The End of the Law School Bubble

In retrospect, I think my professional life in the law coincided with a golden age.  I've long said I spent my early years pushing against unlocked doors.  Now as I prepare to let go, I'm pretty sure I'm observing the end of a bubble, on the order of the dental education bubble pop in the 80s (in the United States--and in other nations, perhaps today).   Not that lawyers will go away--sorry,no such luck.  But it is hard to see how we'll soon to the palmy days of the 90s (and before?)  Some graduates--a few--will still grab the big bucks. but there will be fewer and they'll have to work for what they get.

Some of these thoughts came into focus today when I listened to a Man Who Knows talk about trends in law school enrollment.  Key takeaway: the decline in law school enrollment and  law jobs may have coincided with, but it is not exhaustively explained by, the 2008 financial market collapse.  Other,perhaps more urgent, candidates include, at the top end, the rise of big data and his trusty sidekick, the search algorithm.  For many  years the mega firms gobble up top talent at high prices for the most dreary of office jobs: combing through hundreds, perhaps thousands, of pages of documents for little nuggets of information that might assist in bashing an adversary's face in as a part of the dance of litigation.  It never did make a lot of sense and apparently those days are over as more and  more of that kind of searching can be done by machines.  

At the other end of the scale, we've seen the expansion of on-line do-it-yourself.  This kind of thing isn't entirely new (I've been a big fan of Nolo Press for years), but ease of access and general convenience seem to be driving an increase in the role.    And elsewhere in the world, we're witness the relaxation of rules on what kinds of jobs must be done by lawyers only: pressure for that sort of thing is bound to reach the United States.  Correspondingly, we're seeing an increase in law-degree-helpful jobs: jobs for which you may better your chances for employment by having a law degree, but for which the law degree is not essential.  Which takes me back to my own law school days when many of my classmates (well--maybe me--) saw the parchment as a job market force magnifier even if we weren't going to practice law.

One seeming anomaly:  a blip up in "public interest" or non-profit jobs, at a time when such entities seem to be experiencing declines of their own.  Can this be right?  It can be right, once you recognize that a lot of these new public interest jobs are being paid for by the law schools themselves to keep the tads out of the marketplace.  The Economist explains how paying pencil out as profitable for law schools, if it keeps them in competitive play for applicants.  Vagrant speculation: are we coming to a day when subsidized postgrad employment will be baked into the cake, something you buy when you write those seemingly exorbitant tuition checks.

The Apple-Warehouse Problem

I can't pretend that I've every word of the new "law school is going broke" meme, but I've read enough so I suspect I've picked up the main themes ("They're ripping of the students!" "They're being creamed by the central administration!"  "Paul Campos is an addlepated numbskull!"  "We're all going to die!").  And enough, I think, to take note of an elephant that is absent from the room.'

That is: capital cost.  So far as I can tell, nobody is talking about the cost of capital--plant, the real estate, the physical facility. I haven't any idea why the cost of capital for any particular law school might be, but it's not negative and not zero, and unless we count it, I don't think we have any idea what he cost of law school might be.

Think it through in terms of a private-sector income statement.  You tot up your gross revenues. You subtract cost of inventory, expenses for sales and general administrative and what not and then you stop.  Or at least pause.  If the number so far is negative, you've got to do something, now: raise prices or cut costs.  Otherwise you're better off dead.  

But suppose the number is positive.  Are you done? No, you are not done.  Then you ask: is the surplus  from operations (above) sufficient to lure in the capital I need to make the business go?  If the answer is "yes," then great, we all go to the seashore.  If the answer is no, then we might as well take our ball and bat and go--where? Well I don't know where, exactly, but someplace where the resources may be deployed more profitably.  Back in my newspaper days, I worked in a cavernous old concrete block monstrosity in the Cleveland suburbs.  Community folklore told us it used to be an apple warehouse.  Apparently "newspaper" was thought more productive.

Anyway--I've never once had a conversation with a law school dean about costs (and I've had a few) where the cost of plant even began to figure.  Example, when we took on a new dean here in Palookaville about 20 years ago he carpet-bombed us about the cost of operations.  We learned some interesting stuff (example: "fund-raising" turned out to be "fund-reducing").  We engaged in anguished bleating about  how much  vigorish was being sucked out by the brass hats across the street.

But not one word about the cost of the physical plant.  Strike that: cost of maintenance, okay, we learned about that.  It's part of the home office vig.   Probably even the amount spent on replacement lightbulbs. But nothing about you-know what.

