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Tuesday, September 07, 2010
The Value of the Casebook Method?
When I was in my first year of law school, I remember periodically returning to the same thought about the way law school classes were taught: "This is so inefficient." I was actually enjoying most of my classes, but still, the basic approach of having us read cases on our own and then spend class time answering questions about them seemed backward to me. Why wasn't the professor starting out by explaining the basic principles to us, and then having us read and discuss the cases to see how they illustrated (or deviated from) them?
So I was fascinated to read Prawfs-blogger Eric Johnson's "A Populist Manifesto for Learning the Law" in the current Journal of Legal Education. Eric argues that "law professors should cease to regard as sacrosanct the process of learning law through the reading of judicial opinions." What's more, he spends the first few days of his Torts and IP classes providing an overview (through lectures) of the blackletter law. He then has the class start over, working through the doctrine again with a casebook. This is exactly the model I envisioned during my 1L year.
What gives me pause, though, is the epiphany (or at least it seemed that way to me at the time!) that I remember having during the summer after my 1L year, when I was interning for a federal judge. I was thrown into working on lots of different cases, including ones in legal areas that I knew nothing about. I often ended up teaching myself the relevant law -- by reading judicial decisions. That summer gave me a new appreciation for the casebook method and the experience I'd gotten in having to make sense of cases on my own. I had similar experiences throughout my time in practice. So now, as a law professor, I find myself sticking much more closely to the model that I'd originally questioned as a student. But I do spend more time in class answering questions and providing end-of-class summaries than I remember my professors doing. I think Eric is right that many students think law professors "hide the ball," and that is something I really want to avoid.
What about the rest of you--how do you balance the competing considerations of having your students learn to teach themselves the law, while not having them feel like you're hiding the ball?
Posted by Emily Gold Waldman on September 7, 2010 at 01:47 PM | Permalink
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Comments
NewLawProf writes: ". . . I think what's being suggested is that if a prof assigns a quality hornbook for each class session's reading, students will be better equipped to understand the black-letter law, and thus more able to analyze problems and "think like a lawyer."
This begs the question of whether students who already come unprepared will prepare by reading the assigned hornbook. Nevertheless, I do think the recommending a preferred hornbook would help those students who do wish to prepare.
Multiple professors I took did that sort of thing. My CivPro professor strongly recommended Glannon's E&E and it helped many of my friends. I also had a professor who had a required text (the casebook) and a list of three recommended texts. The recommended texts were various hornbooks the professor thought were the best. He even listed recommended reading from one hornbook alongside the required reading for each class on the syllabus.
I do believe a grounding in black letter law is important. Perhaps it will help in understanding cases that are being read. (Although, as I remember my first year, when I was lost I was lost regardless of my black letter understanding.)
Even so, I doubt there is a cure for unprepared students. They'll always exist. (And I imagine many of us have been one from time to time.)
Posted by: John Nelson | Sep 8, 2010 4:46:37 PM
"Do students not independently buy hornbooks?"
They do, but unfortunately a lot of times they buy Gilberts or Emmanuel's instead of better quality hornbooks, like Dressler's "Understanding Criminal Law" or Glannon's Civ Pro E&E.
"Do they not independently read up on the black-letter law before class?"
Some do; many don't. Many use hornbooks as exam prep, when it's far too late, rather than reading this material to prepare for class. Instead, I think what's being suggested is that if a prof assigns a quality hornbook for each class session's reading, students will be better equipped to understand the black-letter law, and thus more able to analyze problems and "think like a lawyer."
Posted by: NewLawProf | Sep 8, 2010 3:41:42 PM
Do students not independently buy hornbooks? Do they not independently read up on the black-letter law before class?
Many of my colleagues in law school bought supplements. A few, in bouts of worry and nervousness, bought each supplement available for a topic.
The people who did not prepare before class by making sure they had at least a fleeting grasp of the black letter law tended to be the people who did not prepare for class at all.
A question for professors: Is the concern that class discussions will not be as fruitful if students are off on the black letter law? I could see this being a problem. I remember a number of times when class discussions were hijacked and led astray out of confusion.
As for Prof. Johnson's article, his conclusion troubles me. He appears to indict law professors as people who 'hide the ball,' to put it politely. Most law professors I have met do their best to do exactly the opposite. The discussions on this website are great examples.
Prof. Johnson's article appears to favor black letter law learning over the reasoning and argumentation taught through the Socratic Method. I agree with the poster and other commenters; the importance of learning to 'think like a lawyer' should not be under-rated, as I believe Prof. Johnson has done.
The real question, then, is whether or not there are ways to improve or hasten a student's ability to reach that 'thinking like a lawyer' point more quickly?
Posted by: John Nelson | Sep 8, 2010 2:53:41 PM
I read Eric's article this weekend, and I enjoyed it very much. Like Emily, though, I was concerned that the structure Eric proposes would not help teach students how to teach themselves the law. I had a post-1L experience like Emily's in which I had that Daniel-san/ Mr. Miyagi epiphany that toiling in cases all year had actually taught me a separate skill.
The two methods Eric noted that stood out to me were: (1) spending the first few (5?) classes lecturing on black letter law, then going through the cases in the rest of the semester; and (2) assigning a hornbook as mandatory reading. I don't see how this second method would undermine students' ability to learn how to teach themselves the law, as they could easily teach themselves the law while in practice via sources similar to hornbooks.
The black-letter lecture method, though, seems to be the problem. Eric's thesis that such lectures prepare students for the case reading makes good sense, and I agree that students would absorb the deeper nuances of the cases with this contextual preparation. But, it really would deprive them of the experience of inductive reasoning.
At the same time, I don't know whether Orin's approach is quite the perfect solution to Eric's concerns. Because students read the cases without the doctrinal pre-lectures, they start out at that "clueless" level Eric discussed in his article.
So, I'm thinking of the following approach: (1) ending each class with a 10 minute lecture on the BASICS of the doctrine for the next readings/ class; (2) assigning both casebook and hornbook reading for the next class; (3) starting class with a few, very brief clicker-based questions to test students' comprehension; (4) continuing into a light-Socratic/ open discussion of the doctrinal nuances and the cases; then (5) ending class with the 10 minute lecture on the next subject.
To me, that seems to balance the two competing objectives of priming students for the reading/ avoiding hiding the ball vs. retaining the inculcation of inductive reasoning skills.
Posted by: NewLawProf | Sep 8, 2010 1:49:47 PM
The casebook method significantly edits its cases to focus upon the course for which a casebook is designed, compartmentalizing for that course. At some point in the law school educational process the student should become aware that multiple issues may be involved with a case that cover several courses of study, as that is what an attorney faces in practice. How well do law schools address this? If not properly addressed, the young attorney may end up compartmentalizing issues along the lines of law school courses. Perhaps a course should be offered in 3L to consider major opinions with multiple issues to avoid such compartmentalizing. (Maybe such a course is now being offered; but I don't think there were such courses back in the early 1950s when I was in law school.)
Posted by: Shag from Brookline | Sep 8, 2010 7:01:27 AM
I often begin classes with a 5 minute overview of the doctrine; followed by a Socratic discussion of the cases; followed by an open discussion of the cases; followed by a brief lecture about the lesson of the cases that tries to tie together the doctrine and cases. In my view, this has the benefit of (a) helping students learn the big picture without them getting lost, (b) permitting a high-level discussion of the law through the cases, and (c) roughly replicating the mixture of treatise-learning and case-learning that often occurs in learning a new area as a lawyer (at least based on the practice that I had as a lawyer).
Posted by: Orin Kerr | Sep 7, 2010 4:20:53 PM
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