There's been an interesting discussion in regard to my posting about my "experiment" in using unedited judicial opinions in my classes; though there are lots of interesting questions raised, one in particular, from fellow-blogger Orin Kerr, requires a response. Orin wrote:
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.
I couldn't disagree more.
This characterization makes the skill sound trivial - "reading through a long document to find the relevant section." I suppose the skill I'm talking about can be characterized that way - but that's like saying that becoming a scientist is just "being able to sift through lots of irrelevant data to find the patterns." Yes, a critical part of becoming a lawyer is being able to read through a long document - and not any old long document, but a very particular kind of long document, a "judicial opinion" - to "find the relevant section," as you put it. And then, once you've found it, to figure out what the court is saying there and how it bears on whatever it is you're trying to figure out.
Pick any of the cases on my IP syllabus and summarize it for me in a paragraph or two - who won? what was the issue? how did the court resolve it? on what point are the dissenters and the majority disagreeing? were there any facts that were critical to the decision? how were prior cases on point distinguished? etc. I think good lawyers have to be able to do that - maybe not in two perfectly formed paragraphs, but at least in their heads. And they have to be able to do it, as the British say, "at pace" - really fast, one after another after another. Answering virtually any legal question of substance - how does "strict scrutiny" apply to a high school's dismissal of a student for having posted offensive passages on her myspace page? is a work prepared by an employee on his "break time" with materials furnished by his employer a "work for hire"? Is something that appears in a "private" space on the Internet a "printed publication" within the meaning of section 102 of the Patent Act? etc. etc. etc. - means reading lots and lots of cases and figuring out what they mean - whether they're relevant, how they're relevant, how the points they're making can be used in the argument you want to make (or can be used to make the opposing argument).
I'm pretty sure that you, Orin, are damned good at that - perhaps so good that you don't even see any more how difficult a task that is. I'm good at it, too. It is, most emphatically, not something that people just "develop whenever they read," as you suggest. Knowing how to skim through an article in the New York Times to "find the relevant sections" there will help, but it will not in and of itself tell you what the holding is in Arnstein v. Porter. When students walk in the door of any law school, they don't know the first thing about how to do it, and it would be entirely unreasonable for us to expect that they do.
That's the skill I was talking about.
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Right, but in my science classes, the professors and the textbook would often explain the scientific principle in a straightforward manner. Sometimes there would be a Socratic thought experiment or a demonstration, but in explaining Newton's equations, my physics professor didn't give me Newton's laboratory notebooks or a story about his life and then ask me what I thought about the relationship between force, mass and acceleration.
A few disorganized thoughts:
(1) I don't recall a single class in law school where this skill was explicitly taught.
(2) Bits and pieces of this skill were taught through the first year of law school: My introductory "Elements of Law" course explained the concepts of "holding" and "dicta," and also explained the various methods of statutory interpretation (that are useful in understanding *why* a judge is writing the non-holding parts of an opinion). In some other first-year courses, professors would sometimes assign full cases for reading because they weren't in the text (probably out of laziness rather than for educational reasons). Obviously, we had to figure out which parts of those cases were important for the course. In my 2nd year Con Law course, the professor stated on the first day of class that she would rather have us read the full cases rather than use the textbook.
(3) I would say that the one class in which this skill was absolutely necessary to successfully completing the course was my 1st year Legal Writing course. Because the purpose of the course is to write on an undecided and unclear area of the law, it's almost impossible to succeed if you can't figure out how to find nuggets of gold buried inside of lengthy legal opinions.
(4) Although David isn't suggesting this, I think it's a bad idea to mostly assign full cases in First Year (or other introductory) classes. The point behind these classes is to learn many rules very quickly. David is correct that learning to find the point of a length case is an important tool, but it's a tool better taught in Legal Writing and more advanced classes, where analysis is the skill being taught rather than structure and rules.
I think we had to read the full Marbury v. Madison opinion in my first year. I knew from my elementary school history classes about the importance of the case, but reading the case itself is an incredibly difficult exercise in legal understanding. It just doesn't make sense without the historical context that my professor gave after we had all tried to trudge through it on our own.
