[I misunderstood/mis-characterized Orin's position in the post below - my apologies for that - as Orin points out in a later posting. Strike out any references below to Orin's advocacy for the "treatise approach" - I was thinking of deleting my posting in its entirety, but have decided not to; I think, though I won't belabor it here, that there is still a rather important and interesting disagreement between us about the nature of legal doctrine, but I can address that better some other time.]
Orin and I have been having an interesting little discussion about the teaching of law, and the use of edited versus unedited cases in classes (see the "Related Posts" below for a recap). Briefly, my position is that law students need much more exposure, in their "doctrinal" classes, to raw, unedited case material than they get, and Orin is not convinced.
In his last posting, he usefully broadened out the question, and he said something that truly astounded me:
"I think the question of edited versus unedited cases is really a subset of the broader question of how classroom materials should balance two competing needs: (1) the need for students to build and master general legal skills, and (2) the need for students to learn the specific subject matter of the course. Imagine a course built around either extreme. In a course built around need (1), the professor might give the students a tall stack of Westlaw printouts and tell them to go through the 30 or so cases and then find and master the 3 or 4 most relevant to the topic of the next day's class. In a course built around need (2), the professor would assign a treatise excerpt and would assign no cases at all."
This is, I think, the source of our disagreement, and it looks like it may go pretty deep: I would never assign treatise excerpts alone, even in a class built around "the need for students to learn the specific subject matter." And I'm amazed that Orin would.
I'd never teach a class with treatises alone for several reasons. Most fundamentally, treatises (and other secondary material) are not, and cannot be, "the law," and therefore whatever it is that students are studying in that class, it is not "the law." I'm not trying to be pedantic or over-literal, but you're not studying copyright law when you read the Nimmer treatise, you're studying Nimmer's views on copyright law — which are very important, very insightful, very helpful, very comprehensive, but they're not copyright law. It's not a trivial point — in our system, commentators and law professors are not authorized law-makers. Of course they play a profoundly important role — but their work product is not law. So studying only their work product and you're not studying the law.
Furthermore, pedagogically speaking, Orin's method strikes me as ill-advised. "Give a man a fish . . ." Students who encounter only the law professors' views on copyright law — whether it's Nimmer's, or Goldstein's, and/or including other leading commentators — is unprepared to do what lawyers have to do. Hell, you can memorize all 8 volumes of Nimmer's treatise, and you're ill-prepared to do what lawyers have to do. The first time you come across a problem that is not exactly like one already dealt with in Nimmer's treatise — that is, 45.8 seconds after you start practicing law — you're going to be very unhappy, because now you have to do what Nimmer did — read some cases and figure out what the hell is going on — and you've never done that before. Sure, if someone asks you for a memo on "What is the first sale doctrine?" you're ready to go — you can just spit out Nimmer's treatise on the subject. But nobody's going to ask you for that — precisely because they assume (correctly) that Nimmer's already done that, and they can just read Nimmer if that's what they want. No, they're going to ask you to figure out how copyright law fits into a new collection of facts — the client's collection of facts — a collection of facts that is probably quite similar to, but alas not exactly the same as, anything Nimmer discusses. You've got some work ahead of you, I'm afraid — and though you have taken an upper-level course in copyright law at Orin's law school, you've never done it before! (except in your first-year Legal Research and Writing class, which seems like it was an awfully long time ago . . .
Related Posts (on one page):
- On Legal Doctrine, and Teaching Law:
- A final (for now!) word on "on teaching law"
- On Teaching Law, II:
- On teaching law:
I don't think he said he would.
Note also that in the 18th and 19th C, at least until the Civil War, virtually all legal education consisted of reading treatises (first Coke then Blackstone). I'm not entirely convinced they were wrong -- a good treatise organizes the law and outlines the principles so the student doesn't have to recreate that process for herself. There are advantages and disadvantages to both.
