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Law School Teaching Methods:

It's the time of year when we law professors, working on getting our exams ready (and then graded) and preparing our reading lists for next semester, can best contemplate the many, many oddities of the law school educational process. Here's one with which I've become increasingly obsessed over the past few years: our bizarre insistence on shielding our students from having to read the full, unedited versions of court opinions in their reading material. The more I think about it, the odder it appears. The overwhelming majority of our courses use material -- whether already compiled into a Casebook, or even instructor-prepared -- in which the cases have been edited down into a more digestible form, so that only the "important" stuff remains. This, supposedly, helps the student focus on the important stuff (and, not insignificantly, keeps the casebooks from bloating even more than they already are).

It's odd because the ability to read a case, and the ability to figure out what is, and what is not, the important stuff is one of the critical tasks that law students have to master, and our practice insures that they get hardly any practice at all, and no help from us, in mastering it. It would be as though graduate students in, say, 17th century English literature were presented only with bowdlerized versions of Milton's work, so as to help them focus on the important stuff. It would be idiotic -- and yet I am having increasing difficulty figuring out why our practice is not similarly idiotic. Reading a case from start to finish -- plowing through all of it, figuring out who did what to whom, who sued whom, what the lower court(s) did, following each train of thought (even those that lead nowhere and are incomprehensibly set forth -- ain't easy; but given that one must learn how to do it, you'd think we'd look to maximize the number of opportunities we give our students to confront the task. Instead, we avoid them like the plague.

I'm going to try to put my money where my mouth is this coming semester (not the perfect metaphor, but you get what I mean). I'm going to be teaching a class in Introductory Intellectual Property; it's quasi-experimental to begin with, inasmuch as it is for first-year students, part of our recently enacted menu of elective courses that our first-year students take in their spring semester. So I decided, first off, to scrap the Casebook I usually use when teaching this course to upper-level students, and to put together my own material. And I've decided that all of the cases I use will be in full text, no editing, right as you can pull them off of Lexis/Westlaw.

I know that means that they will encounter tons of "extraneous" stuff in their readings -- that when we're covering some narrow topic in copyright law (joint ownership, say), the cases might (as they often do) stray into other questions, even questions concerning other bodies of law, and they might (as they often do) present weird and inexplicable procedural postures, and they might (as they often do) wander around and beat around the bush and fail to present their ideas or their reasoning clearly. But that's the nature of the legal world we are supposedly preparing our students to inhabit, and it seems to me the sooner they get exposure to that and some help in navigating through it, the better off they'll be.

Goober (mail):
With the sole reservation that I never would have wanted to carry all those loose printouts around (especially come exam time, when I would have to tote a stack of the entire semester's reading), I think this is an excellent idea. Once I left law school I had the unpleasant recognition of exactly how much sifting there is to do in reading a case, and I can't help but agree that such a skill could wisely have been developed before I was billing a third party for my time on the learning curve.
12.18.2006 10:35am
Nephtuli (mail) (www):
It's a good idea, but remember that you'll be giving them tons more work to do. Cut back on the number of cases if you're going to do that. [Absolutely -- DavidP]
12.18.2006 10:43am
Mr. X (www):
Prof. Barnett's Contracts casebook takes more of this approach, with minimal editing of the cases and background material to provide context. I found it very enjoyable, though it's quite a shift from, say, Prosser's Torts.
12.18.2006 10:49am
Rich B. (mail):

And I’ve decided that all of the cases I use will be in full text, no editing, right as you can pull them off of Lexis/Westlaw.


Ah. So you'll be teaching them to read to introductory summary paragraph provided by Lexis and then skim the headnotes, skipping the opinion altogether?
12.18.2006 10:50am
Gabriel Malor (mail):
I agree that reading the unedited cases is useful, and probably more useful than providing shortened, just-the-important-stuff, versions.

I am a 2L and had two classes which covered some of the same cases. One class used a case book with much-reduced versions of the opinions. The other used the full, un-edited versions of each opinion. Having read the full, un-edited versions, I was in a much better position to discuss the cases in class. Not only did I have a better idea of the issues at stake, but it was easy to point to sources and citations, because they were right there in the opinion.

That's probably my biggest problem with edited opinions. The editors remove much of the citations to authority. Don't the editors know we need to know that stuff?
12.18.2006 10:57am
FantasiaWHT:
I think there is a benefit to reading both edited and unedited opinions. In my torts class that I just finished, for every 5 or 6 edited cases in Prosser's Torts, we read an unedited opinion from our jurisdiction (Wisconsin).

I don't think every case a student reads needs to be a drawn out lesson in deciphering and excising an opinion; I think it can be an efficient use of time to read a case edited to explain one specific point of law.
12.18.2006 11:05am
Deacon:
Standard of review. Standard of review. Standard of review. That's always what the casebooks take out, and it's often the dispositive part of the opinion. And it's usually not the job of _any_ particular class to cover it, so it's possible for students to graduate with only a passing awareness of the concept. It should be drilled into them, at every opportunity.
12.18.2006 11:13am
Josh Ard (mail):
Opinions alone aren't what's needed, either. Most law students won't go into appellate work. Pleadings and discovery documents teach more about the actual practice of law than written opinions do. In business school, cases deal with the realia of business. Why can't law school do the same in teaching cases? At one time, it might have been difficult to find this material, but that's no longer the case.
12.18.2006 11:19am
CEB:
I disagree. I believe that the "case method" is a wildly inefficient and even counterproductive teaching method. Yes, law students do need to learn to wade through complex decisions (or maybe not--those West headnotes are pretty handy), but we also need to learn a large body of legal principles. To read an opinion of a case filled with unique and peculiar facts that may or may not have a bearing on the outcome in order to learn a legal principle that can be stated in a few sentences is not the best use of our time.
12.18.2006 11:30am
Arvin (mail) (www):
Isn't the question really what skill you're trying to teach? In Copyright class, I want to learn copyright law, not how to read a case. At UCLA anyway, we had a lawyering skills' class that was supposed to teach us the practical skills. When I take Copyright or FedCourts or whatever, that's what I want to learn. The separate skill of how to read a case and figure out what's important I'd prefer be taught in a class about that skill, and not a substantive class.
12.18.2006 11:31am
PatHMV (mail) (www):
You have to learn what the important bits are, first. In a first semester contracts class, the goal is to learn what a contract is, offer and acceptance, all that sort of thing. If the student must pick that out in the midst of cases which may deal with a lot of related issues, the fundamental lesson will get lost or muted. Suppose one of the best cases on acceptance also had as an issue a thorny one of personal jurisdiction, which took up two-thirds of the opinion. Why does the first-year contracts student need to read (and be distracted by) the whole opinion, including the matter extraneous to the course?
[Because that's what lawyering is about. ... It seems to me this example makes my argument. The first year contracts student has to learn how not to be distracted by extraneous matter -- how to recognize the parts of the opinion that are, and the parts of the opinion that are not, relevant to the question at hand. That would be easy to do, and not worth spending any time on, if all opinions were written by, say, George Eliot, or some other prose master. But they're not -- it can be damned hard to know how to drill down, ignore the stuff that can be ignored, and get to the stuff that can't be ignored. How do you find the rule of (contract) law in an opinion that seems to be all about procedure, and appellate review principles, and personal jurisdiction, and ...? I can pull out the sentence for you and show it to you -- or you can learn how to do that yourself. DavidP]

