David Post at the Volokh Conspiracy reports on an experiment he conducted in his Intellectual Property classes. Instead of giving his students casebooks with pre-edited judicial opinions, he gave his students unedited judicial opinions, so that they could practice identifying the important portions of the cases. In Post's words:
My idea was pretty simple. Being able to read a judicial opinion from start to finish and to figure out what it means, or even what it might mean, even though there’s a lot of confusing junk in it, is an indispensable skill for any lawyer.At the end of the post, he offers this observation, which I think highlights one of law school's most glaring deficiencies:
All of that I kind of expected. But there was an unexpected benefit as well. One thing I was nervous about was the obvious need to reduce the total number of cases the class would be reading. I tried to select cases that don’t have too much “confusing junk” in them, but even so it’s hard work for them to get through the opinions, and I can only assign one or two per class. I was worried that their understanding of the substantive subject matter – the nuts and bolts of IP law – would suffer as a result. But I think the opposite may well be true. Casebooks edit out not only the “confusing stuff” but also the repetitive stuff; because the American Geophysical Union v Texaco case is in the “fair use” section of the Casebook, the court’s discussion of copyright ownership, or the scope of the reproduction right, will probably be omitted as having been covered elsewhere in the book. But it turns out – somewhat to my surprise – that the repetitive stuff is enormously helpful. It’s one thing to read, in the section on “copyright infringement,” that the plaintiff has to prove “copying” and “substantial similarity in protected material” in order to prevail, and to try to understand what that means. It’s quite another thing to read that in every case, over and over again, the same basic formulation of the elements of the copyright claim. And to notice that while the basic formulation stays pretty much the same, different courts, in different cases, might articulate the rule somewhat differently – hmmm, what’s up with that? I could be wrong, but I think my students understand the copyright infringement “test” more thoroughly for having encountered it so many times than they did when we focused on it just for a couple of classes.I think Professor Post is right, but for a reason he does not mention here. In casebooks, there is generally space for only one or two cases on each legal concept. Consequently, casebook authors choose cases with facts that are right on the edge -- in other words, in applying the legal rule to the facts in that case, the court could go one way or the other. The point of choosing these cases is to demonstrate where the outer limits of a particular legal rule are. The downside to this method is that students don't get any sense of what facts definitely do or definitely don't fall within a particular legal rule. Giving students unedited judicial opinions lets them see situations where courts make a routine application of a particular rule to a set of facts -- no legal debate about the applicability of the rule, or the outcome when the rule is applied. The "repetitive stuff" allows students to see what a routine application of a legal rule looks like. This is important because in practice, it's very rare to come across a set of facts that are right on the edge of a legal rule. The answer is usually pretty definitive one way or the other, based on existing statutory material, case law, etc. Professor Post is right that the ability to quickly parse an unedited judicial opinion is an invaluable skill. He's doing his students a big favor by teaching them this skill.