A New Paper Chase

This is about books.  It’s about legal education casebooks.  A lot of what follows comes out of my experience as a law professor and speaks to law schools and law students and the legal profession.  A lot of it dovetails with closely related questions about books and teaching and education in colleges and universities generally.

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.

In writing the occasional essay about the futures of law, and uncertain as I am about what, exactly, those futures look like, I’m drawn inherently to big themes and big visions.  This essay begins a series with a narrower focus, one that explores links between opportunities and barriers at the macro scale, on the one hand, and some seemingly small scale, micro questions, on the other hand.  I surmise that the smaller questions tell us a lot about the character of the larger ones.

On a shelf in my office, I keep a collection of the books that I studied with during my three years in law school, beginning 35 years ago.  I keep another collection of the books that my father studied with during his three years in law school, beginning almost 65 years ago.  And I keep an eye on my copies of the books that I used to assign my own students, beginning a little over 20 years ago and continuing up to about 5 years ago.

For all practical purposes, in form, format, tone, and much of their content, the three collections are identical. 

Casebook publishing goes through its own eras and styles, of course, and the law itself has changed, in many small ways and in some large ones.  Today’s casebooks are not carbon copies of yesterday’s.  But the central idea of the casebook has endured, and not just from the 1950s to the present day. The casebook was one of C.C. Langdell’s signature innovations at Harvard Law School in the early 1870s. As a teaching device, the casebook remains universal.  As a physical embodiment of the legal domains that law students are expected to master, the casebook – literally, a book of cases, or published judicial opinions, edited and annotated by one or more law professors — is the one and only unit of measurement.  No artifact of the modern legal profession better embodies the profession’s identity and durability.  

And while the law, lawyers, the legal profession, and law schools chip away at the difficult processes of adapting themselves to the 21st century – with initial efforts at regulatory reform that promise to expand access to legal information and legal services (hello, Utah, Arizona, and California); new training modalities here and there that emphasize competency-based learning (hello, the T-shaped professional); and educational certifications beyond the JD (hello, IFLP) – the material foundations of this entire system remain anchored in the 19th century. 

Which is to say:  the casebook. 

Here’s a first cut at why the casebook matters, and why taking a deeper dive into casebooks is a useful exercise.

To a sizable extent, a profession is simply a group of people that perpetuates its collective identity by restricting admission to membership. 

Membership criteria – rituals, practices, training and knowledge, certification, access to and use of special artifacts and special places – matter enormously.  If you want to know where and how a profession is changing, or not, or if you want to move a profession in one or more new directions, look at those criteria.  Look at debates and fights about whether and how they should change.  Who is coming in, and (to borrow a bit of management jargon), how are they on-boarded? 

In my view, if we want to bring change to law and the legal profession, then modifying membership practices in both large and small ways is likely to be much more effective than trying to re-wire the beliefs and behaviors of existing members of the group, especially over the long run.  If you think that change is a bad idea or that the virtues of the present system outweigh its drawbacks, then fight to keep present membership systems essentially intact.

For example:  want people to take full and beneficial advantage of new regulatory flexibilities in the delivery of legal services? First, find and enable positive deviants, and build communities and institutions around them.  Second, train a horde of people who think differently about the purposes of the profession.  The first group will knock down the walls.  The second group will populate the landscape. 

Let’s focus on that second piece, training the horde differently.  What’s the central special artifact that defines becoming a lawyer, the thing that unites every single licensed attorney in the US and in much of the rest of the world?  Right now, the answer is, as it long has been, the casebook.  In just about all law schools and in just about all law classes,  no matter what you paid for your law degree and no matter where or when you went to law school, you shared the casebook experience. Not just reading cases but reading cases in casebooks – that’s how you first became a lawyer.

Which is to say, for almost everyone, students and law teachers alike, expensive, printed casebooks, supplied by a small number of academic publishers. 

Therein lies the key conflict, a front line in whether and how an entire profession defines itself and – maybe — should change itself.

For several years, a small but energetic “open access” publishing movement has taken root in certain corners of the legal academy, borrowing techniques from online publishers and producing and supplying low cost and even free casebooks and other teaching materials.  Open Access publishing in law has become part of a larger Open Educational Resources (OER) movement in education generally.  Some of these newer open books are, for all practical purposes, low-cost, adaptable, and primarily electronic versions of classic casebooks.  Some are low-cost, adaptable, and primarily electronic … other things.

Either way, and other things being equal in a market economy, one might expect that these cheaper materials, which often cost $20 to $30 or even less in print form, would sweep away the landscape of legacy printed casebooks, which often retail for $250 to $300 per new copy.

The evidence, to the surprise of just about no one, suggests exactly the contrary.  Yes, there is slow progress on the OA and OER fronts in law, with more titles and more adoptions by current law teachers.  But the slow progress to date falls far short of a crescendo. 

Why the continued marginalization?  And at what costs, and benefits?

The answers are not all staring us in the face, and they open windows on larger worlds.

There is more to come.