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On teaching law:

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.

ann non (mail):
I think you're correct that this skill isn't taught well in most law schools. This is why law firms have always valued judicial law clerks. They do read those 30 or 40 cases for every point of law. By the end of the year they can do it very quickly.
5.17.2008 4:59pm
Mike& (mail):
But it turns out -- somewhat to my surprise -- that the repetitive stuff is enormously helpful.... 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?


This is exactly right.

It's also interesting to see rule statements spun, or to see elements of a rule statement omitted in order to reach a desired result. Just a twist here or there and you can reach an entirely different result using a "legal rule."

I think your approach is great.

But if every teacher did it, students would never get all of their work done.
5.17.2008 5:17pm
Snarky:
I think you are 100% right to be taking this approach.

When I was a student, what I hated most was reading edited opinions. I learned much more from unedited opinions and enjoyed them a lot more to boot.
5.17.2008 5:18pm
Snarky:

But if every teacher did it, students would never get all of their work done.


You are assuming that the same number of cases would be assigned.

Also, I think it is well worth it to explore a little less doctrine in order to get the sort of view of the law that you get from reading full unedited cases.

What do you think the student is going to remember years later? Something that was covered in depth or something that was covered more superficially because you just had to move on to cover more black letter law.

I really wish all law school classed took Post's approach.
5.17.2008 5:22pm
Jim at FSU (mail):
I never understood the idea of editing opinions.

What was so confusing about KSR v Teleflex?
5.17.2008 5:22pm
Dave N (mail):
This goes hand in hand with my argument that an area that law schools neglect and teach abysmally is legal research and writing.

At least at my law school (University of Utah, circa 1990), the teaching assistants (3rd year law students) with unproven writing skills of their own were supposed to help us poor ILs understand legal writing.

So what we learned were bad habits, bad style, and bad writing. MY TA actually was upset when I refused to put "Comes Now" in a legal pleading. I asked him why and he had no good answer.

I left that course with a bad taste in my mouth. Now, had it actually been practical and treated by the law school as something other than afterthought, I may have learned something--rather than having to teach myself.
5.17.2008 5:23pm
Sean M:
It's likely a breadth/depth issue. Law school would like to teach widely and deeply, but it is hard to do both in the confines of 1.5 hour a class that meets two, three times a week.

The answer is either to read less cases better or read more cases more superficially. The former allows better analytical understanding of the rules and vagaries of the rules, but the latter allows more examination of different fact patterns on the same issues.

What's the answer? I'm not sure.
5.17.2008 5:24pm
OrinKerr:
David,

I don't think I understand the skill that is being taught. Is the skill how to read through a long document to find the relevant section? If so, is that really a skill that law schools need to teach? Students develop these skills whenever they read; if someone surfs the web or picks up a newspaper, the task of reading is partly the task of filtering through the irrelevant stuff to get to what the reader is looking for. Or so it seems to me.

It may be that law schools don't teach this skill specifically, and some lawyers can't do it well. But I would think that's because schools don't need to teach it, and the lawyers who can't do it probably can't be taught how to do it well.
5.17.2008 5:25pm
joe (mail):
So, it is a practicum - a bit like "reading law." It is all too common for a graduate of a top tier law school to have no clue how to actually practice law. You are offering a short apprenticeship, and I think this is a good idea. I had one seminar in law school in which I did something like this - in the role of a supreme court justice to render opinions as he would or did. The best time I ever had.

It is like learning to work word problems in math - having to sift out the extraneous material to understand the actual parameters of the problem. And, as you said, it reveals one's level of tolerance for ambiguity. If it helps to increase that tolerance, you are performing a signal service.
5.17.2008 5:27pm
Jay:
But haven't you ever been tempted to announce yourself on entering a room with a hearty "Comes Now, Dave N!"?
5.17.2008 5:29pm
Dave N (mail):
Jay,