And it's not just us.  A few years later I was talking to Henry Manne, the guy who more or less reinvented George Mason U Law School.  "And we make a profit!" squealed the profit-minded Henry with malicious glee.   But how much to you allocate to real estate?  Henry wiggled very much like a guy who has just been asked a question he'd never thought of before.  Well, he said, the building was abandoned.

Okay, maybe.  But I suspect somebody could have sold it. The question would be--what would Henry have had to pay if he had to buy it?  That's the question that never gets asked.

[And it may happen more than we guess.  I'm told that Cardozo got that nice building on Fifth Avenue at Twelfth Street as  gift. Something about an old surplus textile factory (it's just blocks from the sit of the notorious Triangle Fire).  But they seem to have turned it into  (along with a law school) a nicely profitable real estate example.  Once I heard a third  such story but I can't remember just now--Seattle?]

I suppose I can think of one reason why this issue never arises.  That is: the leadership of the law school is middle management.  Somebody may indeed take their building way to be devoted to what the planners might call a "higher and better use."  Say, computer science.  Okay, fine.  That means that giving it to a law school and denying it to computer sci  is an opportunity cost which isn't being explicitly measured at the law school level.  But I bet they know somewhere up the line. And at a place like NYU, say, plunked down in the middle of hugely expensive and profitable urban real estate, I bet somebody knows pretty exactly.

That's it; there is no real secret message here.  Only that we are not measuring the true cost of law school, and we are almost certainly underestimating.  Oh, and another word about the newspaper in the Cleveland suburbs.  I said that the folklore was that we began life as an apple warehouse.  One of the wise guys drew a D&D-like chart to describe the history of the enterprise. Way over at the beginning--the left end--it said "apple warehouse."  And at the right, the end, it said--yeh, you guessed it.

The New Doors and The Changing Structure of the Workplace

I'm back in the classroom again for something like the 45th year (portal to portal) and just for the record I'm having a grand time--pleasant students, interesting stuff to teach or learn.  A bit of my happy face derives from the fact that this year (unlike some) the Good and Great actually assigned me an office weeks in advance, and put a nice little metal nameplate on the door.  As a recalled retiree I do get a little squirmy about my identity here, though I really shouldn't take it personally: we (!) have been convulsed in a major expansion-remodeling for longer than anyone wants to remember and even some of the mainstays have found themselves at times living in trees.

The new office is okay and in truth I don't spend a lot of time here, but I notice one intriguing wrinkle: automatic-closing doors.   Yes: unless you direct otherwise, the door suavely swings shut behind you, whether you are in or out.  And "direct otherwise" pretty much means scaring up a wedge and kicking it into place.   And unless you remember to set the latch, the unwedged door will lock behind you, meaning you have to go down the hall to the library desk to borrow a key, or (if you are inside) to get up and cross the room whenever (rarely) anybody knocks.

Perhaps you can see where this is going.  I do notice that most of my (!) colleagues work with their doors closed.  And it wasn't always this way.  In the old days, most people worked with their doors open.  And yes, people popped in and out all the time.  My goodbuddies were (a) next door (b) across the hall and (b) two doors down.  If you learn by gossip, we must have been some of the best learners around.

These days as I say, most of the doors are closed.  But  it's not just the doors: back when dinosaurs strode the earth, there was a regular morning coffee klatsch and a group that assembled regularly for lunch.  I sometimes found them boring or tiresome, but I was pretty much as a regular at the former, if not the latter.  I seem to remember there was even a ladies' auxiliary although I think that faded fairly early.

This is probably beginning to sound like a whine but I don't really mean it that way. Times change, people change, big deal.  But they do change--and really, doors are probably just an incident: there are all kinds of forces that impel us (them?)  to more atomization. Example, in the digital age it is so much easier to work at home (or the coffee shop: I, a serious coffee shop maven, see two of my colleagues down there much more often than I do in the building).   Perhaps more important, our (their?) career advancement, even their job security, probably depends more on people on the other end of the Skype hookup than it does with anybody in the building.

As I write, I can see that whatever I'm saying has to do with much more than the law school, or even the university.  It's certainly true of (what I hear about) law firms, and progressively more true of corporate life in general.  Corporations used to make stuff; these days, as one of my colleagues likes to say, they are just loci of the intellectual property rights.  Or networks of hustlers entrepreneurs.

And?  And?  DamifIknow.  I must go talk this over with somebody.  Unfortunately, his door is closed.  Or, if he was hired in the last ten years, he'd probably have me shot for a burglar.