In the higher-level courses, I think your premise may be sound. But not in first year, and especially first semester, courses. We don't teach kids to read by throwing them into Moby Dick right off the bat.
12.18.2006 11:31am
John Steele (mail):
John Ard,

In the legal ethics field, John Dzienkowski and Amon Burton just published a set of problems using that approach. Link here. Each problem is more like a case file, with contracts, wills, etc. I'm only halfway through reviewing it but the materials look very good.

I try to use very few appellate opinions when I teach legal ethics. They present a distilled account of whatever caused the dispute, and edited opinions are even more abstracted than that.
12.18.2006 11:35am
Drive By Comments:
Haha! Like 99% of law professors would be able to teach practical legal skills anyway.

I'm always amazed at the number of them who are not, and never were, licensed to practice law, and the even larger number with zero to two years of actual experience in the field in which they teach.
12.18.2006 11:39am
Ragerz (mail):
I am very sympathetic to Mr. Post's idea here. Even if I think he is crazy to think that the writing of most judges can be compared to Milton. [Believe me, I know they can't be! That's really part of the point -- if all judges wrote clear and precise prose, being a lawyer would be much easier. They don't -- and one has to learn, somehow, to deal with that. DavidP]

But I am sympathetic for different reasons. I don't think that most of Mr. Post's students will benefit much from having to sift through irrelevant material. I mean, is sifting through irrelevant material supposed to be a difficult intellectual task or something? I think not. It is, however, an annoying task. So, Mr. Post will be able to vex his students and in the process prepare them for the real world. I am thinking, that maybe Mr. Post should yell at his students and throw irrational emotional fits, so they can get used to having to deal with difficult partners. Hey, if your going to try to simulate the annoyances of the "real world," why not go all the way?

Okay, so I don't think Mr. Posts reasons are good ones. However, I am still sympathetic, but for a different reason. That reason is because cases are often not edited very well. It is not uncommon to lose critical background context. Judges, even if they are not the best writers, intend their entire opinion to be read. It can be hard for someone who has just read that opinion, to determine what can be safely excised. Often, the editors of case books fail to edit the case in a satisfactory manner.

Actually, I am much more radical than that. I actually don't think it should be Mr. Post's responsibility to teach students how to read a case at all. Why? Because it shouldn't be the responsibility of every single professor in every single class to "teach" students how to "read a case," over and over and over.

Why is it that law classes don't focus more on the efficient transmission of information, in an understandable way? Could it be, that sometimes a more textbook like, rather than case law approach, would be superior?

My favorite professor in law school actually said what he knew. None of that socratic BS, lets have a conversation to make a point in 5 minutes, when that point could otherwise be communicated in 30 seconds if made directly. Don't get me wrong, I am obviously aware that the law is often ambigious. That it is often suited to bottom up, rather than top down thinking. That we all have to learn to think for ourselves. I just don't think that fact justifies the socratic method or the case method for that matter. These are merely inefficient means of conveying information.

Why can't all law professor be like my most favorite and immensely popular professor from law school. Why can't they just have something to say and actually say it? Why must they ramble?

Anyway, so I digress. Mr. Post is now going to feed his students even more irrelevant information. Maybe they will be better off for this, because case book editing is often not done well. But they will still suffer from a deluge of irrelevant information and the actual substance of intellectual property law will inevitably receive less attention than it otherwise would.

But why should substance play second fiddle? So students can "learn" to "read a case" and "think like a lawyer" yet again? Again and again. *eye roll* I have an idea. Instead of teaching this "skill" over and over again in every class, wouldn't it be more efficient to require every 1L to take a class on legal methodology that would cover these things. Then all the other classes could focus on, I don't know, actual substance.

Maybe when someone takes a class in intellectual property, that is what they want to actually learn. Are they really there to learn how to read a case??
[Um, yes. Why have law school at all, I wonder? I can give you a VERY good outline of copyright law on the first day of class -- hell, I can even give you a full, verbatim text of "the Law." It's called the Copyright Act. So I can hand that out, and then bring people in on the last day for exams, right? What's the point of all this case-reading BS, anyway?
The answer is that the outline is a useless and lifeless thing. If you don't get that, I'm not bringing you any of my legal work, that's for sure. You can *eye roll* all you want -- but your first day practicing law you will be presented with a legal problem you've never seen before! Uh-oh!! What do you do now? Think about it. DavidP
]
12.18.2006 11:46am
3llen:
As a 3L, I've been exposed to reading full cases quite a bit during my 2 1/2 years of law school so far: during first year legal research and writing, moot court competitions, paper writing, journal work, etc. I don't think that my experience is particularly atypical. Essentially any research project in law school is going to require a student to find unedited cases through Lexis or Westlaw and read through them to find the relevant parts to whatever it is they are doing.

