On Legal Doctrine, and Teaching Law:

[I misunderstood/mis-characterized Orin's position in the post below - my apologies for that - as Orin points out in a later posting. Strike out any references below to Orin's advocacy for the "treatise approach" - I was thinking of deleting my posting in its entirety, but have decided not to; I think, though I won't belabor it here, that there is still a rather important and interesting disagreement between us about the nature of legal doctrine, but I can address that better some other time.]
Orin and I have been having an interesting little discussion about the teaching of law, and the use of edited versus unedited cases in classes (see the "Related Posts" below for a recap). Briefly, my position is that law students need much more exposure, in their "doctrinal" classes, to raw, unedited case material than they get, and Orin is not convinced.

In his last posting, he usefully broadened out the question, and he said something that truly astounded me:

"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."

This is, I think, the source of our disagreement, and it looks like it may go pretty deep: I would never assign treatise excerpts alone, even in a class built around "the need for students to learn the specific subject matter." And I'm amazed that Orin would.

I'd never teach a class with treatises alone for several reasons. Most fundamentally, treatises (and other secondary material) are not, and cannot be, "the law," and therefore whatever it is that students are studying in that class, it is not "the law." I'm not trying to be pedantic or over-literal, but you're not studying copyright law when you read the Nimmer treatise, you're studying Nimmer's views on copyright law — which are very important, very insightful, very helpful, very comprehensive, but they're not copyright law. It's not a trivial point — in our system, commentators and law professors are not authorized law-makers. Of course they play a profoundly important role — but their work product is not law. So studying only their work product and you're not studying the law.

Furthermore, pedagogically speaking, Orin's method strikes me as ill-advised. "Give a man a fish . . ." Students who encounter only the law professors' views on copyright law — whether it's Nimmer's, or Goldstein's, and/or including other leading commentators — is unprepared to do what lawyers have to do. Hell, you can memorize all 8 volumes of Nimmer's treatise, and you're ill-prepared to do what lawyers have to do. The first time you come across a problem that is not exactly like one already dealt with in Nimmer's treatise — that is, 45.8 seconds after you start practicing law — you're going to be very unhappy, because now you have to do what Nimmer did — read some cases and figure out what the hell is going on — and you've never done that before. Sure, if someone asks you for a memo on "What is the first sale doctrine?" you're ready to go — you can just spit out Nimmer's treatise on the subject. But nobody's going to ask you for that — precisely because they assume (correctly) that Nimmer's already done that, and they can just read Nimmer if that's what they want. No, they're going to ask you to figure out how copyright law fits into a new collection of facts — the client's collection of facts — a collection of facts that is probably quite similar to, but alas not exactly the same as, anything Nimmer discusses. You've got some work ahead of you, I'm afraid — and though you have taken an upper-level course in copyright law at Orin's law school, you've never done it before! (except in your first-year Legal Research and Writing class, which seems like it was an awfully long time ago . . .