Johnson, E E --- "Populist manifesto for learning the law" [2011] LegEdDig 36; (2011) 19(3) Legal Education Digest 15

• A populist manifesto for learning the law

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A populist manifesto for learning the law

E E Johnson

Journal of Legal Education, Vol. 60, 2010, pp 41-62

The profession of teaching law is infused with the idea that we must be careful to not make learning the law too easy for our students. The prevailing attitude is that students should not take shortcuts in learning, and we, as teachers, should not ‘spoon feed’ them.

The law teaching mainstream is calling for widespread change in how the law is taught. Institutions across the country are revamping curriculums. Yet despite this pandemic of open- mindedness, old ideas are holding fast about the right way and the wrong way for teachers to teach and for students to study.

Study hours during law school are finite. We should be cognisant of the fact that many of our students study in every spare hour they have. Even then, many go further, stealing time from sleep or family obligations. When we knowingly permit students to flounder in their attempt to grasp elementary pieces of doctrine, we rob from them the time and mental resources that they could profitably use for other learning objectives-whether that is cramming more doctrine into their heads or doing something else, such as amassing professional skills, solving problems as part of an experiential exercise, or gaining insight into theoretical perspectives on the law.

By making the learning process easier, we could make the law school years more productive.

As readers of this article will know well, the traditional method of teaching and learning in law school eschews using a textbook. By ‘textbook’, I mean a book that actually endeavours, as its primary mission, to explain its subject matter. Instead, students are assigned a casebook, a compendium of judicial opinions that are roughly ordered by their principal subject matter.

To study using a casebook, students are sent to slog through pages and pages of judge-rendered prose, none of which is written for the purpose of explaining the law to newcomers. The student compelled to read all this is left to grope around in the muck for bits of hard treasure: nuggets of black letter law – the plainly stated rules that comprise the bulk of the subject matter the student is seeking to learn.

Having never been assigned any document actually explaining the law, students are left to write their own explanatory texts. The document that typically results is what law students call an ‘outline’. Compiled from all the pieces of black letter law sifted from the semester’s morass of judicial opinions, the outline is the missing key to understanding the course material.

This way of teaching and learning traces its origins to Harvard Law School’s iconic professor and dean, Christopher Columbus Langdell, who published his first casebook, for his Contracts course, in 1871. Langdell’s casebook was at least incidental to, if not entirely bound up with, Langdell’s other innovation, his Socratic method of classroom instruction.

At the time Langdell introduced his casebook and Socratic system, the other law professors were straightforwardly lecturing to their classes with the help of assigned textbooks – legal treatises, we call them – that endeavoured to explain and demystify the law.

Subsequently, Langdell’s Socratic method remained the unquestioned norm – until fairly recently. In the last few decades adherence to Langdell’s Socratic method of conducting class has wavered to the point where it is at least something of a relic.

A recently issued report by the Carnegie Foundations and another by the Clinical Legal Education Association challenge law school orthodoxy on several fronts. Several law schools have responded by undertaking wholesale restructuring of their curriculums.

Within the context of the classroom environment, reformers counsel professors to move away from the Socratic method and move toward problem solving exercises. In particular, critics have decried the emphasis on developing legal analytical skills – the ‘thinking like a lawyer’ that is supposedly the fort of Langdell’s method.

But for all that, there has been little discussion of reading materials. That is, despite all the talk of reform, law school seems destined to continue to be centred around that heavy and doleful artefact – the casebook. It is strange that the casebook should emerge so unscathed when the Socratic method – the mode of instruction for which the casebook was invented – is being roundly condemned.

When I was in law school in the late 1990s, if my professors were not always crystal clear about doctrine, they were certainly clear about their opinion of study aids. One professor spoke of the dangerous temptation of looking up words in Black’s Law Dictionary. Another professor nearly blanched when, at a dinner, I disclosed that I had read a Gilbert’s law outline.

Why are study aids treated by so many professors as if they are intellectual poison? Could it really be possible for a young law student’s brain to be damaged by reading something? I think not. Even at the height of the Cold War, college students were deemed hardy enough to read Karl Marx. There were no mass defections to the Soviet Union as a result.

Clearly, there must be some implicit rationale behind the poisonous fruit theory of study aids. One possibility is that teachers believe there is something valuable in the struggle to learn the law, something that students cannot obtain from spoon fed answers. The other possibility is that teachers believe that the doctrine contained in study aids is wrong; the true doctrine being only available in the original judicial opinions. Both of these rationales are flawed.