Nope. Even though I appreciate the juvenile humor some see in "Comes, Now" it still ranks among my top legal writing pet peeves--right up there with ___ U.S. ___ as a citation (which the Bluebook will tell you is ALWAYS improper).
5.17.2008 5:33pm
TerrencePhilip:
Well, I am intrigued by the idea, simply because it brings the focus entirely on the primary materials and the class discussion. But like prof. Kerr I am not sure what it adds to have entire cases to go through versus edited versions. Very often what the casebooks edit out are irrelevant discussions (i.e. stuff about standing, or a procedural matter, that might be irrelevant to the substantive issue the class is studying).
5.17.2008 5:41pm
Larry Rosenthal (mail):
In my view, there is a skill to finding the holding, or the key reasoning, in an unedited opinion. Ordinary reading does not, I think, develop the skill to the same degree, since most ordinary writing, of course, is not performed within a system of common law adjudication. Separating wheat from chaff in a system of adjudication governed by principles of stare decisis is different then separating wheat from chaff in other kinds of writing.

I have been unwilling to abandon casebooks because of my concern that exclusive reliance on unedited opinions is just too inefficient. And, of course, some casebooks contain enormously valuable materials aside from the edited opinions. Still, I use a substantial number of unedited opinions in my classes in an effort to develop this skill.

Larry Rosenthal
Chapman University School of Law
5.17.2008 6:23pm
Tern (mail):
I think it is a good idea. I didn't really develop that skill until I interned with an administrative court for a year.

IMO, I think that what you are trying to teach them (a useful, practical skill), is probably more useful than the substantive learning of your class. You can't do much more in a law school course than give a basic overview of a part of the law.
5.17.2008 6:33pm
DDG:
You pick this skill up pretty quickly in practice. And it frequently makes more sense to start with a treatise, read "around" the topic and then dive into the cases. Teaching someone patent law from just the cases and the statutes is, well, something I wouldn't advise.

Which cases do you teach for patent law?
5.17.2008 6:33pm
Jon Rowe (mail) (www):
I had Prof. Post's class at Temple in Spring, I think it was 2000. For me -- and this is just me, not other folks -- when I'm overwhelmed with reading like in law school, I learn better by not doing more reading, but more writing in class -- taking notes like a stenographer, never missing class, not letting my mind wander. And then typing the notes into an outline. I still have some of those outlines saved because as a professor of law at at the undergraduate level who teaches a variety of different subjects, those notes come in handy when preparing my own lectures and class plans. Here are the notes I have from American Geophysical Union v. Texaco, Inc. This was learned NOT by briefing the case, but by coming to class, listening and taking notes and then writing what I found relevant from those notes into an outline:


American Geophysical Union v. Texaco, Inc. Texaco subscribed to a number of scientific journals. The company encouraged researchers to take advantage of research and copy from journals to use their work. A number of the publishers of those journals sued Texaco. There was no question that copying was going on. The only question was whether Texaco was making fair use of those journals. The court looked closely at the four statutory factors.

1) Purpose and Character of the Use- Texaco is commercial/ for profit. Texaco argued that the research they did served the public good. Ultimately research is one of the purposes favored by the fair use doctrine. However, the fact that Texaco was a for-profit organization weighed heavily against the company on this factor.

2) Nature of the Copyrighted Work- These are scientific articles. Texaco argued that the articles are primarily purely factual information, and that purely factual information is not protected. Thus, much of this work is only thinly protected by copyright. Texaco argues that this makes the use more fair than if Texaco were copying say, artwork. The court agrees.

3) The Amount and Substantiality of the Portion Used- Texaco copied the entire article. They paid a subscription and owned the copy. When arguing for fair use, it is better off it you are not taking the whole thing. They didn't copy the whole journal, however. They copied the whole article.

4) Effect on Market or Value- Texaco argues that there is no effect on the market. They argued that there was no real market for these articles and no one in the general population would buy less of these journals because of what Texaco was doing. The publishers argued that additional subscriptions would have to be sold if this copying wasn't going on. Ultimately, the court agreed with the publisher's analysis on this prong and this greatly helped them to win the case.
5.17.2008 7:14pm
Mike& (mail):
I think one problem with Post's approach (which I like, btw) is that it turns a doctrine class into a "legal processes" type of class.

