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Monday, April 05, 2010

When is a Case "Casebook Worthy"? [A Cautionary Tale]

I'm in the midst of casebook angst, and probably one shouldn't blog in this state, but here goes.  I've been valiantly and perhaps quixotically trying to update the defamation chapter of my Mass Media Law casebook (co-authored with Franklin, Anderson, and (soon) Krotoszynski, Jr.) while cutting it by at least 30 pages.  I thought I had discovered the ultimate "casebook-worthy" case on the "fair and accurate report privilege" to update the chapter-- Howell v. Enterprise Publishing Co., L.L.C., decided by the Supreme Judicial Court of Massachusetts on January 7, 2010--but I'm beginning to think I was wrong.

Here's what makes the case initially appear to be casebook worthy.  It has a beautiful, treatise-like consideration of the fair and accurate report privilege as it applies in defamation law.  It is from the high court of an important state.  It hearkens back to and quotes an 1884 case written by Justice (then-Judge) Holmes. It cites and quotes the Restatement and an important libel treatise by Judge Robert Sack.  It clearly and concisely states the major rationales for the privilege.  It deals with (and therefore allows the professor to raise in class) several important, controversial issues regarding application of the privilege:  Can a publisher take advantage of the privilege when he relies on an anonymous source?  Must the publisher give attribution to the source to qualify for the privilege?  Should the privilege apply when the "official" action or proceeding is closed to the public and the publisher obtains the information from an unauthorized leak?  The case also discusses core doctrinal issues that would otherwise have to be addressed in notes.  For example, it discusses the fact that the fair and accurate report privilege can be lost through abuse, and it discusses what counts as "fair and accurate" reporting for purposes of the privilege.  It also has a great and very persuasive dissent.  It sounds wonderful, doesn't it?  

It is, in fact, absolutely wonderful until you try to reduce its down to the four or five pages required to fit within the confines of a casebook.   After hours and hours and hours of work, I've managed to reduce the case to 10 pages.  The facts of the case dealt with 11 different newspaper articles published by the Enterprise.  The facts of the case alone were at least 10 pages.  I've condensed and summarized as much as I thought I could get away with without destroying the sense of the case, but it is still TOO LONG.  And the discussion section of the case includes citations to every case on the fair and accurate report privilege ever decided (or so it seems to me at this point).  Even with dramatic cutting and ellipses, the discussion section is still TOO LONG.   Having invested what I now consider to be way too much time into editing one case, I have to ask myself whether this case was truly casebook worthy after all.  On the other hand, having invested this much time, I'm now vested in making it work.    




Posted by Lyrissa Lidsky on April 5, 2010 at 10:20 PM in Teaching Law | Permalink

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Comments

I can't really tell without reading it, but it sounds to me like the problem is that the case is an embarrassment of riches -- it does a lot of things that you'd like to do if you had infinite time and/or space, and does them well. So really it sounds like what needs to happen is for some of the stuff you really like to get cut -- i.e., to "kill your darlings," so to speak. Maybe keep only the rationales for the privilege, or maybe only one application, but not both.

Posted by: Bruce Boyden | Apr 6, 2010 4:33:12 PM

While I don't have experience in writing a casebook, I hope to soon (anyone want to work on a quantitative methods casebook?), and it seems like James has the best answer - point students toward the case in a note, but let them decide how much engagement they want to put into it.

Posted by: Matthew Reid Krell | Apr 6, 2010 9:22:51 AM

There are two features that would make it difficult to teach, and the question is whether they can be corrected through editing. One is that the facts are too long and complicated, probably needlessly so. The other is that in the discussion section, the court indulges in overkill, citing too many cases to justify its conclusions. In its basic outline, though, the discussion section is highly lucid (and meets many of your criteria). It is just a question of whether it can be stripped down to its bones without losing something and whether it is worth the effort to do so. There are some beautiful paragraphs in the opinion, but at some point you just can't engage in so much editing that you are reconstructing the opinion.

Posted by: lyrissa | Apr 5, 2010 11:41:01 PM

When I'm editing materials for class, here are actors I tend to look for:


Memorable material facts
A clearly posed legal issue (unless the difficult exercise of categorization is the point)
Generally good writing, with an emphasis on concision
Good organization
Awareness of the standard of review, procedural posture, and other contextual procedural matters
Correct statement and application of blackletter law (if there's a "correct" doctrine it's important to know)
Memorable or famous metaphors
Hard facts, a badly phrased statute, a conflict between lines of cases, or another similar source of tension
A good central passage that rewards close reading (e.g. where the court makes a critical but unwarranted logical leap, or pins down the issue in a pithy syllogism)
Representativeness of the general run of cases in its category, both in terms of factual similarities and in terms of legal resolution of them
Importance of the issue(s) it addresses
Importance (in the sense of being a "leading case")
Historical importance

Posted by: James Grimmelmann | Apr 5, 2010 11:26:33 PM

How would you advise professors using your casebook to treat the case in class? It sounds unteachable. The complex facts will be hard for professors to recap and even harder for the students. The exhaustive discussion will tend to lead to a dry call-and-response dialogue with students. The time spent running the many issues to ground will leave students feeling bored at wringing so many details much out of one case and make them start conflating issues in their notes and memories.

I'm having trouble envisioning a productive class session from using it as a principal case. Rather, I'd mention it in a note, saying the court, in a carefully researched opinion, and over a strong dissent, clearly works through issues X, Y, and Z. Or consider making it a problem. Simplify the facts down to two articles, then let students discover on their own the issues (such as abuse of the privilege) that the doctrinal structure of the area has to confront, and argue about what the tests ought to be. In short, it's a great case to expose students to, but (like you) I'm skeptical about teaching it straight.

Posted by: James Grimmelmann | Apr 5, 2010 10:53:50 PM

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