I agree that there is value in learning to read a full, unedited case, and that it is a skill that could probably be taught more prominently in law school. Just realize that if you attempt to teach that in a substantive class, it will most likely come at the cost of time that could be spent on the substantive material itself. Also realize that between the looseleaf cases and the pages and pages of case material that are irrelevant to the subject matter, your students will hate you this semester, even if they realize the value of your lesson later on. Also realize that, as CEB alluded to, a large proportion of your students will not get much farther in to those cases than the summaries and headnotes at the beginning of the case--after all, the substantive law is what really matters for purposes of grading.
12.18.2006 11:47am
nelziq (mail):
As a current law student I can tell you that this will hurt your students more than help them. Your students are trying to learn the black letter law, because thats what you are going to test them on. Now if you were actually going to grade their exams on how well they can read a complete case, this would be a good idea, but we both know that that is not the case. To be honest, a student would be wise to completely ignore your assigned readings that are supposedly "good for him" and go find an abridged summary or read a good horn book instead. Well, I don't mean this to sound snide, but I learned some time ago that students actually don't know what's better for them than I do -- that's why I'm the professor and they're not. I practiced law for many years, and I clerked for several years, and I think I know better than my students do what they need to understand in order to be good at those things. No offense, but if you take my class and rely entirely on the abridged summaries and horn books, you will, and should, do very badly. I'm not actually going to test them on "black letter law" -- I'm going to see if they can solve legal problems, which means taking a complicated set of facts, and then finding the relevant principles of law that can be brought to bear on those facts to reach a legal conclusion (Hey! That's what those courts are doing in the cases!! What a coincidence!) If you think you learn how to do that from the hornbooks, I say: good luck to you. DavidP]
12.18.2006 11:53am
JWR (mail):
I think it's a great idea to hand out copies of the entire text of each assigned opinion. BUT, you should not instruct or expect your students to read that entire text. Give them the entirety of the assigned cases, tell them the subject matter of that assignment (i.e., you're trying to learn the rules about subject X), and let them figure out how much of the case to read and how much of it to skip.

No efficient lawyer that I know reads most cases "from start to finish," even though that can be a useful exercise. They take an entire case (actually, many entire cases) and figure out, on the fly, which 10% or 40% or 90% of the case to read, based on the information they need for the project at hand.

This can be hazardous--you might miss that critical caveat buried in the discussion of some irrelevant point--but it's also absolutely necessary.

So: Assign the whole case, and let them figure out how much/little to read. Let them edit their own cases. The lazy ones can just read the headnotes, the crazy ones can read every sentence of every opinion, and the best ones will read mostly the relevant parts of the opinions and skip the dross.
12.18.2006 12:04pm
Matt L. (mail):
Ragerz is exactly, exactly right. Profs (1) like to feel that they are central to their students' education ("it's impossible that any of my students could ever have read a whole case outside of my class!") and (2) have practice experience -- if any -- mainly as brief-writing junior litigation associates (often, appellate litigation) whose job really is reading cases rather than knowing law.

An intellectual property course should try to teach some intellectual property; profs who romanticize the case method and prioritize "how to read a case" (over and over and over and over again) over teaching law do their students a disservice.
12.18.2006 12:06pm
Hans Bader (mail):
Professors should go in the opposite direction: ditch the case method entirely (except in legal research courses).

Europeans learn the law faster, since most of them learn the law in a structured way, through an outline, rather than through burrowing their way through cases.

There is simply too much law to learn using the case method, which is simply reinventing the wheel.

Most courses should be taught without using the case method at all, and follow an outline where students are told what the law is, and where legal ambiguities most commonly arise.

The case method should be used only in a legal research class, where it should be employed with full rigor so that students will develop the ability to abstract relevant information quickly from cases while straining out the background noise. When it is used, the case method should be used, as the professor advocates, with complete, unedited cases, not edited cases.

But otherwise, the case method should not be used at all.
12.18.2006 12:07pm
The Naked Emperor is Doing a Strip Tease:
Perhaps we should examine the premise that law school is even relevant...
12.18.2006 12:09pm
Matt L. (mail):
I should add that I like the case method and am glad I used it; it was a lot more entertaining than outlines. But we shouldn't assume that just because the case method exists we should make it as "real-world" as possible; profs should temper their enthusiasm for cases with an effort to actually teach law.
12.18.2006 12:19pm
DRJ (mail):
I remember this discussion 30+ years ago when I was in law school. Many fine law schools edited cases and tailored discussion so their students focused on the "important parts" and learned black letter law. Other, comparatively fewer, fine law schools taught law students based using complete opinions with a nebulous goal of learning "how to think."

I attended the second kind of law school and, after I started work, I quickly learned that I didn't know as much black letter law as my fellow associates who had graduated from the first kind of law school. It was a disadvantage for several years because I had to learn law they already knew. However, 5-10-15 years later, I was able to read and digest cases, formulate arguments, and forecast the evolution of the law. They couldn't and many still can't. Maybe my experience is uncharacteristic but I don't think so.
12.18.2006 12:19pm
Broncos:

It’s odd because the ability to read a case, and the ability to figure out what is, and what is not, the important stuff is one of the critical tasks that law students have to master, and our practice insures that they get hardly any practice at all, and no help from us, in mastering it.


True, but it is also important to remember the other legal research that lawyers conduct when they are unfamiliar with a subject area. Nobody with little knowledge starts by reading decisions.

