On Writing a Casebook

• Publication year: 2000
• Citation: Vol. 23 No. 03

SEATTLE UNIVERSITY LAW REVIEWVolume 23, No. 4SPRING 2000

On Writing a Casebook

Myron Moskovitz(fn*)

I suppose every law professor, at one time or another, has mused about writing a casebook. "This one I'm using is OK, but . . . ." I have written several casebooks in two different areas of law and for two different publishers.(fn1) I have also written another law school book for a third publisher.(fn2) Along the way, I have learned a thing or two. If you are thinking seriously about writing a casebook, you might find these tips useful. In this Article, I will discuss my theory for writing a casebook, how to organize the book and select cases, and how to get your book published.

I. A Theory on How to Write a Casebook

A. Why Write a Casebook?

It takes a lot of work to write a casebook, so you'd better have a good reason to do it.(fn3) If you are relatively happy with the casebook you are using, don't write a casebook. The book you would write might be so similar to the one you are using now that there would be no significant market for it. Write a casebook to fill a need: your own. This will produce your best work, as you will put your heart into it.

For several years, I taught criminal law from someone else's casebook. I tried one, and then another. Both were pretty good, but neither "fit" well with what I wanted to do in my classes. All professors face this difficulty, and we usually resolve it by supplementing the book with our own materials, such as cases or articles. I did this- for awhile.

My particular bent is to teach with problems. I decided early on to treat my students as lawyers trying to solve clients' problems. So I give students a complex problem to chew on in every class, using the materials in the casebook as a "library" of sorts, just as a real lawyer would use a group of cases, statutes, articles, etc., to analyze a client's problem. The students work on the problem before class, and during class I help them try to solve it.

The books I used contained an occasional short hypothetical, but no complex problems. So I wrote my own problems, and we used those. But I wasn't really satisfied. The cases and other materials, selected by the authors of the casebooks, were not selected for use with problems. They worked, but not well. For example, a chapter on self defense would contain four or five cases, each from a different jurisdiction. Rarely would a real lawyer with a real case use such a "library." Almost always, a lawyer works with cases (and statutes) from a single jurisdiction, analyzing them to see how they interrelate. Trying to use a multistate group of cases to solve a "real" problem was like trying to fit a size nine foot into a size eight shoe: you can force it in, but it is not comfortable.

So I decided to fill a need: my own (and, as I saw it, the needs of my students). There was no published casebook on the market that did the job I wanted done, so I did it myself. Initially, I did not think of publishing a casebook-just writing one. I wanted it for my own classes. After I wrote it and used it (in photocopy form) for a couple of years, it occurred to me that there might be some other professors around the country who would want to use my approach. I then sent the manuscript to some publishers and found a company that wanted to publish it.

This approach is quite different from a "market-oriented" approach. I did not survey the casebook market, look for a hole that might need filling, and then fill it. I filled my own need. If the product of that effort filled the needs of other professors, great. If it didn't, it still served its most important function, helping me teach my students to my maximum ability.

Lucky for me, a publisher felt that there were other professors who might feel the same need, so it made business sense to publish the book. If no publisher felt that way, too bad for me, but I wouldn't (and couldn't) write a different book to satisfy "the market." I couldn't put my heart into filling a need that wasn't my need. A casebook might not be great literature, but a lot of creativity goes into it. I can write my own book, but I can't write someone else's-even if I could make some money doing it.

Speaking of money: do not write a casebook to make money. With casebooks retailing for over fifty dollars apiece, there are big bucks in casebooks, but don't expect to see too many of them. The casebook pie is sliced into a lot of pieces. With few exceptions, each author's cut is not great. It's steady money, coming in twice a year as long as the book stays on the market, but it probably won't amount to more than four figures-good pocket money, but don't plan to give up your day job.

There are other sources of satisfaction. There's ego, of course- knowing you've done something well enough that some publisher is willing to put money into it and some professors are willing to assign it. There's name-recognition, which might help your career. And, there's contact. Having my name on a casebook leads other professors to contact me about various issues, and I get a lot out of these interactions.

You could spend the time writing articles instead, but I have found that I can put in a casebook a lot of the points I would have made in an article (not as extensively, of course). It's your book and, within limits, you can pretty much put what you want in it. While an article might sit on a shelf for years gathering dust, my casebooks are in use every day, year after year, and I like that.

B. Casebooks and Scholarship

Will writing a casebook bolster your reputation as a scholar? Maybe, but probably not. Many professors consider casebook-writing a rather low form of scholarship, if scholarship at all. Indeed, some tenure committees give little or no credit for casebooks.(fn4)

However, an argument may be made to the contrary. While the long exposition typical of law review articles is out of place in a casebook, a casebook author can set out new ideas in shorter form. I often explain my take on a case or concept in a note following a case or topic. While I try not to preach, when I feel strongly about the direction a case (or group of cases) seems to be taking the law, I occasionally take up a bit more space, setting out my views in a page or two.(fn5) These musings will probably reach a much broader audience than my law review articles do-an audience that will influence the direction of the law for years to come. Some of the law students who read my views will become law clerks forjudges, and others will argue cases in this field.(fn6) Others will write law review articles themselves and might use my ideas as starting points.

Also, don't forget the teacher's manual. This booklet is addressed to a more sophisticated audience: professors. Here the writer can develop and propose many ideas-large and small-on a higher level and in more detail, often reaching an audience larger than that of the average law review article. (My teacher's manuals run between 100 and 150 pages.) Arguably, this comes within any reasonable definition of "scholarship."

C. Casebooks and Pedagogy

My main goal in writing a casebook is not scholarship, but better pedagogy. Having taught for many years, I've learned a thing or two about law students-what motivates them and how they learn. When a student comes to see me about an exam grade or about some substantive question, as our discussion concludes I usually ask him or her, "By the way, what do you think of my class? What do your fellow students think of it? How about the casebook?" Students are usually pretty straightforward with me (though I might need to press them a bit at first). I also interact with my students in class, of course (via Socratic questioning and the like), and I watch them to see if they are interested, puzzled, or drifting off. If I sense something is wrong, I might ask the class: "How come no one is getting this stuff? Is it the way I'm presenting it? Is it the book?"

If there is a problem, sometimes it lies with me, sometimes it lies with them, and sometimes it lies with the casebook. If the students have a bad day because of commuting problems or the like, fine. But if the problem seems to have a more recurrent cause, it is my job to deal with it, and sometimes the casebook is the recurrent cause. I can't blame all students for laziness if they can't bring themselves to concentrate on boring material. The casebook writer or the teacher who assigned the book, not the students, is responsible for the boring material.

My main job as a casebook author is to make learning law as easy and fun for the students as the subject matter permits. I don't (and can't) make the law easy. I don't avoid hard cases or issues and select easy ones, but I try my best to make the learning process easier. By doing this, I make teaching law easier and more enjoyable.

II. Writing the Casebook

A. Casebooks Serve Two Audiences: Professors and Students

A casebook should serve the needs of both students and professors. Professors need a casebook that adequately covers the key issues of the course, stimulates the students to do the required reading and think about it, and furnishes the basis for class discussion. Students need a casebook that is readable and interesting.(fn7) If the casebook is enjoyable to read, students will get the most out of it.

As I am writing...