Earlier posts have outlined the broad claim, explored the motivations and incentives that drive the persistence of the casebook model, and even defended the uses of casebooks from the point of view of both students and professors.  [First post here] [Second post here] [Third post here]

In this post, I want to turn the screws a little bit.  The clearest and most direct argument in opposition to the current casebook model is economic, pure and simple.  Casebooks cost students a lot of money, money that they often don’t have, money that they shouldn’t have to spend on teaching materials in law, and money that they might better spend on other things.

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The obvious subtext is that I believe (along with others) that the profession is overdue for some substantial re-thinking and re-implementing, and that change begins at home. [Since this series began, the chorus of similar calls has gotten louder and louder.  See, for example, this post from Dan Rodriguez, “Toward evidence-based legal education reform: First, let’s experiment,” and this announcement of an interesting new venture at the University of Pennsylvania.] Lots of time, attention, and money are flowing into re-regulation of law practice, legaltech solutions, and other things.  Some good time and attention is being directed to modifying the edges of legal education, particularly via new forms of experiential education.  Almost no time or money is going into re-thinking the intellectual backbone of law’s entire system of systems.  That’s my interest in the casebook.

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Law professors love to write things like “use this as a lens for that,” because it makes them feel and sound like their academic colleagues in other parts of the university.  “We’re researchers, too!,” we like to think, even if we rarely say so out loud. 

That micro bit of casual academic sociology is the key to this installment, which is in other respects an effort briefly to explain where casebooks come from and why, despite generations of legal professionals complaining about them, neither their fundamental forms (including prices) nor their contents seem to change much. By design, casebooks are set up rarely to give readers the contents of legal doctrines, but instead to provide students with an annotated set of primary source materials from which students are expected to discern the rules. As teaching texts, as a rule casebooks are guides for the soon-to-be-initiated rather than actual summaries of law.  They are devices for migrating generations of students out of “student” mode, in which they are presumed to enter law school, and into “practicing professional” mode, in which they exit it.

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But I’m not writing principally for the benefit of my faculty colleagues.  I’m writing principally for the benefit of practicing professionals, who often know little of the inner workings of their own educational systems, and also for the benefit of present and future students, who often know even less.

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The first part of the response, from two weeks ago, agreed with the gist of the critique but introduced the idea that the critique opens a broader window on the relationship between legal education and the market for lawyers.  The second part of the response, from last week, explored the meanings of the “law factory” metaphor and linked it to the uses and limitations of “the legal industry” as an expanded metaphor.

That second part concluded with a series of mostly rhetorical questions about what the market might want and what the market might need. How are we to know, and when, and who are we to ask the questions, anyway?

Here’s the third part, the payoff.

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