A while back I reported on an experiment I was undertaking in my first-year second-semester Introduction to Intellectual Property class. For the Spring 2007 semester, the required reading consisted entirely of material from a "coursepack" I had prepared, which contained only (a) the relevant statutory material (Patent Act, Copyright Act, Lanham Act) and (b) unedited judicial opinions. [If you want to see the cases I use, my syllabi are posted here].
My idea was pretty simple. Being able to read a judicial opinion from start to finish and to figure out what it means, or even what it might mean, even though there's a lot of confusing junk in it, is an indispensable skill for any lawyer. If you are unable to do it -- and I recognize that there are lots of lawyers out there who really are unable to do it -- you are at an immense disadvantage in the practice of law (at least, in any practice that requires making legal arguments on behalf of clients); among other things, you will always be dependent on others who can do it (e.g., the authors of the treatises or hornbooks or articles or other secondary material on which you will necessarily have to rely) to do it for you, to tell you what the cases and the statutes mean. It is also very, very difficult; I have read a number of the cases that I include in my coursepack literally dozens of times, and there are still parts of them that remain inscrutable to me. Like most difficult things -- playing the piano, reading and understanding 17th century poetry, surfing -- it requires practice, and lots of it; the more you do it, the better you get at doing it.
You'd think, then, that we'd give our students lots and lots of practice, and lots and lots of help and guidance while they're practicing, to help them master this critically important skill. But we don't. In fact, we give them hardly any practice, and hardly any help and guidance, at all. All throughout law school we feed them a steady diet of edited, pre-digested cases, with all the "confusing stuff" -- the stuff that just "gets in the way" of their learning the work-for-hire doctrine, or the elements of the patent infringement claim, or whatever it is we're trying to teach them -- taken out. All of the stuff that makes it hard to figure out what's going on. But that's precisely the point: it is hard. So how in God's name are they ever going to learn how to do it if they never do it?
If you're not familiar with legal education, you might think I was exaggerating, or even joking -- but I'm not. It's as though we were teaching graduate students in, say, 17th century English literature, and we had them read only edited, "bowdlerized" versions of Milton's work -- hey, you don't really need to read Book II of Paradise Lost to get the "important stuff," and it'll just confuse you if you do.
Students do, it's true, get exposure to complete, unedited opinions when they're doing research -- for papers, or for law review-type assignments, or the like. But except for one class (typically) on "Research & Writing," they are expected to do that work entirely on their own, without any real help from people (like their professors) who actually know how to do it. Sink, or swim. Many sink.
I've now been doing this for 3 semesters, in two different classes (Intro to IP and Copyright Law), and while assessing the effectiveness of something like this is very difficult, here's my take on how the experiment has been going. I'd give it somewhere between a B and a B+. Good, but could be better. I'm pretty sure I'm on the right track, and that the basic idea is a good one, though I'm not entirely certain yet that my implementation is as good as it should be.
I'm (pretty) certain that, by the end of the semester, (pretty much all of) the students are a lot better at being able to sit down and read a case through and extract meaning from it. They are, at least, not nearly as terrified of the the task as they are at the start of the semester -- a good thing. They even start to take for granted their ability to do that -- a very good thing; by the last few classes, they no longer find it odd that we can have a pretty intelligent discussion about trademark law based just upon their having read three or four of the key cases.
I'm also pretty certain that they've gotten better at managing their own confusion and ignorance -- something I regard as one of the truly critical skills a lawyer needs to develop. You never know all that you need to know, in the law -- "it depends" is always the correct answer, to every question. You never have enough facts, and you never know all you need to know about the law. Never. So being a good lawyer means knowing what you know, and knowing what you don't know, and where the line is. So it's a good thing for students to see that while they don't understand what's going on in some parts of KSR v Teleflex -- nobody understands what's going on in some parts of KSR v. Teleflex -- they can still extract lots and lots of useful information about patent law from the opinion. Know what you know, and know what you don't know.
I think they get better at skimming -- at figuring out which parts of an opinion are critical and which are not, which parts you really have in order to understand to understand the court's judgment and which you don't (which, incidentally, means they get better at figuring out what's a "holding" and what's "dicta" . . .). In my experience, many students, when they're doing research for a paper, have an insanely low threshold for reading cases; they cannot even imagine that one might have to read thirty or forty cases to really understand how the Supreme Court applies, say, the doctrine of "strict scrutiny" in First Amendment cases. That would take FOREVER!! But only if you're really slow at it, as most of them are. They have to learn how to get fast(er), and I think this experiment is helping them.
They also start to understand that what a court says (and the meaning of what it has said) always depends on the "posture" of the case, and (for appellate courts) on the the standard of review.
All of that I kind of expected. But there was an unexpected benefit as well. One thing I was nervous about was the obvious need to reduce the total number of cases the class would be reading. I tried to select cases that don't have too much "confusing junk" in them, but even so it's hard work for them to get through the opinions, and I can only assign one or two per class. I was worried that their understanding of the substantive subject matter -- the nuts and bolts of IP law -- would suffer as a result. But I think the opposite may well be true. Casebooks edit out not only the "confusing stuff" but also the repetitive stuff; because the American Geophysical Union v Texaco case is in the "fair use" section of the Casebook, the court's discussion of copyright ownership, or the scope of the reproduction right, will probably be omitted as having been covered elsewhere in the book. But it turns out -- somewhat to my surprise -- that the repetitive stuff is enormously helpful. It's one thing to read, in the section on "copyright infringement," that the plaintiff has to prove "copying" and "substantial similarity in protected material" in order to prevail, and to try to understand what that means. It's quite another thing to read that in every case, over and over again, the same basic formulation of the elements of the copyright claim. And to notice that while the basic formulation stays pretty much the same, different courts, in different cases, might articulate the rule somewhat differently -- hmmm, what's up with that? I could be wrong, but I think my students understand the copyright infringement "test" more thoroughly for having encountered it so many times than they did when we focused on it just for a couple of classes.
It's a lot more work this way -- for the students, and for me. Some of that confusing stuff really is damned confusing, and we have to spend lots of our class time trying to sort it out. But I think I'm sticking with it.