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Wednesday, August 19, 2009

More on casebooks

As I indicated in comments to Jessie's post on casebooks versus assigning full or self-edited cases, this has me thinking.

Suppose I taught Civ Pro as follows:

1) Rules pamphlet 2) Complete (unedited) cases in those areas in which there are major cases: Pleading (Iqbal/Twombley); Summary judgment (Trilogy and a good lower-court case); Erie; Personal Jurisdiction; Subject Matter Jurisdiction 3) Student-level treatise (there are a few good ones--two years ago, when I had only a few days to cover preclusion, I assigned treatise pages rather than material from the casebook) 4) Supplemental materials (sample complaints, sample discovery documents, etc.)

Help em out here, folks (especially Civ Pro geeks): Would this work? What's wrong with this approach? What (if any) are the benefits? What are the negatives?

Posted by Howard Wasserman on August 19, 2009 at 07:13 AM in Howard Wasserman, Teaching Law | Permalink

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Comments

From a different course - I've taught Patent Law this way twice. The students rated the materials the best of the eight times I've taught the course.

Posted by: Joe Miller | Aug 21, 2009 6:26:42 PM

From the standpoint of 34 years' practice under the Fed. Rules (the State rules here are 99.5% identical, and you cite Federal cases and treatises to interpret them), I think it would work nicely. You have a field of law governed by relatively detailed and organized written rules, a large number of which in practice will require no further research.

One exception, where I think employing cases would be vital, is the reach of long-arm jurisdiction. There the issue is entirely case law, and drawing fine distinctions between holdings is often vital.

Posted by: Dave Hardy | Aug 20, 2009 10:27:45 AM

I have gotten some tremendous responses to this post (here and in e-mail) and think I will just write a new post to respond and expand on some things. But a couple quick points here:

Brian, you type better (and longer) on your iPhone than I do on a computer. Also, Michael Allen has a documentary book (Lexis, I believe), based on a Title VII case.

C.E.: Most of the additional statutory material you suggest (REA, key jurisdictional provisions, FRAP, Constitution) are included in the "Rules Pamphlet"--I did not mean to suggest I was only going to give them the unadorned FRCP. Also, I distributed the Iqbal complaint last spring, but had a hard time teaching it; not sure why (too long? too complicated? too unique an area of law?) I agree sample complaints must be real--I am just looking for the right cases.

Posted by: Howard Wasserman | Aug 19, 2009 11:30:49 PM

I hate to break up this CivPro party but it seems, to me at least, that CivPro may be the hardest 1L course to try this un-casebook method. As a Contracts prof, I think it would be much easier to offer unedited cases, the R2K, the UCC Art. 2 and perhaps either a Hornbook or the Examples & Explanations. Thoughts?

Posted by: Contracts Prof | Aug 19, 2009 7:58:17 PM

I'm typing from my iPhone,so I'll keep it short. I tried this in my civ pro class a few years ago, driven primarily by a dissatisfaction with the "notes" approach of the more popular texts and my concern that 1Ls were being trained by the case editing approach to expect third-party guidance. Later, coaching moot court teams, I found students truly struggling to handle unedited cases (headnotes became their fallback), with a tendency to seek favorable sound bites while largely ignoring the details of context. The big push-back from students? The lack of a casebook made them uncomfortable -- it was like a missing security blanket. Perhaps I should have more carefully considered supplemental materials. At any rate, I would love to go back to this approach and your list (with some of the suggested additions) seems like a great foundation. My one big question is this: Im having trouble tracking down a full (REAL) case file, including the unfiled discovery materials. "a civil action" is a bit dated, I'm not a big fan of the Paula jones collection, and I haven't found anything else. I guess that I really don't want all the commentary, etc. that comes with these collections. Any thoughts?

