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Sunday, January 24, 2010

On Casebooks

Writing a good casebook is a thankless task.  If a casebook is well constructed, the professor using it will never give much thought to its construction.  The organizational choices made by the casebook author/editors will seem obvious, the notes will seem insightful but unobtrusive, and the editing of the cases will be invisible.  If a casebook is poorly constructed, however, the professor will curse the name of the author/editors every day all semester.

I've had a lot of occasions to curse.  Since I started teaching, I've used fifteen different casebooks (not counting new editions): four in Professional Responsibility, three main and three supplemental in Torts, and one each in Mass Media Law, Advanced Torts, Constitutional Law, Jurisprudence, and Labor Law. 

I'm thinking about this topic now because my co-authors and I are in the process of revamping/revising/rethinking a venerable Mass Media Law casebook for its eighth edition.  There are numerous issues involved, though two in particular are plaguing me. 

First, this casebook was venerable before I came on board in the seventh edition, but, like all casebooks, it has put on bulk over the years and needs to slim down.  The question is how to slim it down without losing the underlying structure and coherence that those who currently use it appreciate.  [I don't want users to say "it sure was a great casebook before they brought that Lidsky on board as a co-author."]  I have been assigned the task of slimming the chapter on defamation from 110 pages to something more like 60 or 70.  I find this task particularly challenging because I love defamation law, every little complexity and technicality and nuance of it.  But defamation is nowhere near as important to media lawyers as it once was, and it is self-indulgent to spend three weeks of a course on defamation.    So I'm trying to look with fresh eyes to decide what is absolutely essential.  This is not easy.

A second issue is that the entire media industry is in upheaval.  How do you reflect this seismic shift in the industry in a casebook, when it is not fully reflected in the law yet?  You want the book to be modern and current, but you don't want it to be obsolete a year from now.   In essence, you get cast in the role of prophesying how the field will change in the next five years, when even the answer to the most basic question--which actors count as "press" or "media" for legal purposes?-- is in doubt.  

While grappling with streamlining the casebook and scrying the future, I'm also trying to be mindful of qualities I hate in casebooks.  The author of my Advanced Torts casebook clearly has an encyclopedic knowledge of his subject matter and the coverage area is great, but he never met a detail he didn't like.  I love the problems generated by the authors of one of the Professional Responsibility casebooks, but giving the students ten snippets of cases to try to answer them seems like asking a lot.  The beauty of using the book is that it makes the professor seem really, really smart, but it also makes the students completely dependent on the professor to make sense of things.  One of my Torts casebooks has the opposite problem.  It makes things look so totally lucid and clear that the students always believe you're making things harder than they need to be.  It also makes the exam a great shock.  

I hate casebooks that have long series of cases edited to half a page or less.  I hate it when authors eliminate the cases cited in a constitutional case.  If the Justices cited Miami Herald v. Tornillo, I want to know about it because Tornillo is shorthand for a whole body of principles.  The students may not appreciate that fact, but I do, and they will never appreciate it if they aren't exposed to it now and repeatedly.  I also hate casebooks that eliminate the section headings from constitutional cases. I hate casebooks that cite cases in notes without explaining why they're cited.  I hate casebooks that have more than about six or seven notes per case.  I could go on . . .

Posted by Lyrissa Lidsky on January 24, 2010 at 12:30 PM | Permalink


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If a practioner in the field would know the case by name it should be there, even if highly abridged, because it is a classic. All other cases are optional. One of my criminal procedure texts, for example, omitted almost everything but background notes and the landmark U.S. Supreme Court decisions and it was plenty.

After law school, one of the main reasons I open a case book is to find a case that supports a well established proposition that isn't litigated much because it is uncontroversial (e.g. a Last Will and Testament does not govern when a non-probate transfer is made). Including those cases in notes is helpful.

A well reasoned recent case that cites most of the important but not classic cases on a doctrine is a good substitute for including the many cases that it cites.

Law school teaches issue spotting. If a case raises an issue, it isn't necessary to include every case that resolves that issue.

Non-case law background material and exposition (e.g. short histories of the industry and statistics like statistics on the decline of the afternoon newspaper or brief outlines of the era of partisan journalism) can be very helpful.

