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Friday, August 11, 2017

Teaching via treatise

Classes begin at FIU on Monday.*

[*] Although I must confess to wishing we had another two weeks of summer this year. This is unusual for me--I enjoy the semesters more than summers, because I like the rhythm and routine of teaching. But I am in the midst of three projects and believe I could finish all with an extra two weeks before having to balance teaching time. 

I am trying something different in Federal Courts this semester. I am not using a casebook, but instead am working primarily from two treatises (Erwin Chemerinsky's comprehensive Fed Courts treatise and Jim Pfander's Principles treatise), along with the Constitution, statutes, a handful (maybe 10) of recent cases, and some problems. I have been toying with this for a couple years and finally decided to pull the trigger this year. A few thoughts went into this. I sensed that in upper-level classes, many students used the treatises to prep rather than reading the cases.  My class discussion is organized in a treatise format--we do not work through individual cases, but discuss the doctrine at a macro-level whole, so it may be better to have them read and prepare in a similar format. And the author of one of the books convinced me that my spoon-feeding concerns ("the students are not having to figure out the rules of standing for themselves, Chemerinsky and Pfander are telling them the rules") were overstated and that the class discussion can be as rigorous. Plus, as I will remind the students on Monday, they will have more total pages of reading this way, and while it may take less time or require less re-reading, they still must read with care and preparation to engage in the discussion.

If I like how it works, I plan to follow the same format in Civil Rights in the spring, using my treatise (new edition forthcoming).

Posted by Howard Wasserman on August 11, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink


Here's the truth, Marcus. Students understand a basic level of reading cases in their first year doctrinal cases. By the end of the first year, students can extract a rule, spot the issues, the procedural history, and do some analysis or they probably are not going to be able to continue in law school. By the second and third year of law school, students are often working at law firms and advancing their legal careers. Frankly, they don't have the time to read every single case from every single class start to finish, and they have learned that they can get the points they need by reading treatises and engaging in class discussion. They are using cases in the real world at their jobs and they have the skills to read them. What's the point of assigning abstruse judicial reading that gives them no additional benefit over treatises and classroom discussion?

Posted by: Andrew | Aug 12, 2017 7:55:57 AM

What question was left unanswered?

Posted by: Howard Wasserman | Aug 11, 2017 6:06:29 PM

So you answered just one or two of my questions while deleting my post?

Weird editorial strategy (somewhat in keeping with the topic of this post!). Oh, well. (Oops!)

Posted by: Marcus Neff | Aug 11, 2017 6:05:17 PM

I am not sure what is unclear about the class from my descriptions. Instead of reading EPY or Younger and their progeny, students are reading Erwin's and Jim's synthesis of EPY or Younger and their progeny. The difference is reading about the doctrine, rather than reading the doctrine itself. Class then is conducted in the same way as any other law school class, with discussion of the history and evolution of the doctrine and application to problems and questions I ask them.

I am not conducting class without students seeing or being introduced to EPY or anything else. But instead of reading the cases, they read a treatise describing the cases. Not sure what is "weird" about that.

The only question is whether reading EPY or Edelman or other EPY cases has unique importance, compared with reading detailed discussions of the same, as the preparation for the class and class discussions.

Posted by: Howard Wasserman | Aug 11, 2017 5:53:53 PM

When you start using phrases like "having a bee in my bonnet," or with "ehs" and "oh, wells" I don't need or want to hear it. That's not engagement. You had surmised what I believed was unimportant; I simply pointed out that you surmised incorrectly.

Anyway, your prior posts amounted to "I think this is a bad idea, I would teach the class differently, and I'm glad I don't have to take your class." That's not touching a nerve. That's the point that I am not quite sure what we are engaging on anymore.

Posted by: Howard Wasserman | Aug 11, 2017 5:20:20 PM

Why'd you delete my last post, Howard? I said nothing intemperate--only asking you not to assume you know what I think--and you know it. Easier for you to delete than to engage, no doubt. But not quite the move I'd expect from a vocal advocate of the free and robust exchange of ideas, eh?

Guess I touched a nerve. Sorry you're stung. Based on your other posts, though, I'd anticipated a livelier and more open conversation with you. Thought you had thicker skin. Will be sad when you delete this one too.

Posted by: Marcus Neff | Aug 11, 2017 5:02:34 PM

Actually, I don't think it's unimportant, so you surmise incorrectly. The evolution remains part of the discussion because it is covered in the materials I am using. The question is solely whether to get there by having them read the cases or a secondary analysis of the cases and move from there. Again, you seemed to think that EPY was a case that was more essential than any other, hence my point.

Posted by: Howard Wasserman | Aug 11, 2017 2:26:37 PM

Dunno if it's a different order of magnitude. That's for you to decide. If I had students, they'd read the cases.

Why? Well I guess it's partly because I think it's important for them to see precisely what (I surmise) you think is unimportant: the gap between what was said and what courts now do. That space seems interesting and useful and well worth exploring. You disagree. Ok. Just glad my Fed Courts class wasn't taught your way.

Posted by: Marcus Neff | Aug 11, 2017 2:22:31 PM

No. Which, honestly, is not a bad thing, because what EPY says is quite different from what courts have come to say it means. And, as with everything else, the book describes the EPY doctrine in detail.