Posted by: Brian Holland | Aug 19, 2009 12:58:34 PM

I have a few suggested additions to the list:
(5) The Rules Enabling Act and the relevant parts of Title 28 (e.g., §§ 1367, 1441-42, and 1447)
(6) At least one or two extracts from Supreme Court briefs on jurisdictional issues -- I'm thinking, in particular, of UMW v. Gibbs -- to show not just the theory and conclusion, but the pathway between them
(7) The FRAP, for (at minimum) awareness of how different rulesets interact

My major piece of advice, though, is that the "sample" complaints, etc. need to be real -- not just created by the professor for the coursepack. For example, the actual complaints in Twombley and Iqbal themselves raise further civ-pro questions (such as the status of a private attorney general, and whether that context makes a difference to the opinion) that are both worthy of classroom discussion and important to a lawyer in practice. I think this might be particularly important when dealing with the icky question of personal jurisdiction... but the real complaints would be awfully hard to come by, since most of those cases are quite old!

Again, this is from my hard-science background. One of the major weaknesses that I see in law (teaching, publishing, and practice) is a stubborn inability to acknowledge the primacy of data in determining the validity of a theory. Data that is not directly linked to the theory being explained/hypothesis being tested is awfully advanced stuff... and requires a thorough understanding of the underlying theory in the first place, which lawyers (and 1Ls in particular) can't be expected to have.

Posted by: C.E. Petit | Aug 19, 2009 12:11:48 PM

My first-year Civ Pro class was pretty much as Professor Wasserman proposes. The assigned materials were:
1. Fed. R. Civ. P. booklet.
2. A range of cases (big SCOTUS cases and exemplary federal district court and state opinions), mostly unedited.
3. Some excerpts from the committee notes.
4. Glannon.

I think it worked well.

Posted by: Managing Board | Aug 19, 2009 10:24:49 AM

Hi Howard. Thanks for this thoughtful addition. Perhaps this is better discussed in a subject-specific way, as you do. As a matter of fact, what I had in mind for a casebook-less course is basically what you propose here. If using these materials, I would probably also feel compelled to post study questions along with each assignment as well for the students (to guide their reading and replace somewhat the notes in the casebook). I think there would be many advantages for the students - including lower cost (possibly, depending on the price of the student treatise); learning early on to read unedited cases and figure out how to get what's important from them; getting a broader view of civil procedure (from not limiting them to reading written, mostly appellate opinions); and as I suggest below, taking some responsibility for their own learning.

I think there are a lot of things going on here that make me question the casebook approach, some of which have been raised by the commenters to my post. Do we still think the Langdellian case method is always the best one? Is it necessarily the best one for a class like civil procedure, which should have at least some "nuts-and-bolts" aspect to it? Should we rely on casebooks notes/editorial content or our own teaching to guide students toward what's important about the material?

Fundamentally, though, I think there is another problem here too, which is that we are loath to treat our first-year students as adults who have to take responsibility for their own learning. I am aware that, as one of the commenters to my post pointed out, medical schools, for example, require students to buy a lot of textbooks. But my understanding, from my husband's med school experience, is that profs primarily lectured in class and expected students to do their own self-directed reading from the textbooks to supplement or clarify what was told to them in class. (This may have just been his experience - I'm not sure if all med schools work this way.) It seems to me that the earlier we can push student toward figuring out on their own how to learn the law, the better. After all, when they become "real" lawyers, this is what they will have to do -- rather than simply digest 20- or 30-page overly condensed chunks of bare-bones factual summary + holding + rationale + explanatory notes, which they then incorporate into some giant outline that they will never use again after the exam is over.

Posted by: Jessie Hill | Aug 19, 2009 9:49:25 AM

I don't think the question, "What sort of materials should I assign?" makes sense in the abstract. They come as part of a package; the other part is how you teach from them in class. A few unedited Supreme Court procedure cases could be a nightmare or very informative, depending on what the professor does. Could you say more about how you would teach from this un-casebook?

Posted by: James Grimmelmann | Aug 19, 2009 8:12:53 AM

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