Petit | Aug 17, 2009 12:55:03 PM

I've put together my own casebook on Internet Law -- including not only edited cases and articles, but notes and connecting material. I did it originally because there was nothing out there that taught the subject quite the way I wanted to. But it was a *huge* amount of work, that took me several years to compile completely. (Also, the fact that it's Internet Law means I have to revise it every year. Doh!) There's no way I could do this for all 4 of my classes, or for subjects I know even slightly less well than Internet Law.

Posted by: Bruce Boyden | Aug 16, 2009 11:08:06 PM

Jeff: I teach Evidence precisely how Friedenthal did: A treatise (which the students do not use as much as they should--I might switch treatises), a rules pamphlet, and a set of problems based on two elaborate fictional cases. Unfortunately, I am not sure this works for civ pro, especially for the constitutional half that looks like any other law school class.

Jessie: This post has me thinking. The real value-added from casebooks is not so much the editing of cases (although that saves us time doing it ourselves), but the questions, notes, comments, and note cases, which provide broader context for individual main cases and give a picture of the overall doctrinal and theoretical landscape. I fear we lose that teaching solely by providing students with main cases only (in their entirety or self-edited). Now maybe we could get this by combining cases with a treatise (the Fed Courts book I use combines elements of both very well). A broad change in that direction might inspire authors to move their energies and expertise from casebooks to treatises.

I do think that I am more likely to do this in a course in which I write substantially than one in which I don't.

Posted by: Howard Wasserman | Aug 16, 2009 5:09:59 PM

I think I'd prefer profs to just assign cases that we could get off lexis or westlaw. we have free access, and it would teach us to pull out the nuggets that are important, a skill you have to learn in practice anyway. especially with a little guidance, such as "don't worry about the stuff in roman numeral II" or "don't worry about the discussion of X issue" students would do just fine, and they'd save a huge pile of money. This would mean the profs would have to do a lot more work with the non-case supplements like problems, and probably some students would do a lot more reading than they have to, but I think it would be the way to go.

I had one prof who didn't even use the problems or notes in the case book, only the cases. I remember thinking "why in the hell did I pay $150 for this book?" And he'd complain about the way the cases were edited! Just assign the cases, I wanted to scream! Very frustrating experience.

Posted by: sehi | Aug 16, 2009 11:14:46 AM

"Any other graduate level field of study"?

That might be true for Ph.D. programs, but in the closest analogs I can think of in terms of professional training, business and medicine, casebooks or textbooks are used all the time, and while I don't know for sure, I'll bet dimes to dollars there are teachers manuals. I've used portions of business school texts (e.g. Josh Lerner's Venture Capital and Private Equity book, and I just looked at all the text books my son, a first year med student had to buy!

The real issue, it seems to me, is whether learning civ pro or evidence, for example, out of a book that explicates the law in the traditional Langdellian manner, is effective pedagogy. When I took evidence from Jack Friedenthal thirty-something years ago, he assigned McCormick on Evidence (the treatise) as the only text, and taught the entire course on a series of story problems.

Posted by: Jeff Lipshaw | Aug 16, 2009 10:07:36 AM

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