March 17, 2004
Sandefur: Overdue Gripes About the Case Method
by Guest Contributor
Timothy Sandefur is a Fellow in the Center for Public Interest Law at the Pacific Legal Foundation. He writes regularly at the blog, Freespace. –Ed.
What I disliked most about legal education was the “case method.” Obviously my experience is revealing only about myself, and different people learn in different ways, but I suspect that I am not the only one who finds a lecture method far more effective. I think the case method has outlived its usefulness—if it ever was useful—and I think it leads to confusion and frustration not only for students but for professors as well. My most effective professors either did not use the case method at all, or else mixed it so thoroughly with organized lectures that we would sometimes spend two or three class sessions in a row not discussing cases at all. I think the essential weakness of the case method as a teaching system is most effectively shown by the fact that when it comes down to something that really counts—passing the bar exam—students and teachers put the case method away and get down to real learning, through the lecture method.
The father of the case method was Christopher Langdell, who introduced it at Harvard in the late nineteenth century on the grounds that (in Lawrence Friedman’s words) “law was a ‘science’; it had to be studied scientifically, that is, inductively through primary sources. These sources were the printed cases; they expressed, in manifold dress, the few, ever-present, and ever evolving and fructifying principles, which constituted the genius of the common law.” Lawrence Friedman, A History of American Law 531 (1973). That’s all well and good, but the fact is that legal education is not the same thing as legal research, just as teaching students physics is not the same as a theoretical physicist doing an experiment in an atom-smasher. In fact, taking a freshman college student to an atom-smasher and just letting him figure things out for himself is the surest way to fill his mind with bewildering details and, eventually, to kill whatever interest he may have had in physics.
The same is true of the law. Yes, cases are immensely instructive, and any lawyer must know how to sift through a case for the gems of common law. But emphasizing cases to over the structure in which the cases ought to fall is to provide the materials without the blueprint, and that is why no law teacher of whom I know follows the case method completely. Eventually, if they want students to understand how the law works, they revert to a lecture. You wouldn’t give a court a pile of cases—you’d give the court a brief that lays out things with a clear and easily-followed line of logic. That’s how it should work in law school, too. It’s not that teachers should never talk about cases; it’s that the cases should illustrate the structured lectures, not the other way around.
The better teachers already do this. But they often feel that they shouldn’t, and torts professors especially tend to talk so much about the cases that the overall structure of a field of law is lost, which leads to confusion and frustration for students.
Another problem with the case method is that it teaches students that all of legal education is to be derived from the decisions of appellate courts. There are many other sources of law, but students raised on the case method tend to look at the cases first, the law reviews second, and the statutes only when everything else has failed. In Prof. Hewitt’s Con. Law class, the students moaned and complained about having to read Madison or Locke, because they thought it was irrelevant. The case method “severed the cords...that tied the study of law to the main body of American scholarship and American life...[and] equated law absolutely with judges’ law.” Id. at 535. See also G. Edward White, Tort Law In America: An Intellectual History 37 (1985) (“The rigid reliance on the case method presupposed the exclusivity of judicial opinions as source materials and suggested an indifference to the role of jury determinations as expressions of societally recognized legal principles….”). This has three insidious consequences. First, it teaches students that Locke, or Madison, or other sources of the American legal tradition, are of historical or trivial interest only, and discourages students from studying the broader fields of moral and ethical theory which ought to inform all legal thought. Second, it teaches students that if they don’t have a case to back up an assertion, they ought not to make it—which means that students think of law as stringing together phrases culled from cases, rather than a structured, organized, common sense way of thinking. Note the surprise that students express when they read a great John Marshall decision, like McCulloch v. Maryland, and discover that Marshall cites no cases in the whole opinion. It’s a great monument of legal reasoning, and yet students can’t help but feel that Marshall’s cheating somehow. There was a time when lawyers had to make do without books at all—lawyers on the Western frontier, for instance—and who had to go by their knowledge of the principles and their memory of Blackstone. But surely it’s the rare modern student who would have the courage to make a legal argument based on logic and theory alone. Third, it teaches students to think that later cases are always better. Because they are looking for authority rather than principles, the student learns to shy away from even well-reasoned cases because they’re “too old.”
This leads me to another complaint: the case method flatters the prejudices of a politically charged view of the law—that is, Progressivism, or “realism.” The fact that this is (as they say) the “dominant paradigm” in American law doesn’t change the fact that the case method reinforces a notion in students’ minds that the law is whatever judges say it is. Those of us who think this is perverse would prefer an instructive method which focuses on principles, which might not only be more effective, but more consistent with right reason. Lord Coke said that reason is the life of the law. Holmes countered that the law is not reason, but experience. The case method is deeply rooted in the prejudices of the latter view, and its consequences are the same: to undermine principled jurisprudence and to tend toward seeing the law as an instrument for enlightened judges to mold society, rather than the discovery of principles through logical, orderly, legal analysis. This is an extreme view, I admit, but notice how those raised on the case method dismiss as antique superstition any notion that the law is found rather than made by judges.