The first rationale is dealt with most easily. Far be it from me to advocate law school being easy. But there is nonetheless a matter of choosing your battles. I believe law students should struggle to apply old doctrine to new factual contexts; they should struggle to form persuasive legal arguments; they should struggle to write clear, concise analyses of complex subject matter. But struggling to find black letter legal rules in hard-to-read cases? There’s little value in that, and making it a principal pursuit of law students is deplorable.

It is far better for students to read cases at a higher intellectual level, casting a critical eye on the court, questioning the motives of the parties, and learning how the black letter doctrine works, or doesn’t work, in a real context. That kind of high level reading is made possible when students have a framework of doctrinal understanding at the outset. But fifth gear thinking is stymied if students must make a dead start from a position of pure ignorance.

The commercial outline can be reviewed at the beginning of a student’s studies. Armed with some rudimentary understanding, a student can read the cases at a higher intellectual level, looking for the subtleties, the rhetoric, the politics, and the inconsistencies.

While I am defending the honour of commercial outlines, let me stop to go one further and, in the best tradition of legal advocacy, offer to mount a defence for a truly friendless object of scorn: the canned case brief.

Canned case briefs have an honest role to fill. When I was a student, and even a novice lawyer, I found it helpful to scan the headnotes of a case, or read the syllabus if the case had one, prior to settling down to slog through the opinion itself. Knowing what the case was about and where it was headed aided my ability to read it – and not only to read it, but read it in a meaningful and deeply analytical way.

It is one thing to eliminate our sketchy admonitions to students to stay away from study aids, but I would like to go further. I would like to convince you that most doctrinal law school courses, ideally, should have a textbook assigned along with a casebook.

In my Torts class, I have assigned a slim paperback treatise as a textbook. It works extremely well in my opinion. In my Intellectual Property survey course, I have had great success assigning a thicker book, Intellectual Property: Examples & Explanations, by Stephen M McJohn.

I urge students not to regard the textbook as somehow being above reproach. But the perspective and clarity a textbook provides is very welcome.

Virtually all casebooks are sprinkled with a sizable helping of notes, questions, and other exegetical matter added by the authors. Sometimes it is clear that considerable thought and work has gone into crafting them. Other times, however, the notes are a mishmash.

It is clear that some notes are intended to serve a textbook-like function of distilling and explaining black letter law. Yet they perform this function inadequately. Coming, as they generally do, after the case for which they are relevant, notes do not give readers a framework of understanding with which to attack the source material.

An advantage that a textbook has over even the most well written notes is organisation.

Textbooks and commercial study aids cannot render obsolete a specifically tailored student-written outline for the course. Custom outlines represent a highly valuable synthesis and condensation of course material. But making them is very time consuming. With this in mind, I have created, in my classes, a system designed to enable all enrolled students to produce a single custom-tailored outline that everyone can use, thus minimising as far as possible the amount of work any particular student must do.

With community-wide benefit in mind – what economists would call ‘net social welfare’ – I have constructed a particular system of encouraging the production of a group outline. With the aim of giving it a quick and catchy label, I’ve dubbed the scheme ‘wypadki.’ As the word is Polish for ‘accident,’ the name ‘wypadki’ made particular sense for Torts, the first course in which I tried it. But the label has universal application if thought of as a recursive portmanteau: Why prepare an individual outline when you can use a wypadki?

Technologically, the wypadki is enabled by a wiki software package hosted on the law school’s servers. The software that I use is MediaWiki, the same as that used for Wikipedia, the wildly successful collaborative online encyclopedia that is written and edited by its readership. As with Wikipedia, students using the wypadki are able to log on and add to, edit, or delete from the evolving document.

My final exams are administered on a closed book basis, except that students are provided with a printed copy of the wypadki. Thus, students have an inducement to populate the wypadki with content. In sum, the students are essentially offered a bargain, whereby they can bring any materials they wish to the exam so long as they are shared with the rest of the class. The history-keeping function of the wiki software records the name of the student responsible for each edit, addition, or deletion. To maintain accountability, the document is protected so that it can only be edited by students registered in the class, who use their real names as logons. The overall effect of the wypadki is the production of positive economic externalities-one student’s work, undertaken for self-interested motives, pays dividends enjoyed by all of the other students. But wait a minute, you might say, doesn’t this allow slackers to take a free ride on other people’s work? It does. And this, as I see it, is one of the wypadki’s most charming features. In economists’ terms, a ‘free-rider problem’ arises when people refrain from engaging in some socially beneficial pursuit because those people anticipate that others will be able to derive a benefit without putting forth any of their own effort or investment. The problem in the free-rider problem is not the free-loading, it is the fact that people are dissuaded from engaging in the socially useful activity. The wypadki does not suffer a free-rider problem because students contribute despite the potential for others to take a free ride.