It's great seeing how different courts state different permeations of the rule statements to get different results. But isn't that a broad subject rather than a narrow one?

I don't think that sinks the ship since so few classes focus on judicial decision making outside of the political cases in con law. Why not get that sort of education in at least one course? It's pretty neat and very educational seeing a court manipulate a rule statement to reach, say, a pro-insurance company result in an ordinary policy coverage case.

It's a good lesson that even in "hard law" cases like insurance coverage disputes, judges often have an agenda. Teaching this is part of the educational process; and it's something not taught often or well enough.
5.17.2008 7:25pm
HandstandMan:
I like Post's approach, myself. He's exactly right when he says that reading the same rule statements over and over again in unedited cases helps you gain familiarity with the rule. My Property professor basically had us read full cases. It can be bewildering at first, because you're reading things that you won't actually study in more depth until later on, but when you arrive at that part of the course, you're much more prepared to handle it and integrate it with the rest of what you've learned. That, at least, was my experience.

And I think Prof. Kerr is completely wrong when he says reading an unedited case is like reading anything, insofar as it involves the same sifting skills. I have to agree with Larry Rosenthal on that point. If cases read like essays, or long investigative news reports, or really anything other than cases, then perhaps Prof. Kerr would be right. But cases aren't any of those things.

Over the course of your first year in law school, you get more comfortable with reading cases at all (in the casebooks.) What took you hours to slog through your first week takes you 20 minutes in your last week. And we're talking edited cases.

Just as you develop a skill in reading those, I think you develop certain skills in wading through full, unedited opinions.

I hope Post continues to use this method, because I think he's doing his students an important service.
5.17.2008 7:48pm
Wacky Hermit (mail) (www):
I was going to mention the math word problem connection, but Joe beat me to it. So I'll just add that as a math teacher I've seen an increasing number of students who are untrained in applying ANY subject they've learned in school to real life; it's a product of the way high school is taught nowadays, and it is not exclusive to either math or law. College is starting to be the same way too.
5.17.2008 7:51pm
John R. Mayne (mail):


You never know all that you need to know, in the law -- "it depends" is always the correct answer, to every question.



Nuh-uh. "Is theft of a car by false pretenses covered under California Vehicle Code section 10851?"

"If you substitute in as attorney on a case that was vertically assigned to a judge in a direct calendaring system a year ago, can you file a peremptory challenge against the judge?"

These questions, and millions more, have right answers. Many answers do depend - but not nearly all of them.

--JRM
5.17.2008 7:54pm
OrinKerr:
In my view, there is a skill to finding the holding, or the key reasoning, in an unedited opinion. Ordinary reading does not, I think, develop the skill to the same degree, since most ordinary writing, of course, is not performed within a system of common law adjudication. Separating wheat from chaff in a system of adjudication governed by principles of stare decisis is different then separating wheat from chaff in other kinds of writing.

Maybe I just misunderstand what David is doing, or have a different understanding than other readers.

In my experience, the parts that are normally edited out of casebooks are the parts that have nothing to do with the purpose of teaching the case. So there may be a crim pro case that starts with a jurisdictional issue, then covers a Miranda issue, then turns to the Fourth Amendment. It sounds to me that if David were teaching a Fourth Amendment class, he would assign the full case, including the jurisdictional issue and the Miranda issue. Is that what he has in mind, and if so, why does that involve a different kind of separating wheat from chaffe?

Alternatively, maybe the point is that if there is a Fourth Amendment section that drones on for 15 pages thanks to a less -than-skilled judge/clerk. Perhaps the idea is that David would assign the full 15 pages rather than just pick the 4 pages that are really essential? If so, I suppose there is some value in it -- although in my view it comes at the significant cost of boring students and taking up time that could be spent on more cases.
5.17.2008 8:01pm
Bengoshi (mail):
As a practicing litigator, its pretty disturbing too hear students are NOT reading entire cases.

Perhaps thats why so many new lawyers, coming into my firm, speak and write in headnotes and -- my real pet peave -- the string cite with parentheticals.

For me there is no better way to drive a legal point home for a judge, and demonstrate to a court that a case is on all "fours" with issues at hand, than a full discussion of a case on point: facts, issues, holding and reasoning.