I usually begin with the text of a statute or rule, if I have been told that any might govern. I read a treatise (or two) on the general topic. I look through statutory annotations and read pertinent cases. Finally, I conduct a westlaw caselaw search and read a wider array of cases, conduct factual distinguishment, and extract a (beneficial) rule. [ I agree that this is the preferred approach -- I used it, more or less as you've desribed it, when I was in practice. My point, though, is that until you know how to put your own outline [or, in the extreme, your own treatise] together, the outlines/treatises that others have put together are only marginally useful. Let me put it this way: Nimmer's a very smart guy, and his copyright treatise is indispensable for someone practicing copyright law. But let's imagine two hypothetical lawyers, one who uses Nimmer to answer a copyright question (but can't read a case to save his life), the other who never reads treatises (but knows how to find the relevant law in the cases -- which is, after all, all that Nimmer has done). I understand it's a false dichotomy, but not a useless one: I'll take the 2d lawyer any day if I ever have a copyright problem. Again, I think the analogy to someone studying literature is apt: Harold Bloom, like Nimmer, is a very smart guy, and has put a lot of work into organizing his views on Shakespeare together. If you want to say something intelligent about the Shakespearean plays for a living, you better learn how to read shakespeare; reading Bloom might be valuable on top of that, but the one is fundamental, the other secondary.DavidP].

If you're going to treat them as a lawyer researching to learn new material, then you should also provide them with applicable statutes/rules, and with treatises on the general subject matter. This isn't "cheating," it's a realistic (and often necessary) preparatory step. [I certainly agree about the statutes/rules; the other thing lawyers need to know how to do, and which we do a terrible job of teaching them, is how to read statutes. On the 2dary sources, I'm planning to take a middle ground -- I'm going to put lots of the better treatises and summaries and outlines on reserve for anyone who wants to consult them, but not require their use. DavidP]

It might not be as helpful from a "skill set" perspective; but it is just as helpful from a knowledge-acquisition perspective. This should not be overlooked, especially for students with little knowledge of the subject area.
12.18.2006 12:19pm
andy (mail) (www):
Bad idea for 1L courses. A better and better idea as you move up the chain, although you should instruct them to read only the "relevant" portions (and figure out what's relevant themselves I guess)...

The bigger problem in law school isn't that students aren't taught how to fully read cases. The problem is that that is the only thing they know how to do. Most law school graduates, if unable to find a "case on point" interpreting a statute or regulation, are completely helpless. Given that most law is codified, it's sad that professors continue to teach using cases because that method is more "interesting." Many graduates are helpless in interpreting "real" law; I shudder to think how a newly-minted bankruptcy "attorney" will analyze bankruptcy law issues, seeing that the Congress just passed a gigantic bill and there really aren't "cases on point." But I've digressed...
12.18.2006 12:24pm
CEB:
I should clarify--by the way, I'm using "clarify" in its usual sense, i.e. "backpedal"--my objection. I think your proposed method would work better in a class like IP, a relatively narrow upper-level course, especially since it's code-based as well. I'm guessing that the cases you would assign would actually be the authoritative ones that your students would have to know in practice, and not just presented as interesting examples like too many of the cases in crim or contracts.
12.18.2006 12:30pm
CJColucci:
Although I've been out of law school a long time and am probably suffering from incipient Mad Cow Disease, my recollection is that I had legal writing and research and legal method courses, and I picked up rather quickly the not-too-demanding art of skipping through the irrelevancies of full-text cases.
I've been putting together a syllabus for a case I'm planning to teach, and I plan to use largely edited cases for convenience. What I'm leaning toward doing, though, since I lean to the probably true but cynical, academically unrespectable, and professionally sterile view that the true explanation for the seemingly inexplicable shifts in doctrine is changes in court membership, but lawyers need to be able to make plausible noises regardless, is including excerpts from briefs and oral arguments.
12.18.2006 12:32pm
Antares79:

following each train of thought (even those that lead nowhere and are incomprehensibly set forth – ain’t easy; but given that one must learn how to do it, you’d think we’d look to maximize the number of opportunities we give our students to confront the task. Instead, we avoid them like the plague.


Sort of like unclosed parentheticals?
12.18.2006 12:38pm
No one (mail):
No comment to make. Just a request to remember to post and let us know how you think it worked out in practice.
12.18.2006 12:45pm
bk (mail):
Not a question of there being a right or a wrong answer. With a background in educational publishing, I can tell you with certainty that you've stumbled across a pretty standard pedogogical conundrum: depth or breadth? Pick one.

Students are often asked to cover a lot of territory in a short amount of time. The usual pedagogical method within a discipline is to do general surveys first. This gives students the sorts of filing cabinets they need in which to later store more difficult and more detailed concepts.

OTOH, there's also a tradition in some disciplines (especially popular and overenrolled ones) to make intro courses ballbuster gatekeepers, the better to quickly thin the herd to a more manageable size.

Obviously, it's a failure if any law school provides grossly insufficient grounding in the sort of real-world scholarship graduates will be expected to perform some day. So it sounds to me like at the very least law professors ought to make sure that they repeatedly familiarize students with the trials of wading through "primary source" material. But the primary goal of most schools is to provide breadth, a well-rounded education within the given domain. Sounds like a matter of balance to me.
12.18.2006 12:49pm
Maniakes (mail):
My inclination would be to gradually acclimate your students to the full cases. Say, give them the first case in the standard abriged format, then give them one that's less abriged, then a full case you've annotated to emphasise the important parts, then an unedited case.

