Statute of Frogs

There’s a bit of discussion at Concurring Opinions and The Volokh Conspiracy about the relative merits of teaching from unedited cases as opposed to a casebook that provides edited versions of them.  I took one class in law school where we read unedited (mostly SCOTUS) cases and it was (not coincidentally) the best class I took during my three years.

Casebooks have their inherent advantages.  If one is trying to learn the basics of a broad area of law, it’s much more useful to read hundreds of cases that have been distilled to their essence than to read a few dozen in their entirety.  But at some point, lawyers have to learn how to quickly process cases in their raw form.  This is just one of many ways in which law school often fails to prepare students well for the practice of law.  It was in this class that I really learned how to work with complete cases and make sense of them, a skill I use every day in my clerkship.¹

Another aspect of this issue is that casebooks teach students to look for the single nugget of wisdom in a case.  We get the idea that a case “stands for” a particular legal proposition.  While that is often true in practice, treating all cases that way removes any sense of the subtlety that often exists.  I see this lack of subtlety in briefs all the time.  Lawyers will distill a case down to a particular legal principle, but will fail to address the factual differences between that case and their own.  Alternatively, they will identify the broad principle in the case, but fail to see how that principle fits into the concerns that the judges raised in the rest of the opinion.

Finally, often one of the parts that gets cut out of cases in edited form is the review of the existing case law that judges invariably embark on.  It is interesting — and valuable — to see the subtle ways in which courts distort their own precedents in order to reach a desirable result in later cases.  That is often lost in the casebook view of an area of the law.

Obviously, these are not skills that always need to be taught in the classroom.  Legal research assignments, journal comments, and other activities will help students develop those skills.  But I, for one, am grateful to have had the experience of dealing with the raw cases in a classroom context.  I think I’m a better lawyer for it.

1. Well…maybe not every day.  But really often. [↩]