And why are cases so hard to read (putting aside patent)? Its actually one of the great joys of law to dust off an old equity case from 1909 and work through its sometimes archaic prose and see a _story_ there and that people back then were faced with many of the same issues, dilemmas, sometimes trickery, as I see every day in modern times.

Cases tell a story and that's what I tell the associates in my firm to do when they write: tell the judge a story, make it interesting, and use a case and _its_ story to bring your case to life.

Too often all I get is canned law, string cites and formulaic writing (and worse, just "soap box" ramblings).

The beauty of the common law is the written decision; unfortunately, we appear to be heading closer and closer to a (boring) civil law style. Bengoshi
5.17.2008 8:07pm
theobromophile (www):
It makes sense to have 1Ls read edited cases, as they are really new to the whole case study method. They also don't have a great deal of background in other areas, so a case that is given to them for, say, Fourth Amendment issues and contained Miranda issues as well would just confuse a lot of them.

I had a professor last semester who had us read nothing but unedited cases. He said we would need to do it as attorneys, and wouldn't have someone to edit them down for us. It did get easier, eventually. Personally, I liked the idea.

He also had us read, every so often, the cases that were cited as precedent and report back as to whether or not those cases stood for the proposition for which they were cited. Very often, it was not the case. I learned a lot from that experience.

One concession he made, after the class was over (sadly for us) was to add an extra credit hour, which acknolwedges the fact that there was a lot of reading.
5.17.2008 8:19pm
Chris Newman (mail):
Thanks for the interesting post and for linking your syllabus. I'm going to be teaching copyright in the fall for the first time and definitely want to assign some unedited cases even if I don't go full immersion like you this first time out. It seems to me that you could (and perhaps ideally should) really take this approach a step further. For each class, you assign a hypothetical problem involving whatever doctrinal point you're teaching, and then give the students 2-4 unedited cases to read and tell them their job is to figure out the answer to the problem. Note that this isn't all that different from common Socratic method now, except that usually the prof just comes up with the hypos in class and the students try to apply what they've read. But maybe assigning a slightly more elaborate hypo (almost but not quite like an exam question) along with the reading would really be better. I at least certainly find that I inevitably read cases with more attention to nuance and more retention when I read them because I'm actively trying to find the answer to a particular problem, not just because I want to "learn" what the case holds. This would have the added benefit of coming about as close to real legal practice as you can simulate in a doctrinal class (you're just doing the research for them), and I suspect the students would learn more. Thoughts?
5.17.2008 9:00pm
BDP (mail):
Great discussion. I'm going to go a bit off topic. I'm a partner in a mid-sized law firm and before that was an assistant prosecutor and tried about 40-50 jury trials. In total I've been practicing law for about 13 years. Whenever people ask me what law school was like I tell them the same thing - "Other than the writing and research class you take in first year, it's all a big waste of time and money". And I really mean that.

Let me explain.

I can't think of one thing (other than the research and the writing classes) that I learned in law school that has any applicability to what I do on a daily basis to make money for myself or my firm.

For example, during 2nd year I took the required 2 semesters of "Wills and Trusts". After that year if someone would have come to me and said "Can you draft my Will?", unfortunately the answer would have been "No" because all we did was read cases and talk about various "theories" and concepts. Who the hell cares about the theory behind what constitutes a valid revocation. When you practice in the real world there's a statute that deals with it.

Luckily for me I went out while I was in school and worked for 2 law firms (at the same time) and learned more in a week than I learned in 3 years.

What law schools need to teach are practical skills. How to talk to a client. How to bill. Where to go in the courthouse to file a document. How to write a client letter. How to talk a difficult client into a settlement that makes sense. And most importantly - how to make money. I don't mean that in an unethical way. I mean how to build a practice. For example, whenever we get associatates we make sure to tell them how to become a partner - go out and get business and be good at what you do. You'd be shocked at how many young lawyers have no clue how to make themselves valuable to a firm.

It's a shame that the old "precept" or "proctor" programs that I hear about aren't around anymore.