As much as I enjoy astounding and amazing people, I am afraid you are misreading my comment. As Tony the Tiger and GV point out at 9:44 and 9:48, I did not suggest that a professor should assign treatise excerpts in class. To the contrary, I was offering this as an example of something of something that I think a professor should not do. If you read my entire comment rather than the just that paragraph you excerpt, I think that's relatively clear.
I'm not going to assign a casebook at all, but I will recommend that students pick up a treatise (probably Dressler's Understanding Criminal Law) to consult when needed.
I have no idea whether this will work... but it will be fun to try.
My gripe with law school pedagogy is that those first-year law school cases which everybody reads are not the "law," either. At least where I went, we read lots of cases whose archaic and tortured English seemed to have the sole pedagogical value of teaching students how hard the law was, and what smart people our professors were to have figured this all out. Certainly, some of my class mates (and perhaps I, myself) could have used a dose of intellectual humility. But having been out in practice for several years, there is very very little I learned in the first year of law school that applies to what I do now -- some UCC maybe, and lots of civil procedure. To the extent reading case law is supposed to teach us to "think like a lawyer," there is plenty of recent and authoritative case law out there that can do that -- and inform law students of what the actual law of the land is before they start practicing.
But cases aren't, law, either -- statutes are (at least in the sense of Art. IV of the Const.).
Most of 1L is learning about how to be a 17th century, British common-law judge, and just choosing whatever result sounds "reasonable" without regard to the underlying text (whether it be a statute, regulation, treaty, etc.) But when it comes time to practice law as, say, a bankruptcy law practitioner and when one must parse the recent overhaul of the bankruptcy laws, the case law training is of limited (albeit important) value.
I don't think one should go with all (unedited) cases or only treatises (and I don't think Orin was advocating the latter), but the idea that reading cases actually teaches someone law sounds rather strange to me. If I could go with only one or the other, and speaking only for my field (tax), I think it would be better for a new lawyer/law student to read the Bittker &Lokken treatise rather than sit in class and discuss the grandeur of so-and-so's approach to judicial decisionmaking.
The generalist view is fine if you are training a new law prof, or a big law associate.
Most lawyers are going to something else, though. They will have their fuctional areas they work in, and almost never read a case. They will have hornbooks and digests for what they need to look up.
For them, the caselaw method is useless.
But as a practicing attorney, what I use are treatises. I have a volume of Chisum in my office right now that I used to track down a 103 prosecution problem (David no doubt knows what I am talking about). When I jump into a new area of the law, I will start with an outline to get the general idea (those sold at law schools are great for this), and then jump into the treatises (or, now, in a larger firm, just ask around).
Jumping into the statutes head first usually doesn't work that well, at least for me, since you don't get the overview and how things fit together. Esp. in the U.S. Code, you never know where a statute from another title or chapter is going to jump out and screw up your analysis.
The problem seems to me to be first that much of the law is now statutory, and secondly, that it has grown so large that no one (ok, maybe some of the Conspirators) can understand more than just a small corner of it through reading cases. Heck, I have a hard time keeping up with my small corner of it, and thus my recourse to Chisum above. So, teaching it like it was taught hundreds of years ago makes little sense. Our society, and the practice of law, is much, much, more complex now.
Anyone who relies on "hornbooks and digests" and who doesn't go back and read at least the major cases cited therein is being a truly crappy lawyer.
No one disputes that the skill to read and analyze cases is essential for a lawyer to have. But isn't a year of that sort of thing enough?
The skill is not that hard to master. It's not rocket science we're talking about here, folks. And most practicing lawyers with a few years of experience under their belt do learn new doctrines through (gasp) treatises and CLE articles and the like. Not from plowing through hundreds of cases.
Furthermore, there's a cost to spending so much time reading cases: the inability to cover doctrinal points in great detail. A lot of law students graduate with tenuous grasp of what the law says in a particular field-- say tax law or IP law -- and too much knowledge of how to distinguish a case or parse a holding. That's not much after three years of study.
