The Law School Casebook as Work of Art (aka Remembering Casner & Leach)

A lot of law students profess to hate law school. Maybe they mean it; maybe they just think it is the thing to say. At any rate, I was not one. I thought law school was one of the most entertaining things I ever did in my life.

Partly, this was just personal: I was 28, in a career that seemed to be going nowhere, and this was my ticket out. But it was not just that. As my friend Ellen said: every day is a little story.

Exactly. One thing Ellen and I had in common was that we had worked for daily newspapers. So perhaps we were attuned to the possibilities of story. Anyway, I found the reading of law school cases to be high entertainment.

I remembered law school, and Ellen, and little stories, the other day as I was throwing out some old papers and I found this, which I had laboriously tapped out on my old (even then!) Underwood in the fall of ’63. It comes from the first edition of Casner and Leach Property, one of the old war-horses of the law school classroom. The piece is called “Homily on Minimum Pain and Maximum Profit in Reading Cases.” C&L (it reads like Leach) are discussing the case of one Cobb who had sued a railroad. They make my point better than I could make it myself:

The flavor of the case—the dogged persistence of the litigious Cobb, the railroad trying to wear him down, the red-faced Supreme Court having to eat its first opinion, reversing itself on the grounds of ‘excessive damages,’ and having another jury (of Cobb’s neighbors) slap the case right back at them at substantially the same figure. … The winning party and his lawyer will regale their friends with details of the triumph for years; the losers will say as little about it as possible. If you sense the humanity and drama of the conflict, while still focusing principal attention on the matters of legal significance, you will enjoy it more and, for that reason, get more out of it. … Each case should be to you an item of vicarious experience. If you could only live long enough, you would find the apprentice system the best method of learning law. … Next best is vicarious experience—and this is what the reading of cases offers you.

A. James Casner and W. Barton Leach, Property (1951)

I admit, I had embarked on the law school path with a good deal of trepidation: if this doesn’t work, what will? I can still feel the sense of recognition and relief that overtook me when I read—and grasped the point of—this passage.

To cleanse my mind while hacking through the jungle of case law, in those days I was always reading John Dos Passos’ USA trilogy about America in the decade after World War I. For all kinds of reasons, I think USA may truly be the great American novel (just a few days ago, guest-blogging for CreditSlips, I excerpted a Dos Passos bit about Henry Ford). But—as I guess I dimly recognized even back then—there is a more than trivial overlap between Dos Passos (on the one hand) and Casner & Leach. Dos Passos more or less invented the “kaleidoscope” or “jump-cut” novel—half a dozen interweaving stories, interspersed with “newsreels,” and vignettes of more-or-less-accurate history, to paint a full-bodied three-dimensional picture of the world. Note to self, write an essay on the casebook as work of art. Or maybe this is it.

Fn.: Apparently C&L is still in print, but Cobb and the railroad have gone on to the great casebook in the sky. For the next edition, the editors might want to rethink that decision.