This was a fascinating exercise, but there simply isn't time to spend 1.5 contracts, torts, or property classes on a single case.
How often do you need to read through someone's laboratory notebooks as part of your work?
Lots of people write software for computer without knowing the nitty-gritty details of how they work. They might know something about "registers" but probably have never even pondered an "n-p-n gate." But the people who build and design computers need to know all that.
I'm not sure how well it breaks down for lawyers. I can imagine that lots of lawyers never need to read real cases, but enough lawyers do that it makes sense for it to be a recommended (or even required) course.
But additionally, when I put together a packet, I edit the cases, not so much because I think the students couldn't handle a complete case, but because there are only certain parts I want to talk about. Cutting out the other stuff lets them focus their limited reading time where I want to focus during class. I should note though that I edit lightly. In particular, I usually leave almost the entire fact section intact. On rare occasions where the facts are particularly long and not terribly relevant, I summarize them myself in brackets.
One thing that does get cut out of textbooks that I think even first-years could stand seeing is citations. Not because they are going to read the citations, but because it would be useful for them to see what sentences require support, which don't, and when to use parentheticals. I try to leave citations in my case-edits as well, although I often delete multiple cites.
It is emphatically untrue, however, that all law students who CAN read critically in other, unrelated fields will ipso facto be able to do it in law school without some guidamce.
That said, I've never tried DP's teaching method, principally because it seems to me that it must have either one or both of the following effects:
1. It must greatly increase the overall reading load for the course; and/or
2. It must significantly restrict the breadth of the course's coverage.
Imagine, for example, Con Law, which I teach on occasion. Can we really expect students to pore over a 100-page plus decision like, say, Hamdan, even if we devote two classes to the single case? If the course is but 4 credits in the the average student's 14-credit load, how can we put that much on them. In my experience, they have trouble keeping up with a 30-page casebook assignment per class.
In tax, on the other hand, I've often been tempted to assign simply sections of the Code, some regs, and various cases/adminstrative rulings, along with my problem sets, and no text of any sort. I'll probably give it a go one of these terms soon.
I appreciate the response, and maybe I am just being dense, but I still don't understand why you think the skill of reading cases is fundamentally different than the skill of reading other things. You clearly believe that reading cases is fundamentally different than reading other things, but I'm just not sure why you think that.
Orin: Here's why. Reading an article in the NY Times magazine, and reading a judicial opinion, are fundamentally different because the article is not "the law" in any meaningful sense, but the opinion is. You won't be citing to the article as binding precedent in the future; but you can do that with the opinion. It would be absurd to talk about the "holding" of the article, or the "dicta" in there, because that's not how we are going to use NY Times magazine articles down the road. Propositions or statements don't become true just by virtue of being in the NY Times, but propositions or statements do become true by virtue of appearing in judicial opinions. There is nothing remotely resembling the "procedural posture" of a NY Times article to uncover, and yet if you don't uncover the procedural posture of a judicial opinion, you're likely to be missing a great deal of its meaning.
Here's a test: take someone who is very skilled at reading NY Times magazine articles -- my wife, say. She's not a lawyer, but she's real smart, and she can skim through a complicated NY Times magazine article and "get it" as well as anyone. Give her Arnstein vs. Porter and ask her what's going on, and I guarantee you (a) it will take her at least a couple of hours, and (b) she'll have no idea.
Perhaps you think that students get all they need of this in their first semester writing & research class, and in tips on how to brief a case. I agree wholeheartedly that those are very useful introductions to the art. They should be practicing it throughout the remainder of their law school careers.
DavidP
To be clear, I am not suggesting a move away from the case method; as the solo author of one casebook and the co-author of another, I am happy to agree that reading cases and analyzing their meaning is properly the primary task of the law student. Every one of my classes is about reading cases and performing just the kind of analysis you suggest. And at least at GW, developing the skills to read cases is a core component of the first semester of legal education. Students receive substantial training in how to brief cases -- answering just the kinds of questions that you raise in your post.