I suspect that the current controversy over unpublished decisions is really a consequence of generations of lawyers being raised on the case method. When Lord Coke started sifting through musty old documents to find cases to back up his arguments, he was not looking for an authority with which to confront the court and thereby somehow command the court to do what he wanted. He was looking for evidence that someone had considered these issues before and come to a conclusion about it, which might be persuasive. His emphasis was on reasoning, not on creating a legal dogma. But law students are now so thoroughly indoctrinated with the idea that all law is case law that they see cases in a different way—as analogous to regulations by which the court is required to abide. As Howard Bashman has put it, “the precedential effect of an opinion should be determined by its contents, and not by a label attached to it at its time of issuance.” But I think courts are dealing with a generation or two of lawyers who think of cases not as examples of legal reasoning, but as stones they can put into the scales of justice to tip them in their favor—and I blame (in part!) the case method for that.
I would replace the case method with lectures, using the cases only to illustrate the lectures, and reading of legal textbooks or monographs organized around subjects, rather than “Cases and Materials” books. Most students revert to these methods already when they find themselves confused by their classes, by buying taped lectures or commercial outlines.
March 17, 2004 12:00 AM
Excellent commentary, and I think Mr. Sandefur makes his case. One point among many that I find particularly interesting is his observation that law students are essentially trained to avoid looking at statutes until all other methods of interpretation have failed. This flaw in how law students are taught was also pointed out by Justice Scalia in his book, "A Matter of Interpretation."
Of equal interest, however, is that law schools have actually reacted to Justice Scalia's criticism. I recently learned from a current student at my alma mater that a specific course in Statutory Construction had been made a mandatory requirement for graduation. Just offering the course at all would have been a good step, but making the course mandatory is, in my view, significant.
I confess I find a portion of your post quite puzzling. You complain that “the case method flatters the prejudices of a politically charged view of the law—that is, Progressivism, or ‘realism.’” But then you suggest replacing it with a teaching method that encourages law professors – and students – to approach the law from an equally-charged political view, albeit one diametrically opposed to realism, and one that by the by lacks realism greatest attribute: its descriptive accuracy.
As a descriptive model realism has everything else beat six ways from Sunday. One need not embrace the entirety of the realist project, i.e., “seeing the law as an instrument for enlightened judges to mold society,” in order to recognize that “the discovery of principles through logical, orderly, legal analysis” doesn’t begin to describe the way law actually works, or has ever worked.
And I don’t see the value in pretending to ourselves, or to law students, that abstract theories govern legal decisions. Those theories may help explain some decisions (though less than we’d like to think, see, e.g., Brian Simpson’s The Leading Cases of the Common Law or his evisceration of Horwitz’s theories on contract law) and may help students and lawyers place the decisions into some sort of context, but they have little predictive or explanatory force. I think such an approach as more value as a nemonic device, hence its use in bar review classes, than it does as an analytical or teaching one.
This is (almost unbearably) obvious in common law, but is also true in others, as well. Take, for instance, the First Amendment. There isn’t a theory out there (at least that I’ve read) that adequately accounts for the twists and turns in that law. Trying to lay down through lecture a coherent non-contradictory theory of free expression or free exercise or establishment and then illustrate it with cases would do unmentionable violence to the doctrine. This is also true, of course, of most areas of constitutional interpretation.
I do agree that law students and lawyers must remember that chasing down the most updated string citation is not a way to win a case. I agree that law students would benefit from knowing more about the historical forces that shaped the law, if not for the same reasons you cite. And lawyers and judges – not just law students – need constant reminding that court decisions are neither the alpha nor the omega to American law, especially constitutional law.
Finally, I agree that in a majority of class a lecture/Q&A format is a far superior to the Socratic method (although in the very few cases I’ve seen the Socratic method done well it can be a thing of beauty.) But the content of those lectures should be mostly about what the law actually was or is, not what we think it was, is, or should be.
It was not my intention to claim that the lecture method would lack ideological implications; hence my admission that mine is an extreme view. As an activist, I would prefer schools teach in a manner more consistent with my ideology. That my ideology is the same as those who framed the American Constitution also suggests to me that doing so would be more effective in training students in proper constitutional interpretation. But I do not believe a "value free" education in the law is possible, let alone desirable, and did not intend it to sound as though a lecture method would approach "value freedom" more precisely. Nor do I think a lecture method would be less effective in teaching students about "legal realism." As with all popular delusions, "legal realism" deserves to be studied, of course, and I do not mean to suggest that students ought not to be taught what it is, and what is wrong with it.