Law school students take my advice. Unless you are at the very top of your class you're not going to come out making $150k a year. Do what you need to do in school to get the B- average but do yourself a favor and get out in the "real world" and work with a law firm, any sized-firm. Do whatever you can (pay not important) and keep your eyes and ears open. Know that hardly anything you are learning in law school (unless you are in a practicum) is worth a bucket of spit, you can forget 99% of it after the bar exam.
5.17.2008 9:17pm
An124:
One other advantage of this approach is that it puts the damned casebook publishers out of business!
5.17.2008 10:03pm
Jonathan F.:
[I]t still ranks among my top legal writing pet peeves--right up there with ___ U.S. ___ as a citation (which the Bluebook will tell you is ALWAYS improper).

True, but only because all Supreme Court opinions are for publication and will come out almost immediately in S. Ct. or U.S.L.W. anyway. But ___ F.3d ___ does have use -- it tells the reader that a recent opinion is published, even though all that is available is a Westlaw or Lexis citation.
5.17.2008 10:24pm
Jon Rowe (mail) (www):
I don't know BDP, there is something about learning all sorts of different kinds of law that is salutary in itself, even if, I would agree, it doesn't necessarily have real-world value.

Though, as Prof. Post's link to his syllabus illustrates, you don't need to pay one dime to learn the material; it's all there for free on his linked to syllabus. If you really cared enough, you could get a law school education, or an any school education, without taking one class.

Think of the scene in Good Will Hunting where Matt Damon bests the Harvard Grad. Student and said he did it for the cost of 50 cents -- the price of a Boston Public Library Card.

My friend and co-blogger Ed Brayton knows more about Con. Law and a few other related areas of law than most lawyers and he dropped out before getting his Bachelors. (So did Bill Gates).

Think of all the law blogs like Volokh and Balkinization where, if you stay current with all of their posts, (and if you have the IQ to understand them) you'll have a lawyer-like knowledge of many cutting edge areas of law.

Think of all of the colleges that are recording entire classes and posting them online. With most top colleges/professors, you can access their web pages and reading lists -- and if they have written books on their pet areas -- which most of them have -- you can learn it all for the cost of the books, articles, and the material from their reading lists, which might be nothing but the cost of an ISP if you have access to a good public library.

But in the end, I guess, self study is easier said than done.
5.17.2008 10:24pm
theobromophile (www):
One other advantage of this approach is that it puts the damned casebook publishers out of business!

Well, yes, but. My course packet for the aformentioned class cost about $300. If your school gives free Lexis or Westlaw printing, though, this can save some money.
5.17.2008 10:27pm
John Martin:
I had a few profs take this approach. All were adjuncts. A sitting State Supreme Court Justice teaching state conlaw; a commercial real estate lawyer teaching real estate; an Assistant State Atty General teaching Medical Crime/Fraud.

I appreciated reading cases from my state rather than California, New Jersey and New York, etc.


As far as practical law practice is concerned I think law schools should have one course that shows future lawyers how to file cases, note motions, serve complaints, how to "do" a default judgment, find the clerk's offices, filing by mail, filing electronically, where and when to make copies when at court, when to stamp judges names, etc.

Maybe that's what interships are supposed to teach. But mine sure didn't teach me anything like that. Of course, now I know I should have taken a work-study job with a solo instead of Summering at a fancy big law firm.

I once stood in line to file a civil case in a limited district court. The clerk looked at me like I was crazy because all the lawyers file by mail. Only folks paying their fines actually come up to the window in that court. Knowing that tidbit could have saved me some time.
5.17.2008 11:17pm
andy (mail) (www):
This is all well and good, but it'd be much better to teach students how to read the statutes that are the subject of 90%+ of federal cases.
5.18.2008 1:11am
MLS:
This approach sounds nice, but appears geared towards appellate work, and not to the actual construct and practice of IP law that demands significantly more instructional resources so that students have a firm grounding in the law itself, and not the intellectual musings of appellate courts that somehow believe they can render learned opinions without a thorough understanding of all the relevant facts giving rise to the suit in the first place.