That's a good point. If you want to read "the law" of a particular common law body of law. You wouldn't read those old common law cases but rather modern state statutes which codify those cases and modern appellate court decisions interpreting them. There is a fair amount of the latter being done.
But something like Regina v. Dudley &Stevens. All of that just to learn that, at common law, necessity is not a defense for homicide.
Hmmm, I've been practicing law for a long time, and I think law teachers ought to spend more time thinking about how they teach law rather than just doing it the same way year after year and, in fact, the same way Professor Hart did it before that, the same way Professor Frankfurter did it before that and, skipping a generation or two, the same way Professor Langdell did it before that. I know it was the same way as in year dot not only because I've read it was so but also because when I was in my first year at Harvard Law in 1965-66, our civil procedure professor, the gentle and kind Richard Field, himself elderly at the time, had the ancient professor emeritus Austin Scott come in one day to teach Pennoyer v. Neff. What's wrong with thinking long, hard and often about the most effective way to teach law to help law students become proficient lawyers?
My undergraduate courses consisted primarily of professors providing a list of cases and statutes to read for the next class. Occasionally, this was combined with a text that provided the black letter fundamentals, but such was usually a mere recitation of the principles covered by the cases and statutes and was a backup for those students having difficulty with the case analysis.
My first year of law school was more difficult because professors (other than David) used casebooks containing abridged versions of cases and statutes interspersed with personal opinions and fluff.
In my opinion, law students should have the critical thinking skills to take in all the facts and form their own opinions and arguments based on their individual needs and those of the client. With casebooks, I was unsure whether to learn the law, the authors' opinions on the law, the professors' opinions on the law, or some combination of the three. Because of this, Professor Post's class was a welcome relief.
To the best of my knowledge and experience, limited though it may be, there will never be a time in practice when I will be called on to remember an author's or professor's opinion on the law. Unless the majority of students plan on entering either academia or the judiciary, they will be required to take whatever position is beneficial to their clients in regards to either the state of the law or the direction that the law should take and support that position with cases and codes, not by referencing Corbin on Contracts or what Professor Post said the law should be.
Besides, teaching law by having students read the law just makes sense.
Don't you know that that is probably more important in terms of the grade you get. I too had professor Post for Intro to IP (an outstanding class btw). And perhaps this is because I took the course after I secured my JD (though, I took it with mainly JD students) -- 95% of what I learned was from coming to class and taking copious notes on the lectures.
I don't want to talk about my lack of preparedness in law school; but sufficed to say, it didn't hurt my exam scores, ability to pass the bar, or future career prospects.
There is also a logical error when you try to distinguish between "the law, the authors' opinions on the law, the professors' opinions on the law, or some combination of the three."
If the professors and authors are doing a good job, they'll recite "the law," not "their opinion on the law." A good math teacher teaches 2+2=4 and it is not "his opinion" that 2+2=4.
If a treatise or a hornbook doesn't teach "the law," then it's not a good treatise or hornbook.
Criminal law, real property law, estate planning, employment, and contract work all require very little case reading and the hornbooks and digests cover the subjects quite well. One good long seminar after law school, a good updated hornbook or two on the subject, and annual refresher seminars keep an attorney in very good stead.
Fair enough. However, even assuming that a professor is doing a good job (which is a rather grand assumption) and presents "the law," not "their opinion on the law," this is still rather pointless unless the student has read and understood the actual source.
For example: I "learned" in a Family Law course that courts will not force non-custodial parents to abide by parent-child contact schedules. How? From the professor and a note in the text. When I actually had such a case, I found out that this was not a black letter rule across states and that, in fact, it was an issue of first impression in that particular state.
Memorizing black letter rules is cute, but is not particularly helpful if the student can't provide any support for the proposition besides "The professor said..." Eventually, students will be forced to actually back up their arguments and neither hornbooks, treatises, nor professors' musings will suffice.