This way, they get a chance to get acclimated to the key issues in isolation, and they learn what the important bits look like before they have to hunt them out for themselves, but they still learn how to read a full case.
12.18.2006 12:57pm
Ben Barros (mail):
David, as a couple of commenters have suggested, I think you're conflating two things we teach in law school. One is a certain amount of doctrine. The other is how to read a case. They don't have to be taught at the same time. Indeed, I think it can be counterproductive to try to teach them at the same time. One of the assumptions in your post is that a practicing lawyer would start a research project with looking at cases. I spent a reasonable time in practice, and if I didn't know much about the subject, I would _never_ start with cases. I would find a treatise to give me the basic lay of the land, then look at the cases, because the cases don't make much sense if you don't have a decent grasp of the law. Especially in first year courses, I think it is far more important to focus on doctrine, because a certain amount of doctrinal understanding is important before you can really learn how to read a case. In an upper-level IP course this wouldn't be so much of an issue, but I do think it is very important to get all of the basics across. None of this is to suggest that case reading isn't important -- I was still getting better at it a few years into practice. But don't lose sight of what (I think) an IP course should be about -- IP law, not case reading.
[I think I just disagree, fundamentally and rather vehemently, with this. I do NOT think an IP course is about IP law and not case reading. I think an IP course, like every other law school course, is about learning how to learn (in this case, IP) law. The idea that one learns much useful IP doctrine as part of an IP course, even the best (and I had some damned good courses in law school) is silly, really -- among other reasons it's silly is that students forget doctrine very, very quickly (just as I did, when I was a student). Yes, my copyright students learn that a work "prepared by an employee within the scope of his/her employement" is a "work for hire," and that the Supreme Court has determined that "employee" means "an employee within the meaning of the common law of agency," and that the common law of agency provides for an 8-factor test, and ...
But seriously -- 2 years down the line? Five years down the line? They'll forget that in 2 months, at most. If they learn anything, they learn how to figure out doctrine, on their own, because that's what they'll have to do as lawyers.
I agree that practicing lawyers always consult 2dary sources first -- hell, that's what I did, too, in practice. Nothing wrong with a good overview of the lay of the land (though I was distressed at how often treatises got things "wrong"). But that's the easy part (so there's no point spending a great deal of time on it in law school); the hard part is what you do next, and how you make sense of what the treatise says, and how you can figure out when the treatise has it all wrong. DavidP]
12.18.2006 1:05pm
Bryan DB:
Your described approach is exactly what my IP professor did for our Patent Law class. I know that for the "survey" course he uses a case book, but for the patent-specific course it was all full-length cases from way-back-when to current stuff. He cut back on the assigned reading (to a couple cases, sometimes three, per day) and then hit some of the highlights from other cases during the lecture. I thought it worked well.
12.18.2006 1:07pm
e:
I'm glad I had someone else for IP, we did have to look at recent cases in their unedited form, but I think the prof realized that most students have more than a single class, and time is a limited resource. There is value to the sift for yourself approach, but even in 2/3L survey classes a well organized building-block works best for many learners who thrive with context that more traditional pedagogy provides. As others have written the law school experience is about more than a single class. Profs who think they're smarter than tradition often fail their students by forgetting that there is a difference between keeping up with legal developments and establishing a topical knowledge base in the first place. Good luck, but I suspect you will create confusion that is not as beneficial to your students as you hope. While students may not know best what they need, feedback is still an important part of that lifelong learning process.
12.18.2006 1:20pm
PatHMV (mail) (www):
Certainly being able to read and understand cases, learning how to use them to make arguments on behalf of your client and predict likely results of litigation over particular issues is a key component of a law school education.

But that is hardly the only goal of a legal education, nor the only requirement for practicing law.

You say: I do NOT think an IP course is about IP law and not case reading.

This was my general feeling, too, for many years. If I need to know what exactly the law is, I'll look it up. Let me get a general feel for most things, and then look up the specific rules when I need to.

This habit was broken the first time my boss (the governor of our state at the time) called me up and asked me a question. He had to make a decision then, and needed to know what the general rule of law was. He did not want me to do a research project, he didn't need (at that point) the nuance, he just needed to know the basic law.

If you have an appellate practice or some specialized practice, then maybe having the basic rules drilled into you doesn't matter. But if you have a very general practice (such as a state or corporate general counsel), you need to know a fairly wide range of the black-letter law pretty well. Frankly, most questions people ask me are answerable by referencing black letter law.
12.18.2006 1:39pm
von (mail) (www):
I second Barros -- and, to a lesser extent, Nelziq and Ragerz -- despite the fact that Mr. Post has thus far preferred to snark quickly rather than to take the time to understand the points being made. For background, I'm an associate, nearly up for partner, at a large law firm. My practice is about 75% patent litigation. I spend a great deal of time with first and second year associates, and am frequently the person that cleans up their work for partner/client consumption.

There is great and powerful need to teach students how to read cases, and law schools would do well to devote some time to having their students digest complete cases. Kudos for recognizing that. There is also, however, a great and powerful need to teach students bona fide Black letter law. That need is particularly acute in intellectual property law -- particularly patent law. Patent law is (deep breath) really, really, really, really, really, really, really, really, really, like, complex. It is also subject to the dictates of a body (the Federal Circuit) that includes at least two or three "camps" on nearly every subject of interest, sometimes offering opinions that, at first glance, appear to be inconsistent with one another and, on deeper inspection, are revealed to be irreconcilable with one another (in any reasonable sense of the word). You could spend an entire semester on patent claim construction alone and not exhaust the subject.

Giving students entire cases to plow through in the context of an introductory survey course covering the whole of IP is worse than useless: it's downright dangerous. The profession doesn't need it. I don't need it.

I think that the better approach -- for this class, and from the perspective of your students and their potential employers (rather than from your professorial instinct to stand athwart reality and shout "stop") -- is to give your students background in the form of an outline and then delve into selected cases picked to teach a particular topic of interest, with heavy guidance from their brave captain of knowledge, i.e., you.

Were these 3Ls taking an elective course on a specific topic in IP, my advice might be different. But a survey course for 1Ls? C'mon man.

von

p.s. If you are going to do this -- and, given your rudeness to other posters who are trying to acquaint you with reality, you are -- allow me to suggest two cases. AutoGiro Co. v. United States, 384 F.2d 391 (Ct.Cl. 1967) is still the best intro to the basic problem of claim construction. ("Things are not made for the sake of words, but words for things.") Grain Processing Corp v American Maize-Products Co., 185 F 3d 1341 (Fed Cir 1999) is the standard on damages. If you really want to mess with your students' minds, you can also have them read Judge Easterbrook's second district court opinion in Grain Processing (he sat by designation), where he tells the Federal Circuit that, no, it made the mistake in applying its own caselaw when it reversed him the first time around. (Easterbrook was successful the second time 'round, resulting in the decision above.)
12.18.2006 1:44pm
U.Va. 1L:
I think Arvin is right on. In a Copyright class (which I'm taking next semester), I want to learn about Copyright law, not how to read cases. I feel like that's what a large part of the year long Legal Research and Writing course is about.