I still cringe at Justice Souter's hypos during arguments in KSR and LG. Seriously, a garage door and a bicycle pedal. Even more so, however, I cringe at the lame responses provided by counsel that did nothing to inform the court in anything approaching a helpful and informed manner.
5.18.2008 1:14am
billb:
Jon Rowe: It doesn't help that in all but California (I think), you've still got to go to law school in order to practice as a lawyer!
5.18.2008 1:49am
George Weiss (mail) (www):
theobromophile

agreed-and those specialty course packets have no resale value (unlike most textbooks-which typically don't have new versions every single year-except the real money grubbing ones)
5.18.2008 1:49am
Dave N (mail):
Jonathon F.,

I know we are wandering far astray from Professor Post's original topic, but I don't think ___F.3d____ is particularly helpful. If a case is unpublished, then local rules will either a) forbid its citation; or b) require that you cite the unpublished case as "unpublished."

Thus, Smith v. Jones, 2008 Westlaw 12345 (9th Cir. May 15, 2008) tells me where to find it. If Smith v. Jones is unpublished, then it would be 2008 Westlaw 12345 (9th Cir. May 15, 2008) (unpublished disposition).

And yes, if opposing counsel cites to just the slip opinion or to a Westlaw or Lexis cite, I will be double checking that case myself, just to ensure it is properly cited (if it is allowed to be cited at all).
5.18.2008 1:58am
Avatar (mail):
It occurs to me that the problem isn't in having students read through undecipherable cases in order to glean an understanding of their holdings, so much as there are cases with important holdings that are undecipherable in the first place. Unfortunately, given the current court system, there just isn't any way to go through and clean up that kind of ugly writing after the fact, unless someone else files the same kind of suit and a judge in that case writes up a clear decision.

Given that part of the lawyer's job is going to involve reading through crappy case law, it makes some sense to introduce students to said crappy case law before they get into practice...
5.18.2008 2:12am
Thief (mail) (www):
Note to Constitutional Law Professors: THE ABOVE ADVICE DOES NOT APPLY TO YOU. Supreme Court Justices are incapable of rendering a decision in less than 100 pages. Good editing of Constitutional cases is essential, so your students aren't picking through 99.75 pages, or even 8.75 pages, of analysis to find the .25 page statement of the rule. (Looking in your direction, Prof. Chemerinsky...)
5.18.2008 2:53am
alias:

I don't think I understand the skill that is being taught. Is the skill how to read through a long document to find the relevant section? If so, is that really a skill that law schools need to teach? Students develop these skills whenever they read; if someone surfs the web or picks up a newspaper, the task of reading is partly the task of filtering through the irrelevant stuff to get to what the reader is looking for. Or so it seems to me.

As a miserable litigation associate, I can say that filtering through crap to find relevant information feels like the only skill necessary to be a lawyer in private practice. Reviewing documents and reading and writing discovery objections seem to involve very little else. Though I suppose if a law professor meant to design a class with that in mind, the class wouldn't have any law in it at all.
5.18.2008 8:29am
FantasiaWHT:
With the exception of SCOTUS opinions, I agree.

I figured this out my 1L year and started reading entire cases quite frequently, and it REALLY helped. Nothing like reading through the standard of review for summary judgment a few dozen times to really understand what was going on.

And why print out a course packet? Everything you need is available free online. I've stopped buying all the recombinations of federal rules &statutes that every professor thinks I need. Sorry, Dean, I really don't need to purchase another copy of the FRCP when I've gotten 7 or 8 free already. Same thing with the tax code. Every time the prof mentioned a code section, I'd make a note, get a copy of it from Cornell, and save it in a separate section in my OneNote class notes.
5.18.2008 9:26am
Bama 1L:
But isn't Professor Kerr right? Isn't rapid and effective critical reading the main skill you were supposed to develop in college? I mean, that's the real your history professor assigned you a whole monograph on women in ancient Rome and expected you to be able to answer the dreaded question, "What is the thesis of this book?"