I thought the question here was narrower; to teach that skill of how to read cases, is it a good use of a student's time to assign them unedited cases? On balance, does assigning edited cases (instead of unedited cases) help students develop the legal skills you mention or does it hurt them?
You suggest at the end that our disagreement might just boil down to you being sensitive to student needs and me being unaware of them. But you have no evidence for this, and the suggestion overlooks what I think is my pretty clear record of concern about teaching incoming law students how to read cases -- including, among other things, having authored the essay "How to Read A Legal Opinion: A Guide for Incoming Law Students," originally posted on the web in 2005 and recently published in the Green Bag.
JHA
Sure, there is some value to reading "lots and lots of cases." But you don't appear to be assigning this- almost none of your IP classes require students to read more than a couple of cases, according to your syllabus. Maybe if the kids took it upon themselves to skim through 20 cases that rely upon the important precedents you assign them, they would get a feel for your approach. (For all I know you ask them to do this but it doesn't seem to be required.)
My thought in looking at your syllabus was that your approach made sense simply because you were assigning so FEW cases to read; it would be a waste to buy a big casebook when you weren't going to read much of it. I would gather you probably place more emphasis than most on class discussion, assigning a little less reading than many professors, and students can supplement what they learn by reading treatises, outlines and the like. It's a fascinating and interesting approach. (I've often wondered whether law professors would eventually gravitate away from casebooks thanks to the internet.)
It all comes down to what you're trying to teach. You have a given amount of time, and an expectation of the time that the students will put into the class. You can give them a multitude of thin rules (out of overly-edited cases) or you can teach them to find out for themselves, after much struggle and work, the nuance and vagaries of the development of a fewer number of rules. The easier way out for the legal academy is to simply spoon-feed a large number of thinly-considered rules rather than demand (and determine) that students learn to examine the law in depth. I fear that too much of the legal academy has chosen the easy way.
What should be done? First and foremost: Smaller classes — across the board. Students learn to skip readings and skim cases when they realize that they won't be called on to participate in class, and then they cram for exams. This reinforces the "lots of thin rules" approach to the law that so ill-serves the Bar. Second, traditional (i.e., MORE) class scheduling. The "three-hour" class that meets twice a week for an hour and fifteen minutes is an absurdity. But these changes mean much more teaching work for the legal academy and less time for professors' research> These changes will require a cultural change in today's legal academy, and they will require a modification of law-school economics. Which is another way of saying that they won't happen. But for those of you law students who take the time to read the law in depth, and for those law schools that buck the trend and expect much more from your law students, the change will be worth it.
Finally, do believe that today's law students are overburdened? In particular, those of you who say "third year is a waste of time," do YOU believe that third-year students are working hard? I believe that the law school academy, for its own reasons and benefit, has permitted lax study habits and work expectations of law students. In some respects, this debate over edited vs. unedited cases is a symptom of a different problem -- empirically, how hard are law students working? It hurts us in the profession when your graduates come out and think that there's an easy way to do this job. There's not. As a lawyer, particularly as a litigator, you have to read through incredible volumes of information; reliance on a Boolean word search and highlighted search terms to find a good quote is a recipe for woefully poor legal work. For those of you in the legal academy, do your law graduates over-rely on Westlaw/Lexis in their search results? I daresay that more of you will answer "no" to this question than is accurate. That's a part of the problem here.
The good thing here is that this is a competitive profession. Those law students/young lawyers who put in the time and effort in law school, and then in practice, are usually rewarded. It's too bad that law schools seem to want to distance themselves, and their students, from this reality.
I recall once someone asked him why did we need to read the cases if the classroom discussion rarely had anything to do with the specifics of the cases we had read. He replied that learning how to read cases was a critically important skill that lawyers needed to learn. Therefore part of our training was reading lots of cases.
He could not have been more correct. I can't tell you how often I have a young associate hand me a case that he has read and highlighted only to find that the most critical part of the opinion is utterly unhighlighted, signifying that the associate complately missed the most important part of the opinion.
Now, granted, the cases we were reading in torts were usually the edited, digested versions, but either way reading cases is a skill that you cannot developed other than by reading lots of cases, and what better place to learn that than in law school.
