Professor Bainbridge...on law, politics, religion, culture & food

Casebook Editing

I think Erik Knutsen is missing the difference between light/heavy editing of cases and bad editing of cases. He blogs:

Is anyone else bothered by the trend in many casebooks (sadly, I’m only familiar with topics about private law) to eviscerate a case by editing it down to its bare essentials–which can literally mean only a few lines? I suppose the idea is to save time for a busy law student by boiling the issue down to some kernel of wisdom. Or to make certain an author covers a certain topic. However, what is this teaching, especially for first year students?

I would suspect that we lose out in teaching the secondary ability to subtly discriminate from vast masses of information while reading. In law practice, a 40 page case may have 2 paragraphs of import. There is a certain skill in being able to drill down to that central theme from the rest of the fluff. Isn’t that something that’s learned and takes time? But by doing this for law students right from the get-go, are we at cross purposes here? By third year, do students expect that all cases in life must be edited and are lost at sea when they’re not (or at the very least - complain in upper year classes if reading assignments push past 30 pages).

Or, at the very least, is this why we end up with lawyers who, in their briefs, cite volumes of a case for a tiny principle of evidence or a point of civil procedure. Next we’ll be asking for headnotes for the headnotes. I realize a law student has only so much time, but is the cost-benefit analysis of heavy editing here fulfilled in a rational way? If one assigns 30 pages of reading and it’s 20 cases with principle stacked upon principle, is that really what we’re supposed to be doing? Again, what happened to the ability to discriminate?

Another bugbear created from this is the “missing facts” scenario. A heavily edited case in a text misses a key fact which goes to the heart of the legal issue. One is then surrounded by questions which revolve around this gap. This prompts the instructor (hopefully!) to go look up the case (if she hasn’t already done so in the first place) and read the whole thing. Haven’t we all been there before? You have to fill in the facts (“oh, the train had NO brakes? oh...now I see.”). This burns more class time in explaining perhaps incidental factual issues instead of learning the more sublime skills of lawyering.

In the casebooks I co-author with Bill Klein and Mark Ramseyer, we strive to produce works that teach the gist of the law students need to know and train them to apply that law in both litigation and transactional settings. Towards this end, we attempt to ruthlessly excise as much bloat as possible. To be sure, many judicial opinions are incredibly bloated, but to the extent that observation has pedagogic value we assume that students have learned it by the end of the second week of law school, let alone by the time they get to a second-year course like Business Associations. Accordingly, judges get one chance, but only one chance, to state the law. After that, repetition goes out the window (at least, ideally).

At the same time, however, the devil is in the details. Accordingly, we include the facts and all their ambiguity. We want students to grapple with the facts more so than the legal rules, because that’s what we think judges and lawyers do.

In sum, what Erik is describing is not a problem of too light editing but a problem of bad editing.