Yet, I'm sure reading cases is a skill that will take more than just two classes to master, and so reading more full cases would be useful. At the same time, I could not--could not--have read the full versions of all the cases I read this semester. I'll grant that I read at a somewhat slower pace than average, but regardless, I don't think even a fast reader would have time to read the full versions of all the cases assigned in our first year classes. It just wouldn't get done.

Also, particularly for 1Ls, but for substantive classes in general, the purpose of the class is to learn about a subject so LATER in the real world when you are reading the full cases you know what is important. If you don't know anything about the law of contracts (or patents, or civil rights, etc.), you CAN'T read a full case and figure out what's important.

Plus, the other issue is that cases have a lot of extra stuff that's just not relevant to the subject being taught. It's not important in a Civil Procedure class, for example, to read pages and pages of discussion in a contracts case about R2d § 90 or the like. One of the purposes of editing is not just to focus on the important stuff but to focus on the content relevant to the subject being taught.

All of that said, my section mates and I have oft remarked we would have liked to read more of the full cases, especially in torts. Our professors often make remarks that start off, "This wasn't in your version, but if you read the full case..." or they'll just talk about stuff that we wouldn't know because it was edited out.

I think the best idea would be to have a mix of edited and unedited cases (with the quantity adjusted to make a bearable reading load). Even for the full cases, it would still be worth editing out sections not relevant to the course, such as discussions about jurisdiction for a torts class or consideration for a civil procedure class.
12.18.2006 1:45pm
Ben Barros (mail):
Yeah, I guess we do disagree pretty fundamentally. On your theory, it escapes me why anyone would take an IP course rather than any other course if they're learning the same thing, i.e., case reading, and forgetting everything else. It's always dangerous to base too much on your own personal experience, but I, personally, remembered a lot of material from law school. Maybe I couldn't quote a certain doctrine off the top of my head, but I understood the basic issues and knew how to ask the right questions if I had had a relevant course in law school. If I didn't have a relevant course, I had to spend more time doing secondary reading to get up to speed.

I should note that I agree that treatises often get things wrong, and I firmly believe that context matters a lot, which is why close case reading is so important. Maybe this gets to the heart of what is screwy about how we teach law school, but again, I don't think that case and other analysis is best taught at the same time as doctrinal stuff. I don't think that analysis, especially as it is relevant to practice, is well taught in the typical law school class, though I try to incorporate it as much as I can. If you want to focus your class on practice-relevant analysis, great, but I don't think that unedited cases alone add all that much. Problem method teaching would probably be far superior.
12.18.2006 1:45pm
U.Va. 1L:
Fixing the broken italics. (I think)
12.18.2006 1:46pm
von (mail) (www):
End italics
12.18.2006 1:46pm
The River Temoc (mail):
I seem to be arriving to this thread late, but I'll chime in on the side of those who disagree with this approach.

The point of taking a class in, say, contracts, is to learn the basic common law of contracts -- not to "learn how to read a case," which is, of course, code for learning how to skip the irrelevant parts of a case.

In any event, there should be more work with statutes and regulations, and less with cases. This is particularly true after 1L year, where the subjects taught (e.g., corporations, tax) are more statute-intensive and based less on the common law.

We need to be pruning the irrelevant portions of the law school curriculum down, not adding to them.
12.18.2006 1:49pm
The River Temoc (mail):
In business school, cases deal with the realia of business. Why can't law school do the same in teaching cases?

I'm actually applying to b-school now, and I'm deliberately avoiding the more case method-intensive schools (e.g., HBS) -- this because I think it's absurd to try and teach subjects like accounting using the case method. So I would disagree, to some extent, that business cases teach "the realia" of doing business, particularly in finance course.
12.18.2006 1:51pm
von (mail) (www):
I should note that I agree that treatises often get things wrong, and I firmly believe that context matters a lot, which is why close case reading is so important.

Let me both agree and qualify that statement by Mr. Barros. Treatises do frequently get things wrong; but so do people, i.e., lawyers, professors, bloggers, etc. And a good treatise is typically not wrong in a direct sense of it tells you that it's perfectly OK to kill your aunt in Rhode Island so long as it's past June 12 but for July 17; rather, treatises tend to be incomplete or to oversimplify.

Now, back to making a living.
12.18.2006 2:07pm
Ben Barros (mail):
von, I agree -- to the extent treatises get things wrong, the errors are sins of oversimplification.
12.18.2006 2:20pm
meld:
I tend to agree with David. I remember that legal research and writing basically taught us how to write a brief. There wasn't much case reading. But perhaps I was slacking.

Regardless, the Barbri course taken in preparation for the bar exam teaches you more than enough black letter law -- what is a contract, what is a breach. That stuff is not hard. In the course of my law career -- four years litigation practice, one year clerking, and one year in government -- I've always been able to pick up the basic law fairly quickly. What you have to know cold in any given situation varies. What's hard is taking the facts of your particular case and figuring out what to do with them. Law school should teach you to think critically. That's it.

If you are a patent lawyer, and you are relying on law you learned in law school, I would check to see if your malpractic insurance premiums are paid up.
12.18.2006 2:23pm
von (mail) (www):
If you are a patent lawyer, and you are relying on law you learned in law school, I would check to see if your malpractic insurance premiums are paid up.

No one suggests that lawyers should "rely[] on law you learned in law school" as they develop experience and expertise in their field. But, given that half the battle in legal research is knowing where and how to look, there are times and courses where background is appropriate. Indeed, background is all that you'll reasonably have time for in a survey course of IP (which includes, I presume, patent, trademark, cyberlaw, copyright, trade secret, unfair competition, et al.)

