The Strangelovian Law School, Or: How I Learned to Stop Worrying and Love the Casebook

In this series of posts about the law school casebook [first post here] [second post here], I’ve suggested that the casebook is both emblem and instrument of how the legal profession perpetuates itself as a field. 

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.

It’s clear from my earlier posts that there is a lot to criticize in the law school casebook.  In future posts, there will be more criticism, and more importantly, some ideas about change and novelty.  In this post, I pause for some praise.  As a form of teaching text, the casebook has endured for well over 100 years and is still in almost universal use today. There are reasons for that.

Some of those reasons are not so great:  path dependence, switching costs, and the political economy of academic publishing.  But here are some better reasons.  In short: I’ve got a list of seven reasons why we can love casebooks, and why some people – even some law students – actually do. 

  • Convenience for students:  One book per course, and one course per book, is an intellectually economical and pragmatically portable way for students to keep track of course content and expectations.
  • Convenience for teachers:  Preparing to teaching a law school course requires that the teacher do little more than simply pick their preferred casebook from among the texts on offer.  (Sometimes that’s true; sometimes, it’s not.)  The convenience factor is especially important for faculty members, including adjunct faculty members, who are not experts in the subjects that they are asked to teach.
  • Simplicity and standardization:  Many if not most bodies of law taught in US law schools are trans-jurisdictional – they span the entirety of the US (and/or the Anglo-American tradition) or bodies of “international” law.  The casebook approach helps to ensure that Basketweaving Law as taught in Miami is a close cousin of Basketweaving Law as taught in Seattle, so that Florida law graduates can sit for the bar exam and begin careers in Washington – and vice versa. And law professors who move from Seattle to Miami can carry on their teaching careers more or less without interruption. 
  • Consistency in meeting student expectations:  Generations of law students have been taught that almost all law school courses come in packages that align precisely with bodies of law, particularly those bodies of law that were codified (often by law professors) during the 19th century.  The form of the casebook labeled “Contracts” aligns precisely with the expectation following that teaching, so that law school as experienced by students is mostly what students expect law school to be.
  • Adaptability in terms of pedagogy:  Many casebooks are blank slates, for all practical purposes, when it comes to pedagogy.  So-called “Socratic” teaching, at least in its modern, modest sense, remains a norm in law schools, but contemporary law school casebooks are not uniquely suited to any version of Socratic performance.  Casebooks can be formatted to suit different teaching styles, and even more traditional or conventional casebooks may be adapted by teachers to serve different pedagogical goals. 
  • Boundary setting:  Legal fields defined by casebook titles and course labels reproduce and reinforce legal fields defined by areas of doctrine and practice. For law students and law professors, contract law and problems solved by contract law are clearly “other than” tort law and problems solved by tort law. Theory, doctrine, and law practice tell us so, and the casebook and the form of the law school course both reinforce and reproduce the distinction.
  • Integration:  As important as it is to keep Contracts and Torts in their proper places (and classrooms, and books), it is also important to synchronize them – together, and separately – with literatures and practices outside the law school.  Practitioner literatures are divided and synchronized along complementary lines.  West’s National Reporter System has long done likewise with judicial literature.  Legal scholarship and communities of researchers and scholars are organized similarly.  It is not a stretch to say that the entirety of the legal profession is integrated around its collective and shared embrace of a long-standing universe of the disciplinary categories that, in the aggregate, constitute “the law.”  Casebooks didn’t create those categories; in some meaningful senses, casebooks simply represent them.  Using casebooks to organize legal education ensures that legal novices are apprenticed intellectually in ways that align them with their seniors.  They are primed to think and act as generations of lawyers have done.

Some of these justifications and defenses are more persuasive than others.  I’m not sold entirely on any of them, myself, but it’s important to give the world its due.  And it’s also important that the list ends on the note with which the argument began, which is that casebooks embody institutional and professional continuity, for the individual lawyer and for the profession as a whole.  We produce and reproduce our fields of practice via our materials as well as via our styles of thought and behavior.

Note something that is not on that list: effectiveness.  There is no evidence (none that I’m aware of, at least) suggesting that students who are taught law via reading casebooks are better prepared for the bar exam, for the start of law-related careers, or for progressing through law-related careers than students who are taught otherwise.  It’s a little difficult to imagine that existence of that evidence, of course, because for all practical purposes students are not taught otherwise. Earlier in this post, I put aside path dependence, switching costs, and the political economy of academic publishing.  But any realistic appraisal of legal education and the legal profession needs to put those things front and center.

What might a different world look like, and why might we explore that?

The series will continue.