You can see the results yourself – the wypadki documents are publicly available online.

Learning black letter law should not be the endpoint of a course; it should be the beginning. Students are far better served by being given the black letter law up front, spooned to them – with sugar even.

I begin the courses with a black letter overview. Using a skeletal outline I’ve done myself in the form of an interactive mind-map on a computer, I lecture about the naked doctrine. Over these days, we do not read any cases. In fact, there is no assigned reading, although I do encourage students to read the abbreviated 20 to 30 page ‘capsule summary’ of a commercial outline.

Learning black letter doctrine in this manner is, in fact, so fast and easy, it almost seems scandalous. It prompts one to ask the question, if you can teach all of torts black letter doctrine in a couple of weeks, how can law school possibly last all of three years?

That is a fair question. For a reality check, it behooves us to recall that American law school lasts three years precisely because Christopher Columbus Langdell wanted it that way. Before Langdell was appointed dean, it was possible for a student to earn a Harvard law degree in just one year. It doesn’t take much of a skeptic to see the connection here: the person who revolutionised learning the law – to make the process more difficult – also revolutionised the law school degree plan – to make it take longer to graduate.

After I have taught my students the black letter law in Torts or Intellectual Property, I do not, of course, excuse class for the remainder of the semester. At this point, we start over, and we work through the doctrine again, but this time with a casebook. Reading cases after having learned the doctrine is not boring – to the contrary, it makes the case readings much more interesting and rewarding.

For three years now, in my Torts class, I have been assigning portions of John Edwards’s book Four Trials. Each chapter in his book contains his personal narrative account of a case, and the text is steeped in the human dimension of litigation practice. Although the book was not written to teach doctrine, it does discuss real legal issues – standard of care, remittitur, the threshold for punitive damages, what counts as a design defect, and more – all presented within the rich context of the apprehension, loathing, greed, and, most impressively, the compassion that is part of torts as it exists in real life.

As is the case with any judicial opinion, Edwards’s narrative gives us a view of the judge’s thinking about tort law. But with Edwards’s book we see the judge from the utterly different viewpoint of the counsel’s table. I do not assign Edwards’s stories in addition to cases. I have taken cases out of my syllabus and put these stories in instead.

My students have been extremely enthusiastic about the Edwards readings. The reaction the first year was so favourable, the next year I trimmed enough cases from the syllabus to make room for assigning the movie A Civil Action and several briefs from the underlying litigation, Anderson v Cyovac.

The Anderson lawsuit, for those unfamiliar with it, was a toxic tort case against industrial operators who had allegedly dumped carcinogenic waste on the ground, polluting a groundwater source for Woburn, Massachusetts and leading eventually to a leukemia cluster. The legal doctrine du jour is actual causation, and the briefs, considered together, gave the law as sharp a treatment as might be expected out of a judicial opinion. But because the documents are lawyer crafted argument, they give students a wholly different and enticing view. By reading briefs, students see the sort of work product they will shortly be expected to produce. And in class, we are able to deconstruct the attorneys’ tactics and wordsmithing. We are reading what the judge reads, and thus we are compelled to see things as they appear from the bench.

Assigning the movie alongside the briefs gives the class the long view. We confront squarely the human suffering that our justice system is meant to address. More than that, we are shown, with painful clarity, how slow and draining litigation can be. The film also sheds special light on the element of actual causation – but not as black letter law. Instead, the film shows what the prima facie element of actual causation means in real life: We see the financial turmoil of a small contingency fee plaintiffs’ firm foundering under the burden of trying to prove causation in such a complex case. The expert medical witnesses, the geology experts, the soil testing, the endless depositions of the families, and, above all, the mountains of paper that must be reviewed – it is all a very real part of the actual causation requirement, and it is insight you can scarcely get from a judicial opinion.

Let me note that this opportunity to reach for non-traditional case readings does not exist equally for all courses. Torts, Contracts, Property, and Criminal Law, for instance, seem particularly suited to it. But I cannot see the approach working the same way for a course like Constitutional Law’. The reason it works well in common law classes is because the cases in such classes are not presented as being controlling law, but merely examples of the law as it is likely to be found in many jurisdictions. Nonetheless, for many courses, there is tremendous opportunity to move beyond the well travelled road of state and federal judicial opinions.

Law school should be challenging, but we owe it to our students to provide challenges that are carefully thought out, so they can be maximally rewarding. Unfortunately, the challenge of learning law ‘the hard way’ is a challenge less from design than unquestioning adherence to tradition. Moreover, it is tedium repeated in nearly every class; thus, it is bound to be more busy work than intellectual adventure.