Edited Versus Unedited Cases:

By Orin Kerr on May 20, 2008 2:18 pm

I’ve been responding to David Post’s interesting posts on law school case editing in the comment thread, and thought I would make some broader points in the main text for interested readers. As David suggests, I’m a fan of well-edited cases rather than unedited ones. In this post, I want to say a bit more on what that means and why, focused in particular from the standpoint of choices made by authors of law school casebooks.

First, a caveat: Not all law school courses are the same, and as a result, not all casebooks can be the same. In some courses, the cases in the casebook provide the governing law: The author has no choice but to include them. That’s mostly the case in public law courses like constitutional law or criminal procedure or administrative law. Although the casebook author has some discretion to chose which cases to use and in what order, a chunk of the cases have to be there because they provide the governing legal standards that students need to know.

On the other hand, that’s not true in many fields. In many areas, cases are merely demonstrations of one possible solution to a particular problem. They provide fact patterns and interesting discussions, but are not the only way. That’s mostly the case in private law courses like torts or conflicts of laws; there may be particularly famous or influential cases that are often included, but the cases are used mostly for their facts or the example of their reasoning rather than because they are “the law.” In these fields, no one case settles the law: Each jurisdiction can and often does take its own path. Given this division among courses, I think it’s hard to come up with a single rule on how or whether cases should be edited. I think it depends in part on the course, and the role of cases in that particular course.

With that caveat made, I think the question of edited versus unedited cases is really a subset of the broader question of how classroom materials should balance two competing needs: (1) the need for students to build and master general legal skills, and (2) the need for students to learn the specific subject matter of the course. Imagine a course built around either extreme. In a course built around need (1), the professor might give the students a tall stack of Westlaw printouts and tell them to go through the 30 or so cases and then find and master the 3 or 4 most relevant to the topic of the next day’s class. In a course built around need (2), the professor would assign a treatise excerpt and would assign no cases at all.

I think most current and former law students will appreciate that neither of these two extremes is ideal for most law school courses, and that most law school courses should strike a balance. The first approach would be overwhelming: Students would spend more time flipping through paper than trying to learn, and they couldn’t do this every day for every class. On the other hand, the second approach fails to give students an accurate sense of how the law is made and how it is understood by practitioners. You have to methodically work your way through the original sources to learn the law in these caselaw-based fields. So for most courses, the best approach is some kind of balance between needs (1) and needs (2). (To be clear, there are several other interests beyond (1) and (2), but for now let’s focus on the important tension between them.)

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Deciding exactly how to strike the balance between need (1) and (2) is a major choice for casebook authors. At every stage, the author faces decisions between these two competing needs. Use long cases or short ones? Raw materials or summaries? “Notes” that provide answers, or just notes that pose questions? Include dissents or edit them out? Revel in the uncertainty of the law or try to simplify it? There are no right or wrong answers here; rather, I think there are just choices depending on how the author wants to strike that balance.

My difficulty with assigning unedited cases is that I think the decision not to edit a case at all usually strikes the balance poorly. This is true for a few reasons. First, judicial opinions generally respond to the arguments made by the parties, and often the parties are unskilled at finding the best arguments for their sides. When that happens, an opinion can have a long discussion rejecting a weak and even idiosyncratic argument; there isn’t much to be gained from reading that section of the opinion. Second, lower court opinions are generally written for the parties themselves, and often include things that are irrelevant to general readers (like extensive cites to the precise page in joint appendices for fact sections, or long string cites taken from other opinions with long string cites in legal discussions). I don’t think the reader gains a lot by being assigned these things. I don’t tend to think that a great deal is lost when such sections are removed.

Further, in courses where the case is just an example and not definitively “the law” nationwide, the goal is usually to have a memorable fact section and a clear analysis to spark discussion; the rest of the stuff in the opinion usually doesn’t matter. And some areas are developed case-by-case, and the student needs to get a lot of cases to see the full picture of the law; in those courses, several short cases can teach much more than one or two long ones.

For those reasons, I think at least some editing is generally quite useful in most courses. Of course, it may be that a school wants to teach one or two “legal methods”-style courses that take a different approach. In that case, the goal would be to teach less doctrine and more method in that one course. That’s fine with me. But I don’t think assigning unedited cases would work very well if generalized to the curriculum as a whole, which I’ve been assuming is the primary question at issue.

Of course, like everyone in this debate, I’m approaching the issues with a personal preference. When I write casebook materials, I try to write what I would have enjoyed reading as a student. As a student, I found a lot of casebooks to be edited poorly and assembled somewhat carelessly. They often weren’t particularly organized, they didn’t tell you what was going on, and they didn’t make an effort to be enjoyable to read. As a student, and now as a professor, I most like(d) readings that inform, that entertain, and that draw the reader into the exciting puzzles of the law. All other things being equal, I want the students to enjoy the reading, as they’ll be excited about the materials and be more eager to learn both inside and outside of class. No doubt part of my aversion to unedited cases follows from that preference.

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