Dan
and while judicial opinions may not be a model of clarity, nearly every modern one i've read at least breaks things down into sections by subject matter.
The on-line research services offer the option of printing only the "relevant" portions of a case and I find this option useless and dangerous. I had an associate of mine do some research for me and he returned to me "cases" that were nothing more than the "relevant" portions on the question of law. I considered this useless. (He is now an excellent attorney and partner who only downloads whole cases.)
I note that practicing attorneys have at least as much time pressure as law students (ah, those lazy, halcyon days), but they cannot afford not to read an entire case. Sometimes, I have been lucky enough in my opponents in that some apparently research cases in this manner, providing ammunition from their "own authority" on other issues in a case. The flip side of that is avoiding case citations that would do the same to me. This may be the most simple, practical reason to get in the habit of reading an entire case, rather than simply seeking the "relevant" portions.
Second, I think the entire case helps to give students a notion of the full anatomy of a lawsuit. That is, similar fact patterns are going to give rise to similar legal issues—not just the particular issue that is being taught in class. And, issues often interact with or foreclose arguments on other issues or raise particular evidentiary or procedural questions.
Third, the clearly irrelevant portions of the case expose the students (and the practicing lawyer) to other legal issues and thereby contribute to overall education. I think I have learned far more in this manner than through any mandated continuing legal education. Obscure state statutes, evidentiary questions, the quirks of appellate jurisdiction, estoppel and waiver of all kinds, attorney fee recovery, the bankruptcy stay and "reasonable measures" of damages all come to mind. Many of these subject matters are electives or, like obscure state statutes, not taught at all. And, if nothing else, these are often "refreshers" for issues you have not dealt with for a while.
That aside, the danger I see from not using full cases is the habit of not thinking in full cases, or believing that the "relevant" parts are all you need to practice. The headnoters often do not pick up every issue decided, and in my experience, have sometimes missed or mistated what the court has actually said. Perhaps an admonition not to do this at home is sufficient. Perhaps it matters much less to those not going into litigation. Perhaps the skill can be taught in a research course or early on in practice. But there is no doubt that one should never rely on a case that has not been read from beginning to end.
Supreme Court cases ought to be written in quill pen. Then cases like Hamden would be about five or ten pages long. Ditto for Parents Involved. ;)
MarkP.,
As I'm staring at six figures of student loans, I want to thank you for reminding me what it bought. Many of my classes were small - ten students, five students - and a three-hour class usually met three times a week for an hour.
I was writing my post before I refreshed and saw your post. In terms of finding the cases one wants to use you are absolutely correct in the method. Obviously I do not pore over every case that comes up in a search. A quick scan for relevance/usefulness is all they get. I am only speaking about cases I am considering for actual citation, and cases that my opponents have cited.
I recently responded to a brief in which the young lawyer on the other side repeatedly castigated our pleading on a motion to dismiss for failing to allege enough specific facts in support of the elements of our case. This confused me, until I looked at the cases that s/he was citing, which were (mostly) demurrer cases.
Not sure that piling unedited opinions on people in law school is the answer. But there is a genuine problem in practice, as people become more and more accustomed to just reading the couple sentences before and after their search hit, looking for a "rule" of the case.
I think David's on to something here. Law professors are probably almost all students who were able to pick up the skill of reading an opinion and extracting the relevant points from it without being taught how. Unfortunately, that may leave them somewhat blind to the fact that not all students are able to do the same thing without some instruction and practice. I'm not a law professor, but I have taught classes at the college level, and one thing I've always tried to keep in mind is that even if something intuitively make sense to me, that may not be true for some (or all) of my students.
In a way, I think computerized research, which often returns a gazillion cases in response to a search request, encourages fast run-throughs of cases and leads to a diminution in case-reading skills by requiring cursory review more than careful analysis.
Perhaps we're really just bickering about matters of degree, though. In particular, you say in your original post that you try to choose unedited cases that don't have too much irrelevant stuff in them. I gather you do that for precisely the reason that I think edited cases are better; you think too much irrelevant stuff is distracting and useless to assign. If so, perhaps our differences are more narrow that it appears.