Is the problem that law students aren't coming in with this skill?
5.18.2008 9:36am
Bama 1L:
Also, a lot of my friends and I are in the habit of consulting entire cases. If there is some issue in the full opinion that doesn't have to do with whatever we are learning, we can pretty easily isolate and skip it--particularly with more recent opinions, which tend to be nicely subdivided. With Westlaw and LexisNexis, it's much easier to access the full text than to lug your casebook around. Free printing is nice, too.

By the way, it's pretty obvious when the professor has not read the full case or the opinion below. Yet another reason to ban the internet from classroom!
5.18.2008 9:41am
Zywicki (mail):
"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"

Am I the only one who instantly thought of Donald Sutherland in Animal House when I saw this juxtaposition of "I'm not joking" with "Milton's work":

[None of his literature students are paying attention]
Jennings: Don't write this down, but I find Milton probably as boring as you find Milton. Mrs. Milton found him boring too. He's a little bit long-winded, he doesn't translate very well into our generation, and his jokes are terrible.
[Bell rings, students rise to leave]
Jennings: But that doesn't relieve you of your responsibility for this material. Now I'm waiting for reports from some of you... Listen, I'm not joking. This is my job!
5.18.2008 12:43pm
Jon Rowe (mail) (www):
One of the best professor characters ever. That guy is my idol.
5.18.2008 1:00pm
zippypinhead:
Having practiced and worked with students and young law graduates for more years than I'd care to admit, I think this approach is long overdue. For example, I recall a bright young 1L summer legal intern from Harvard Law who confessed that, upon being tasked with her first research assignment, she did not know how to filter her raw Westlaw search results into coherent work product. To her credit, she finally asked for guidance in analyzing the opinions that the computer told her were on point. She got bonus points for honesty, tho not for effective return on her tuition dollars.

Although I'm not optimistic that we're going to see a groundswell of Professor Post's approach anytime soon. As long as there's an economic model that encourages law professors to churn out huge, expensive tomes chock full of edited opinions, the system is not going to change. At the law school I attended, many of our casebooks were edited by our own professors (something that I suspect is fairly common at top-tier schools). I recall one candidly admitting that he hated the grind of editing court opinions and posing questions, but that he needed to continually produce new editions and supplements to obsolete his previous work, lest his royalty revenues -- which were apparently essential to his alimony and child support payments, not to mention general lifestyle -- were to drop from competition from used casebook sales.
5.18.2008 1:19pm
theobromophile (www):
Isn't rapid and effective critical reading the main skill you were supposed to develop in college?

No.

Maybe if you were a history major or an English major, it was the main skill you were supposed to develop. The nerdy engineers among us learned an awful lot of other skills - analytical thinking, inductive reasoning, more analytical thinking, and how to teach ourselves to learn - but didn't do much that would help me dissect a long case. My Greek classes taught me a lot that was very helpful for statutory work, but again, "effective critical reading" would hardly be the main component thereof.
5.18.2008 1:45pm
Bama 1L:
Maybe if you were a history major or an English major, it was the main skill you were supposed to develop.

Agreed. Of course, these and similar arts &sciences majors are the traditional feeders to law school. Graduates of business and engineering schools heading off to law school is a pretty recent thing, isn't it?

This makes me wonder how much adaptation law schools have done to their curricula to accommodate students from less reading-intensive backgrounds.
5.18.2008 3:25pm
theobromophile (www):
This makes me wonder how much adaptation law schools have done to their curricula to accommodate students from less reading-intensive backgrounds.

I think that my type manages without accomodations or adaptations to the curriculum. Just as nerds may also be jocks, engineers probably know how to read... especially the ones who have the inclination to go to law school.
5.18.2008 8:19pm
blabla (mail):
I'm with Orin on this one. Reading unedited cases is not that hard. It's not that difficult to look at an unedited case and pick out which parts involve the issue that you're dealing with. We (I'm a 3L) don't need to be taught how to do this, and we don't need to be taught how to skim. If someone hasn't learned how to skim after having been in school for 20 years, there's nothing you can do for them.
5.18.2008 8:46pm
BDP (mail):
Jim Rowe wrote:

I don't know BDP, there is something about learning all sorts of different kinds of law that is salutary in itself, even if, I would agree, it doesn't necessarily have real-world value.

