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.

On Teaching Law, II:

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.

A final (for now!) word on "on teaching law"

IT's been a really interesting discussion regarding the use of edited vs. unedited cases -- Daniel Solove's added some thoughts on the debate at Concurring Opinions as well. Orin's last comment:

"In my view, a well-edited case still requires the student to do all the work that you think is so important. It may be that you have had unfortunate experience with over-edited cases, in which they just had the facts and the holding. Or it may be that there are some particularly incoherent opinions in the areas that you teach. But in my view, none of the skills you mention are less well raised when a student reads 5 well-edited cases as compared to 2 or 3 unedited cases. Indeed, I think the contrary is true.

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.

I think that's a fair comment, and I think it usefully pinpoints our disagreement. "None of the skills you mention are less well raised when a student reads 5 well-edited cases as compared to 2 or 3 unedited cases." If one of the skills I'm talking about is "learning how to sort out the irrelevant from the relevant," having an editor sort it out for you does not help you learn it, even if you read 100 edited opinions.
At the same time, I do acknowledge that truly irrelevant stuff is distracting, and that sometimes getting rid of it does help students focus on the task at hand. Our definitions of the "truly irrelevant," though, are probably worlds apart; very, very little falls in that category for me, while I suspect that a good deal more stuff falls in that category for Orin.

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 . . .