On Casebooks

The case method has come in for its share of criticism over the years. Much of this criticism is closely tied to the association of the casebook form with the Socratic method. The two are closely associated; Christopher Columbus Langdell developed them as a package deal, and most casebooks are designed to be taught Socratically. The non-case material is often well-nigh inscrutable: "problems" and "questions" so insanely cryptic and condensed that they demand leisurely exegesis.

But I'm also starting to realize that casebooks have -- or can have -- a certain freestanding literary merit. Sometimes, they're simply so clear and well-edited that you don't really need the professor to walk you through the question-and-predetermined-answer ritual. But in other cases, the casebook stands on its own as, dare I say it, a good read. Good casebooks have personality; they have a narrative voice. The form can be constraining, especially given that each section must be relatively freestanding, to enable professors to pick, choose, and rearrange the materials. But at the same time, it's actually a lot of fun to see a good casebook play with time and dramatic tension.

Editing for publication is a tricky business. The original theory behind the case method was that students reading through cases would learn to discern the general principles and legal rhetoric at work. I think this theory has been in decline for reasons obvious in hindsight. Generations of judges trained on leading cases have been writing opinions that are more and more exegetical. Good statements of particular topics become the standard statements, quoted hundreds of times, through the magic of cut-paste-and-cite, in other opinions. More modern casebooks -- or some of them, at least -- are much more heavily edited.

One may dispute this approach, of course. I think it's a great idea; even a single semester of law school is enough to make one a master skimmer. Further enforced practice in self-condensation of long opinions is just gratuitous cruelty to trees. Whereas short, highly-condensed, cases have something of the pithy beauty of the old English single-paragraph case reports. That is, for the same reason that even great novelists need editors, judges benefit from being edited, too. Short cases keep things moving; they keep the average quality of writing high. And, most importantly, they make the key "voice" in the casebook that of the author, rather than of the judge being quoted.

Two of my books this semester, for example, display a kind of horrified fascination at their subjects. "Oh, young law student," they say, "you are young and naive, and we are ever so sorry to be the agents of your disillusionment, but the law is not the Great Rock Candy Mountain as your teachers have led you to believe, and by the time you have done with this course, you will be older, sadder, and wiser in the ways of the black comedy that is our legal system."

My Conflict of Laws book, right now, is rather gleefully setting up the "traditional approach" to the subject, a system of complex and mechanical rules that collapsed under its own weight. Thus, we have extensive excerpts from those rules, so assertive and brash you can imagine Robert Preston reading them aloud in his best Music Man voice. But the cases themselves are all Willy Loman: judges looking around in a state of miserable confusion as the rules lead to anomalous and contradictory results, wondering where all the old certainties have gone, and when was it that everyone stopped smiling back. The notes and questions are mild in tone, but merciless in content. "This system was stupid," they seem to say, "so stupid that it's hard now to believe that people took it seriously." I swear to you that I can all but see the authors smirking.

Or, take my Admin book. One must admit that Admin is a bit of a dull subject in some ways. It is, quite seriously, a course about bureaucracy. If there is entertainment to be found here, it will not be the strange facts and operatic tragedies of torts or the clash of the great principles of constitutional law. No, the humor of bureaucracy is a dry wit, a kind of expasperated amusement at the glacial pace and the pettiness that all obscure the real work going on. The Memorandum comes to mind. And my Admin book plays this role to the hilt.

They use some of my favorite literary tricks. There is the use of a private language, the reptition of key phrases for rhetoric (and comic) effect. "The effect of thermal shock on soft-shell crabs" pops up again and again. There are the wry chapter heads: "The Tip of the Iceberg" is my favorite. There is the crushing of overly-optimistic illusions: "The Second Circuit thought it had found [such a case]" is followed by the Second Circuit's opinion, which is followed immediately by the Supreme Court's reversal.

I suppose my descriptions aren't really doing these casebooks justice. It may be that you need to read a few bad casebooks before you appreciate the good ones. I've certainly had to deal with some deathly boring ones. The contrast is striking.