I agree Jim that it's salutary. My main problem is that they charged me an arm and a leg (which I'm still paying back) for something that has no real-world value.

Jim - here's something I'd be curious to hear your thoughts about (yes, I know the grammar I just used is terrible):

I'ts my position that (all other things being equal) a kid who goes to law school for one year (the 1st one) and then works as an intern/clerk (or whatever you want to call it) for two years he or she will end up being a better lawyer than the person who spends the next two years going to law school.

Not only that, he or she will be of far more value to a potential employer for one simple reason - they're more able to turn a profit for the firm, and ultimately, will be in a better position build their own practice.
5.18.2008 9:14pm
Jon Rowe (mail) (www):
It's "Jon" Rowe. "Jim" is my father.

You may be right, in the practical world. Keep in mind that not having an advanced degree that is technically a "doctorate" might harm the prestige of the profession. But, knowledge can still be tested for at the bar exam level. Didn't someone point out that in CA you don't even need a JD to sit for the bar? Wouldn't that lead to a market driven solutions in the CA lawyer market against the JD if the three year JD is inefficient because of all that theory and not enough practice? I'm a libertarian so I'm supposed to be against things like state or quasi-state licenses. But...I really don't think America needs more lawyers.
5.18.2008 9:24pm
BDP (mail):
Jon Rowe wrote:


You may be right, in the practical world. Keep in mind that not having an advanced degree that is technically a "doctorate" might harm the prestige of the profession. But, knowledge can still be tested for at the bar exam level.



"Harm the prestige"? In the general pubilc's mind, can it go anywhere but up? No, I know what you mean.

As to testing knowledge at the bar exam level - are you serious? It's the single biggest waste I can imagine. None of it has anything to do w/ the practice of law. One of our new associates had his Bar Review practice book and I had him show me a practice test. Out of 50 questions I got less than 1/2 right. Why? Because it has nothing to do w/ what lawyers do on a daily basis and has no relation to the practice of law.

Seriously, do you really think that the bar exam (I'm speaking of the Multi-state portion) in any way tests anything other than the ability to memorize useless information that you can forget the next day and not have it matter one bit on your ability to do the job.

Unlike the tests doctors have to take, they actually have to remember that stuff in their daily life.

I've got the libertarian bent as well. Let the consumer decide who they want to hire - whether or not they went to law school or passed a useless exam. The market would sort out the good from the bad.
5.18.2008 11:45pm
Alligator:
I've had two professors who have done this and I think it's great. Plus, it saves me a lot of money. I have never been in a class that covered more than 75 percent of the casebook and most have barely covered 50 percent. In this last semester, I found that one of my casebooks was so heavily edited that some opinions omitted important details, so I began reading the full opinions for significant/landmark cases and it was tremendously helpful.

I do think that this approach is tremendously helpful in teaching law students to quickly identify the relevant parts of an opinion. When considered in broad terms, this is a skill that should have been acquired in college but, like nearly everything in law school, using this basic skill in a legal context requires practice. I'd be delighted to see casebooks disappear after the first year of law school.
5.19.2008 1:25am
Rochesterian (mail):
Bama 1l SAID:
Also, a lot of my friends and I are in the habit of consulting entire cases. If there is some issue in the full opinion that doesn't have to do with whatever we are learning, we can pretty easily isolate and skip it--particularly with more recent opinions, which tend to be nicely subdivided. With Westlaw and LexisNexis, it's much easier to access the full text than to lug your casebook around. Free printing is nice, too.

Bama,
Stop torturing yourself.
Get your hands on the "Official Teachers Handbook" on whatever course you are siged up for.

(1) Read, re-read the entire case assigned.

(2) Open the "handbook" and read the section that discusses the case. Make a few notes from the handbook, go to class.

(3) Sit back and wait for the prof to query the question the handbook tells your prof to ask.

(4) Wait for the other students to struggle to get the prof's question wrong.

(5) Raise you hand and give the answer the handbook tells the professor is the correct one. They ALWAYS say EXACTLY CORRECT, and move on.

PEACE
5.24.2008 10:48pm