Also, as applicable as the example of Barbri may be to the example of contracts, I don't think IP is on the bar exam of any jurisdiction of which I'm aware.*

von

*Save the patent bar, of course. But the important thing to remember is that 50-60% of modern patent litigation is being done by folks who don't have the qualifications to take, and thus have never taken, the patent bar.
12.18.2006 2:37pm
meld:
But, given that half the battle in legal research is knowing where and how to look

I just don't think that this is quite the hurdle you're making it out to be. And I don't think David was saying he wouldn't give his students background information. He's going to give them full cases instead of edited versions. I don't think he is planning to cast them adrift on their own to figure out IP. He's a teacher. I am presuming he will teach.
12.18.2006 2:58pm
The River Temoc (mail):
Law school should teach you to think critically.

If you don't know how to think critically before you go to law school, the American educational system is in worse trouble than I thought.
12.18.2006 3:07pm
Hattio (mail):
Nobody else has mentioned this, so I thought I'd give it a stab. For me, when I realized I really didn't have to wade through an entire case as a summer associate, thinking back to the casebooks I had liked and disliked taught me the best way to do it. Those that didn't include a basic fact section were almost always more confusing, unless it was a completely legal matter (ie., what the standard of review was). That taught me when and where I needed to wade through the facts, and when and where I could skip to substantive law, and go back and skim the facts if necessary.

In short, I think reading various editing styles helped me sift through the irrelevant stuff rather than hindered.
12.18.2006 3:17pm
DRJ (mail):
There are many smart, accomplished people in a wide range of professions who don't know how to think critically because they've never been taught to think that way. In my view, that's one of the main benefits of a good law school education. Maybe people should be learning how to think critically in college or even in high school, but they more frequently learn to think cynically or skeptically.
12.18.2006 3:19pm
Jon Rowe (mail) (www):
My 2 cents: Anything that will lead to more reading for law students probably isn't wise.

Btw, I had that very course with Prof. Post at Temple -- and I'm not just saying this -- it was one of the best I had.

But, as was usually the case in law school, I learned most of what I needed to know by showing up to class and taking meticulous notes, which, for my learning style, was far more important than doing all the reading.
12.18.2006 3:47pm
SKlein:
Focusing on case law is exactly the wrong approach. Too often, young lawyers think that legal research consists of running lexis searches and finding a snippet that helps the argument du jour. They fail to understand that there are black letter principles and a coherent structure to the law, albeit with many fuzzy areas and the occassional swamp. I work in a good firm in mid-market city and it is rare to see a lawyer under 40 in our library. I am not a curmudgeon or a doddering old coot, but I really do think that the rise of computerized research has lead to the decay of critical thinking skills in younger lawyers. Teach them principles.
12.18.2006 3:47pm
r78:
Mr. Post

Your approach is as good as any, it seems if you make it interesting for the students.

I confess that I seldom ever attended classes or did any casebook reading for classes I thought were boring. So anything a teacher can do to make the material interesting is a good thing as far as I am concerned.
12.18.2006 3:49pm
Jr. Associate:
I know this is very late, but I believe that Prof. Post is thinking of only some of his students' needs, and not really addressing the practical realities of law school. Should law school teach you how to weed through cases and gather only important information? Of course. Does it? Sort of. Does being a summer associate? Certainly. Does the friendly senior associate or partner that you work for once you're out of law school? Definitely.

This is not an appropriate method of teaching for a first year class for several reasons. First, since electives are new not only to this particular first year class at your school, but new to the school itself, the first year students have limited elective-choosing experience to draw from or receive from upperclass students. Some may well have ended up in your class kinda-maybe interested in the topic, some may have a passion for it, some may be there because it was the only option left. Throwing extra reading at these students and only one of the three types will be excited to tackle it.

Second, though you may snark about this, it seems like you are discounting the demands of their other law school classes. First years are still in required courses, and since grades don't come out until half way through second semester, they really don't yet know if their study methods from first semester were successful. I know it was the rare professor at Virginia (where I went to school) who actually remembered that we had 4+ other classes' worth of work. They will want and need the flexibility to consider what best helps them to understand their classes.

Finally, first years don't have the base of knowledge yet to distinguish "important" from "vital" from "neat, but only maybe relevant." They pick it up at different paces, and not everyone will have mastered it by the beginning of second semester. I guarantee that you will cause at least one (and perhaps 10, depending on the size of your class) student to have some sort of breakdown figuring out what they're supposed to care about in a particular case you've assigned. That might be character building, but its counterproductive to both learning the substantive law and to learning how to read a case effectively.
12.18.2006 7:03pm
Dr. T (mail) (www):
We do the same thing in medical school: provide condensed versions of clinical cases with only the relevant history, exam, and test results. This method effectively conveys useful information in a time-saving manner.

However, we also send medical students into hospital rooms and clinics to speak with patients, examine them, and review their lab tests and imaging studies. Afterwards, the medical students have to orally present the important findings that lead to the diagnosis (or to a differential diagnosis).

It seems that law schools could do the same thing: use condensed cases for illustrating specific points (as you do now), but also require law students to tackle original cases and summarize the key points.
12.18.2006 8:00pm
Waldensian (mail):

...the important thing to remember is that 50-60% of modern patent litigation is being done by folks who don't have the qualifications to take, and thus have never taken, the patent bar.

Guilty as charged. :)

The flip side of this is that large numbers of folks who have passed the patent bar don't have the qualifications to present a case in court, and thus will never present a case in court.