I remain curious, though: Why is not reading EPY of a different order than not reading Alden v. Maine or Lujan or Clapper or Garble & Sons?

Posted by: Howard Wasserman | Aug 11, 2017 2:17:48 PM

They don't even read Ex Parte Young?

Posted by: Marcus Neff | Aug 11, 2017 2:14:51 PM

The students read the treatise discussion of the doctrine (it runs about 90 pages in Erwin's book), then we talk about the theory, the key historic inflection points, Ex Parte Young and what it wrought, and the overall state of the doctrine. We then work through some new hypos.

It sounds and looks like any other discussion of the 11th Amendment. Except instead of them reading individual cases, they read the description and syntehesis of those cases.

Posted by: Howard Wasserman | Aug 11, 2017 1:28:23 PM

"Are you saying that you're bowing to reality?"

A lawyer never bows to reality, we create the reality that all others have to accept. Remember, the tenth amendment is but a truism and adds nothing to the constitution.

Posted by: No spoon | Aug 11, 2017 1:25:14 PM

So . . . what is it? How does it work?

Posted by: Marcus Neff | Aug 11, 2017 1:24:34 PM

I find especially important Howard's observation: "I generally agree with you about the need to learn to read and manipulate and use cases. Which is why I taught Civil Rights using only raw cases for about the past seven years. What I found was that students were not really doing the work on the cases." I suspect that this is a sound assessment; the studies show that student engagement drops throughout law school, especially in the "doctrinal" courses. I wonder, however, why we should expect that reading treatises instead of reading cases is likely to produce students who are "really doing the work"?

In my view, the task of legal education should be to impart the knowledge. skills, and abilities that entry-level lawyers need. Being able to read cases -- and treatises as well -- are important skills, but entry-level lawyers need much more. Entry-level lawyers need to be able to use these materials to solve the legal problems of their ciients. That is why I have concluded that traditional case method offers rapidly diminishing returns. I instead teach primarily with the problem method, and ask students to use the kinds of materials available to lawyers (e.g., cases, statutes, treatises, etc.) to build legal positions on behalf of clients. I also provide lots of feedback and formative asseessments throughout the semester. A teacher concerned about the quality of daily class preparation and participation needs to find ways to assess preparation and participation if they are to improve. If students do not have an incentive to prepare carefully for and participate productively in class because the quality of their daily preparation and participation does not, at least in any transparent manner visible to them, drive their grade, then we should not be surprised that students will frequently fail to be "really doing the work." And, similarly, if students are not receiving consistent feedback on the quality of their daily preparation and participation, we should not be surprised when it does not improve.

Larry Rosenthal

Posted by: Lawrence Rosenthal | Aug 11, 2017 12:43:18 PM

No, there is more to that. I was simply addressing Paul's point about the benefit to reading whole cases.

The 11th Amendment section is the one piece I know will work, because this has been the one section in which I have not used the casebook the past few years.

Posted by: Howard Wasserman | Aug 11, 2017 12:26:29 PM

I'm not sure I get this. Are you saying that you're bowing to the reality of students not reading the cases, even when you assign them? That's what's behind the turn to treatises? It's not that, say, Seminole Tribe is unimportant to read and to learn. It's that the students just read Jim and Erwin's books anyway, so why bother? That seems strange to me.

But you're right: Nothing special about the 11th Amendment here. Just wondering how those days in class would look without the cases.

Posted by: Marcus Neff | Aug 11, 2017 12:23:31 PM

Paul I: They are reading all of the relevant portions of the cases. Because this is a procedure class, often the procedural discussion forms one small part of a longer opinion. I see no reason to have them read the additional parts. But the assigned parts are full

Paul II: I generally agree with you about the need to learn to read and manipulate and use cases. Which is why I taught Civil Rights using only raw cases for about the past seven years. What I found was that students were not really doing the work on the cases.

Marcus: As with any other section of the class. They read the text of the Constitution and the treatises' discussions of the doctrine and theory and its development and evolution. Not sure why the 11th Amendment presents a special concern.

Posted by: Howard Wasserman | Aug 11, 2017 12:03:34 PM

I guess my reaction is that I *might* feel better about the treatise approach if you assigned the treatise and a number of cases, and/or required reading the whole case or most of it. It might depend on the area of law, but if it's an area of law that requires reading and using/manipulating cases, the students ought to get practice in doing that. As it is, even (or especially) casebooks don't teach that at all well enough. No matter how good the treatise, I would also remind my students at the outset and regularly throughout the semester not to repose absolute trust in any treatise and to remember that treatise writers may have their own priors and agendas.

Posted by: Paul Horwitz | Aug 11, 2017 11:58:52 AM

How does this work with something like the 11th Amendment?

Posted by: Marcus Neff | Aug 11, 2017 11:58:09 AM

I assign the raw cases, but often only assign certain sections of the opinion that matter to our discussion (e.g., just the section discussing whether extraterritoriality is a merits question, not whether the Securities Act was violated).

Posted by: Howard Wasserman | Aug 11, 2017 11:21:29 AM

Of the cases you assign, will they have to read the entire decision(s), or just excerpts?

Posted by: Paul Horwitz | Aug 11, 2017 10:34:37 AM

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