1) I've gotta ask: when you say that "legal realism" is a delusion, what do you mean? There's a lot that could (or not) be packed into that statement. I would think, at least as an empirical claim, you would have a hard time supporting an argument that realism is illusionary.
2) Why is it that the Founders view of constitutional interpretation should govern the modern teaching of law -- especially in common law subjects? Are you referring to the substance of their views? Their methodologies? Both?
3) You didn't answer my admittedly buried question: What is the value -- to the students -- of teaching an admittedly inaccurate view of the law in order to serve a particular ideological end? What is the duty of law schools to the 99% of students or so who don't practice constitutional law?
By the way, I don't mean to suggest that a "value free" legal education is possible. However, we are capable of fairly accurately judging the actual interpretative or descriptive worth of the various theories when it comes to the law, and on that standard I think it is pretty clear, empirically speaking, which theory "fits" the law better.
When I say legal realism is a delusion, I'm exaggerating for effect. What I mean is that the statist ideology that underlies much of "realism," and which teaches that judges ought not to refer to what the law actually is, but ought to tailor it to serve statist goals, is improper for many reasons. When you consider someone like Holmes, whose perversion of the Fourteenth Amendment and political philosophy to serve the ends of the Progressive agenda, then you see what I consider the model of a bad judge, both on the merits, and because this perspective is so alien to the constitutions--legal, political, and cultural--of the United States. Of course students should be taught who Holmes was and what he did, but they also ought to be taught his flaws.
But I don't intend to get drawn further into a discussion of the merits of "legal realism," or positivism in general, a subject which would take far more energy than I care to expend. Suffice to say that I do not believe that it is inaccurate to say that the law is found and not made. I think the law is indeed found, and that the notion that law ought to be "made" to serve Progressivist ends has proven flawed. Among its flaws is the fact that it is fundamentally inconsistent with the political philosophy of the framers.
Finally, I believe the political philosophy of the framers ought to be taught for no other reason than that it is right.
First, I think it’s worth keeping in mind that one may believe that law is “made” without believing that it was made to serve any particular end, progressive, statist (are they the same thing to you?) or otherwise. A lot of legal rules exist simply because we’ve gotta have a rule.
Second, with all respect, I still don’t see what your argument has to do with the vast majority of legal fields – and by extension why it warrants such drastic alterations to legal education. What does Madison’s political philosophy have to do with the Bankruptcy Code? How does understanding “right reason” help students better understand vertical price restraints? Why should law schools be concerned about the political philosophy of the Framers? (And why are we so sure it’s still right? There’s been a lot of development in that field over the last couple hundred years, as I recall.)
Of course no one, especially Holmes, is above critical review. All our heros – including the Founders – have their flaws, and law students should be made aware of them.
But this is all quite off track to the original point: the case method, for all its flaws, is still the best way of helping students understand the shape and content of the law they hope to practice.
Again, I should reiterate that I did not say students should not read cases, or that professors should not teach how certain areas of the law have changed over time. Students should read, say, Marbury v. Madison, of course. My point was only that a focus on the cases, rather than on concepts, and particularly a method of dropping students into a bunch of cases and letting them pretty much figure them out for themselves, is unhelpful. Effective professors already have watered down the case method significantly, and choose instead to give lectures and then follow those up with cases that illustrate the point. But some professors, particularly in torts, I think, haven't taken up this method as much as they ought to. And some of my professors even apologized for diverting from the case method into lectures! I think a student will understand "vertical price restraints" a lot better if the professor--to parahprase the Mad Hatter--starts at the beginning, goes on until he gets to the end, and then stops.
At this point your complaint seems more with the Socratic method done poorly than it does with the case method (or accompanying "realist" assumptions). And, on that much, I agree. Socratic teaching done poorly is an awful, awful experience.
Done well I still think it has some value -- gotta make a stand for induction -- but too often professors don't have the skill, don't make the time, or don't use the effort necessary for its success.
". . . my ideology is the same as those who framed the American Constitution. . ."
Evil Grin on Face: So I suppose you believe in the legality and propriety of negro slavery. /Evil Grin on Face.
More Seriously: This is why Zeus invented hornbooks.
Even more seriously: You will teach your students Locke and Madison, but many current profs will teach Habermas and Foucault. Do you really want that to happen. There really are worse things than the status quo.
Furhter. Cases, like constitutions, statutes, regulations and rules are the primary source material of our legal system. Lawyers must be able to read and interpret them, if they don't learn that skill in law school when will they do it?
A modest proposal: tim, how about you and me and whoever, set up a summer camp/boot camp for about to be 1L's where we teach out of gilberts (and indoctrinate with locke etc.) With a sliding scale/price discrimination we could make a bundle while developing cadre for the struggle.
Sort of like princeton review is to the lsat,we would be to law school.
Cordially, an arbitrary aardvark.