On to the actual topic at hand: like some other posters here, I'm still trying to figure out why so many people think the case method is the best way to teach law school. Logically it seems to me a number of subject areas, at least (e.g. civil procedure) just don't lend themselves to the case method. In any event, I think the case method is sort of like the adversative method used in military schools: it does seem to produce results, we've always done it that way, so we close our eyes to whether something else would work better.
12.18.2006 9:33pm
DRJ (mail):
This has probably been addressed here before but I think the traditional Socratic method is an effective way to teach the law. However, by traditional Socratic method I mean the process by which students read/brief cases, the professor asks questions about the material, and at the end of the class the professor summarizes the black letter law. Somewhere in the past 30-50 years, many professors stopped summarizing the important points and thus students would often drift away after class more confused than enlightened.
12.18.2006 11:28pm
Lev:

However, by traditional Socratic method I mean the process by which students read/brief cases, the professor asks questions about the material,


I think that is not an actual Socratic method, although it is what perfessors do a lot. The actual Socratic method is a walk down a path that examines, through questions whose answers are based on the course material, the consequences of the various answers, the dead ends, the bad results, the good results. In three years, I had exactly one perfessor who actually used a Socratic method of imparting knowledge, as opposed to many who asked questions about the material.

So. What is the purpose of law school? If it is to learn how to read and analyze cases, why is it longer than a year?

If it is to learn "the lay of the land" in various areas of law, why is the emphasis on cases instead of, say, Gilbert's supplemented by cases, and statutes? Do statutes and statutory interpretation even matter in law school? Do they even exist there?

Should law school courses teach subject matter in the manner a practicing attorney would approach learning a new area of law? Do practicing attorneys hit the cases first? Ha.
12.19.2006 12:46am
Ragerz (mail):
Mr. Post kindly responded to my comment. It is easy to be misunderstood, especially when making many points. Mr. Post writes:

"You can *eye roll* all you want -- but your first day practicing law you will be presented with a legal problem you've never seen before!"

I agree that we should learn to read cases in law school! And we should also learn to do legal research. My point, is that we should learn this once, in a course on legal methodology. Not again and again. Is that unreasonable?? Yes, it does cause students to roll their eyes when professor after professor decides that they will "teach" the student to "read a case." It is not that reading cases is unimportant. It is that this whole thing can get awfully redundant.

What will a lawyer do when the are presented a problem that they have never seen before?? They will recall their legal methodology class and get on Lexis or Westlaw. This isn't rocket science.

Thank you for taking the time to reply to my comment. I am not advocating never teaching basic skills, which seems to be how you understood me given your suggestion that a new lawyer who graduates from Ragerz Law School would be unable to handle "legal problem [they] have never seen before." This seems like a simply misunderstanding. I am anti-redundancy, and pro efficient transmission of information (information not just about black letter law, but the ambiguities as well), not anti basic skills.
12.19.2006 2:54am
Reinhold (mail):
Are judges and law firms having problems with clerks and associates transitioning from reading edited cases to reading full length cases? After a year of research and writing class and reading condensed cases in case books, I found it a fairly simple transition to reading full cases in my first summer job--a transition that I didn't even notice until I read this post.
12.19.2006 11:08am
MJG (mail):
First, the edited cases are often far more incomprehensible than the full opinions. Very often the edited case boils everything down to an out-of-context sentence or paragraph that is supposed to convey the "essence" of the case. This is why students hate "Note cases" and why they'd be better off just putting a parenthetical than some kind of [i]Smith v. Iowa[/i] 555 F.2d 55 (5th. Cir 1555) held that "The issue... here... is...that rights....are .... intrinsic...to society..." Thus I agree that whole cases are much more beneficial for conveying information and teaching relevant skills, but I also know the amount of material professors hope to cover is typically pretty ambitious. No matter how good a single case is on a subject, typically you need to read at least a couple to get a handle on an area of law, and inevitably there are conflicts and tensions between those opinions. And the outline suggestion comes off rather distasteful.

For a course like IP (which I am not an expert on) but which I understand is fairly rooted in statutory law, it seems like an outline or more plain language understanding would be best with a focus on certain major problem areas--and in those areas give a heavy focus on full length cases to discuss, synthesize and plan.

It seems to me the relevant skills in this kind of context are best achieved by delving deep into certain areas as both substantive work and a legal analytical exercise, and to understand that when you synthesize these areas you should be thinking both what arguments could win at litigation but also what you might advise a client. This latter issue involves both what the caselaw at least fairly clearly says they can do (what could you safely tell your client to do) and the gray areas (what would be the limits of this area?). I have to think a combined approach is the best way to both delve deeply and teach those skills and also cover enough material. If for no other reason than reading enough full-length cases on any given area is a recipe for a great deal of reading.
12.19.2006 12:24pm
cthulhu (mail):
I'm not a lawyer or a law student. But I do know a thing or two about training.

When you're trying to teach a dog to sniff something out, the first thing you do is just throw it down right in front of him, and praise him effusively when he picks it up.

Then you put it down in another part of the room, and praise him when he picks it up. Then you move it to another room; then you can pile it under some straw...

Eventually, you can bury it under a whole pile of crud, and the dog will still be able to find it.

I think law students early in the process need to be introduced to the things they are expected to be able to find. I gather from the previous discussion that this is "black letter law". Later in the process, they can be increasingly challenged to find these things in increasingly confusing contexts, starting where the issues of law are laid out fairly explicitly -- appellate cases, say -- and later being challenged with cases which wander a bit more. As they become capable of burrowing through layers and layers of confusion and irrelevance, it is to be hoped that they eventually become able to handle real-world situations.

After all, in the real world, your client comes to you with a sense of grievance; a collection of facts, opinions, mistaken beliefs, and hearsay; documentation that is voluminous or spare, largely irrelevant, and apparently written by goat-herders; and a profound distrust of the legal system and its practitioners. The professional lawyer can listen to the rambling narrative that ensues, and somehow come up with a reasonable application of the law that serves his client's interests. That sort of skill can compare favorably with a bloodhound's.
12.20.2006 4:17am
StCheryl (mail):
My first year law school classmate, the aerobics instructor, in my CivPro class (many, many years ago) once asked why we never find out what happened to the parties in the cases we read. Now these lucky kids will learn something!

Not only will this teach many young law students how to read a case, it will significantly reduce the number of people taking the bar and eventually practicing. Once they find out how boring this shit is, they'll all go work at Goldman Sachs.
12.20.2006 12:59pm
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