Posted by: ohwilleke | Jan 25, 2010 9:45:29 PM

Hi Lyrissa, I've taught Media Law out of your venerable casebook six times now (since the 6th edition so I can testify that you've only improved it!). I actually find myself wanting a bit more -- I supplement it with some student press cases, for example. I also like slightly longer coverage of cases and fewer notes. I guess this only goes to show you can please some of the people all of the time ...

Posted by: Sonja West | Jan 25, 2010 4:51:57 PM

I have two specific comments on casebooks in general... and on the stated project in particular. No doubt I will be pilloried for both!

(1) Casebooks that fail to disclose author/editor biases based upon the limited experience of the authors/editors, and then claim that those biases are per force the natural state of the law, drive me nuts.
* A Certain Copyright Casebook fails to disclose that none of the author/editors have done significant work for the actual, pen-to-paper/brush-to-canvas/fingers-to-frets creators of copyrightable works; instead, all of their litigation and transactional experience has been for media/publishing/exploitation entities. That limiting perspective results in copyright students who never even get the opportunity to discuss some increasingly common issues (just ask Captain America and Winnie-the-Pooh...) without independent prompting by the professor.
* A Certain Civil Procedure Casebook reflects -- perhaps even originated! -- the myth that federal courts are pro-defendant to such an extent that the students must be left wondering why and how any cases even get to the Supreme Court for review. This is primarily because the limited experience of each of the author/editors was as insurance defense counsel at BigLaw LP... and appears most obviously in the condescending, supercilious, dismissive post-case notes that trash the efforts of the plaintiff's bar.
Suggested solution: Include a broader spectrum of experience among casebook author/editors. For example, at least consult with some plaintiff's lawyers in defamation cases if your experience is primarily as defense counsel (or vice versa!); it's not just perspective, but even choice of the kinds of authority.

(2) At least in the supplemental materials, include some of the pleadings. If you were doing the section on the 12(b)(6) standard, for example, don't just take the various judges' (or, too commonly, their law clerks') word for what the complaints say; include the relevant parts of the Conley, Twombley, and Iqbal complaints. Similarly, for the defamation material, don't just include the description of the ad in Sullivan: Reprint the bloody thing.

Too often -- particularly in anything even marginally related to the arts -- casebooks rely upon second-order descriptions of the facts. Sometimes these are by the casebook author/editors; more often, they are the judicial glosses of the facts stated in the opinions. It's one thing to try to judge whether a third-party description of what was published (and how) constitutes defamation; it's another thing entirely to remove those particular lenses from the situation and view the proceedings through the eyes of a participant... since that's what the students are going to be. I would never tell basic chemistry students to take my word for what happens when dropping metallic sodium into distilled water inside a closed container; there must be at least a classroom demonstration, and preferably a (safe) laboratory exercise. Unless, that is, we want law students to be competent to debate how many angels can dance on the head of a pin without ever measuring the size of the pinhead!

Posted by: C.E. Petit | Jan 25, 2010 1:34:22 PM

Re: Orin's point, here's one thing that I find myself repeating in several of my classes: "Here's the basic rule. The basic rule has easy cases on both sides: easy cases where it requires outcome X, and easy cases where it requires outcome not-X. Of course, all of the cases in the readings for today are the hard cases in the middle." Naturally those are also the interesting cases, but too many casebooks I think confine the clear rules to notes--or worse, don't even mention them--rather than put them up front.

Posted by: Bruce Boyden | Jan 24, 2010 11:58:17 PM

I hate casebooks that have long string citations in the notes. Students don't have time to look them all up and the actual citation is almost meaningless, it's the parenthetical that elucidates a point.

Posted by: Anon | Jan 24, 2010 11:40:58 PM

Don't hate the casebooks, hate the game.

Seriously, though, I think the key is to reduce the number of issues you cover, and to include whatever level of complexity is required to really understand the issues at a level that is possible for a student in a one-semester course.

To that end, I think there are two major strategies that work for casebooks in a lot of law school subjects. First, don't be afraid to begin a chapter or section with a clear and concise summary of the doctrine to cover the basic issues and then get students ready to deal with more complicated ones. Second, try to edit cases down to about 2-4 pages in a way that captures the real essence of the case, and to then have a few pages of notes that tell students what they need to know about *that* real essence of the case. I think these two strategies lead to a more concise, less sprawling, and better organized chapter that covers big issues in a sophisticated way.

Posted by: Orin Kerr | Jan 24, 2010 6:48:19 PM

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