The Course Source: The Casebook Evolved

• Author: Stephen M. Johnson
• Position: W.F.G. Professor of Law, Mercer University Law School. B.S. (Comp. Sci.); J.D. Villanova University; LL.M. George Washington University School of Law. The author is a member of the Board of Directors of the Center for Computer-Assisted Legal Instruction.
• Pages: 591-654

592 CAPITAL UNIVERSITY LAW REVIEW [44:591

instruction.

8

Although there is still a place for that method in legal

education,

9

other methods of instruction—the carriage bolts and lag screws

of modern legal education—cannot be hammered down with the traditional

casebook.

Several influential studies of legal education conclude that law schools

should focus more heavily on training students in professionalism and in

skills vital to law practice.

10

In addition, the American Bar Association

(ABA) recently amended its accreditation standards for law schools to

require the inclusion of more assessment and experiential learning in their

curriculum.

11

Over the last several decades, many faculty members have

moved away from the traditional Socratic dialogue and case method form of

instruction, at least in upper-division courses.

12

Although many more are

receptive to such change, the Socratic dialogue and the case method provide

faculty with a high level of control over the classroom, and faculty members

are reluctant to abandon those methods unless tools are available to ease the

transition to other teaching methods.

13

The traditional casebook does not

provide these tools. Faculty members constantly identify a lack of teaching

materials as a major impediment to the adoption of the teaching methods

necessary to educate today’s law students for today’s law practice.

14

There

is a great demand for turnkey solutions to implement new teaching

methods.

15

8

See infra Part II.A.

9

See Welch, supra note 4, at 289.

10

See infra Part II.B.

11

See AM. BAR ASS’N, ABA STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF

LAW SCHOOLS 2015–2016, SECTION OF LEG AL EDUCATION & ADMISSIONS TO T HE BAR,

Standards 302, 303, 314, and 315 (2015).

12

See infra notes 69–87 and accompanying text.

13

See Skover, supra note 4, at 289; Transcript, Workshop on the Future of the Legal

Course Book, 33 SEATTLE U. L. REV. 292, 299 (2010) [hereinafter Workshop] (remarks o f

Gene Koo).

14

See, e.g., Skover, supra note 4, at 289; DAVID I.C. THOMSON, LAW 2.0: LEGAL

EDUCATION FOR A DIGITAL AGE 131 (2009); Rhee, supra note 4, at 337 n.157 (noting the lack

of availability of case studies); Larry A. DiMatteo, Contract Stories: Importance of the

Contextual Approach to Law, 88 WASH. L. REV. 1287, 1293 (2013) (describin g the limited

universe of drafting exercises and problems in contracts case books).

15

See infra Part II.B.

2016] THE COURSE SOURCE 593

Teaching materials and pedagogy are intimately connected,

16

and major

shifts in pedagogy can be achieved through the evolution of teaching

materials.

17

For instance, when faculty began to adopt the case method of

teaching in the nineteenth century instead of lecturing from treatises and

commentaries, the transition was facilitated by the development of the

prototypical Langdellian casebook.

18

When the wave of legal realism hit

law schools in the middle of the twentieth century, new casebooks began to

incorporate material other than cases, such as statutes and explanatory text,

to aid faculty who were inclined to shift their teaching focus.

19

Similarly,

when faculty began to incorporate a problem-based approach in their

teaching, casebooks incorporated more problems.

20

Casebooks must evolve

to provide faculty with the tools to redesign their courses before there can

be widespread adoption of new teaching methods that a have a rich focus on

skills, professionalism, experiential learning, and assessment.

21

In designing

the modern casebook, authors should follow the credo of influential

16

In discussing why he authors casebooks, Professor Myron Moskovitz writes, “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. . . . My main job as a casebook author is to make learning law as easy and fun for the

students as the subject matter permits.” Myron Moskovitz, On Writing a Casebook, 23

SEATTLE U. L. REV. 1019, 1022–23 (2000).

17

See, e.g., Anders Walker, The Anti-Case Method: Herber t Wechsler and the Political

History of the Criminal Law Course, 7 O HIO ST. J. CRIM. L. 217, 218 (2009) (describing the

manner in which Herbert Wechsler’s 1941 criminal law textboo k synthesized social science

materials with cases to transform criminal law teaching from the case method to a more open-

ended philosophical approach).

18

See Stephen M. Johnson, Teaching for Tomorrow: Utilizing Technology to Implement

the Reforms of MacCrate, Carnegie, and Best Practices, 92 NEB. L. REV. 46, 77 (2013);

Garvey & Zinkin, supra note 4, at 105–06.

19

See Johnson, supra note 18, at 77; Stephen R. Alton, Roll Over Langdell, Tell Llewellyn

the News: A Brief History of American Legal Education, 35 OKLA. CITY U. L. REV. 339, 355–

56 (2010).

20

See Johnson, supra note 18, at 77–78; Workshop, supra note 13, at 298 (remarks of

Michael Schwartz).

21

Although legal publishers are marketing an array of secondary teaching materials, such

as skills books and law stories books that faculty can incorporate into their course design, see

infra notes 209–215 and accompanying text, those materials are not integrated into traditional

casebooks, and adoption of the secondary materials imposes additional costs (and physical

burdens) on students, see, e.g., Skover, supra note 4, at 289.

594 CAPITAL UNIVERSITY LAW REVIEW [44:591

American architect Louis Sullivan, who counseled, “[F]orm ever follows

function . . . .”

22

Technology should play a central role in the evolution of the casebook.

Today’s students are digital natives,

23

and technology has played a central

role in their education beginning in elementary school.

24

The evolved

casebook should be an e-book, one unlike any e-book legal publishers have

marketed in the past.

25

Rather than a traditional casebook, it should be a

“course source,” a one-stop shop for all of a faculty member’s teaching

resource needs. The Carnegie Foundation Report, Educating Lawyers:

Prepa ration for the Profession of Law (Carnegie Report),

26

stressed the

importance of training students in the knowledge, skills and values necessary

to the legal profession.

27

A course source should recognize that those three

apprenticeships are interconnected. Additionally, a faculty member needs

the tools to train students in all of those areas, rather than assume that a

separate class focusing on the legal profession or research and writing will

develop the student’s skills and values.

28

In addition to the cases, statutes,

notes, and problems included in casebooks today, a course source should

include simulations, drafting, research, counseling, negotiation and other

skills-related exercises, professionalism hypotheticals and problems, as well

as quizzes and a variety of formative assessment tools that faculty can

incorporate into their courses.

29

As an e-book, it should take advantage of

the wealth of materials available online and in a variety of media formats,

by incorporating links to content to put the cases, materials, and disputes in

the book in context, as well as to provide a fuller and richer understanding

of the materials.

30

Ideally, a course source would be created and distributed

22

Louis H. Sullivan, The Tall Office Building Artistically Considered, LIPPINCOT T’S

MAG., Mar. 1896, at 408.

23

This term means th at they rely on computers and video for their education and

entertainment. See infra note 148 and accompanying text.

24

See infra Part III.

25

Many e-books for the law school market are little more than electronic versions of a

traditional casebook that may have incorporated a few hyperlinks to some background

material or secondary sources. See Johnson, supra note 18, at 78.

26

WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FOR THE

PROFESSION OF LAW (2007) [hereinafter CARNEGIE REPORT].

27

See id.

28

See infra Part V.B.2–V.B.5.

29

See infra Part V.B.2–V.B.4.

30

See infra Part V.B.5.