Tough Love in the Law School

From the syllabus for Garrett Epps' Con Law class at the University of Baltimore Law School:Class attendance and participation:

(1) Attendance in this class is required. Students with more than two unexcused absences may be denied permission to take the examination. Under law school policy, five or more absences for any reason require withdrawal.

(2) Class participation is (a) in small assigned groups that will consider specific problems and (b) in the larger class in which we will discuss the problems you have worked through in your small groups. Neither the small-group nor the full class participation is optional. I will not accept an answer of “pass.” Students who are unprepared on a specific day should notify the instructor before class begins; they may be called on at the next class session. Students who are stumped by a question from the instructor may ask for help from other members of their small group.

 Also:

Class time will often be devoted to discussion rather than lecture and summarization of cases. During discussion of hypotheticals or policy issues, there is to be no use of laptops. Laptops may be used during lectures. However, “laptop use” denotes only taking of notes or consulting casebriefs you have prepared. It does not include any use of the internet during class. Students who do use their computers for non-class uses may be asked to leave the class, as these uses are distracting to both their fellow students and the instructor.

(My God) one of my colleages asks, reverently, does he get any students?  I don't know but my guess is yes.  He is teaching a glamour subject.  He's  telling you the price of the ticket before you get on the bus.  My guess is that he might have made his into a glamour class.  Maybe there are "I survived Garrett" tee-shirts.


FWIW, I've never met that guy.  I found the syllabus on the web, and he graciously assented to my request to excerpt it.   He came on my radar because he provided some of the best, or at least the funniest, commentary I read during this week's Supreme Court oral arguments; see e.g., here.

Law School Down

  Joel flags me to the law school news of the morning: applications are down.  Ho hum so far but this one is from the Yale Daily News, meaning it is presumed to be of interest to all those bright young Dink Stovers and Frank Merriwells in the undergraduate colleges who had been entertaining fantasies about their place in the world's primo law school--or, horrors, some other law school that might be honored to adorn itself with a Yalie.  I like it especially how the piece picks up on a theme of mine:

But at Yale, law school is not just a safe haven from a rough job market. Sijia Cai ’11, who applied to law school this year, said she thinks many Yalies apply to law school because it transitions smoothly from an undergraduate liberal arts education.

“I think it’s a common goals for political science and history majors, which are really popular majors at Yale,” Cai said. “A lot of students are aware of the other careers a law degree may lead to and they are looking for an outlet for their liberal arts majors.”

Deconstruct it: I think there are a couple of good points here.  One, law school has long been a beguiling choice for kids who had no strong vocation for law, but who wanted to stay out of the job market a while longer  (and who can blame them?).  And two: if undergrads look forward to law school as "advanced liberal arts," for their part law schools are looking more and more like the history and polisci departments that the kids left behind (or, perhaps, really did not leave behind).  Skim the catalog of any first- or second-tier law school --plus some others--and you'd have a tough time distinguishing it from a jazzy undergraduate menu.  Consoling and fun, but does it prepare you for a  career heavy on fairly boring and onerous detail work?   On the other hand, if you are not really bound for the profession anyway, how much does it matter?

Second Thoughts on Law Grads as Schoolteachers

   Mr. Speaker, based on various offline conversations, I wish to revise and extend my previous remarks about law students as classroom teachers.  In sum, I'll stick to my guns that we are seeing more kids who do it because they have to, but I am willing to accept some nuance.

Example: true that we've seen it all along--law grads doing into schoolteaching.  I think a difference in past years was that students who did so were often making a positive career choice, rather than opting for plan B.  A lot of law students in the old days had no compelling vocation for the law: they had a somewhat undifferentiated notion that they wanted to find a meaningful job that they would enjoy.  Opting for school teaching (or, for that matter, social work, parole officering, whatever) might well make as much sense as (or more sense than) coping directly with their supposedly chosen profession.  And in those halcyon days when law school was close to free, this wasn't such a momentous decision.  These days, with the debt monster sitting on your head, plan B, even if intrinsically attractive, looks a lot less alluring.

The Wichita bureau points out a more positive possible motivation.  Very often, he rightly notes, the kid that goes into public-school teaching with an advanced degree gets some sort of wage sweetener on the front end (do they also get some sort of debt relief for taking low income jobs?  I am shamefully ignorant of the facts here, but it certainly wouldn't hurt my feelings if they did).

More: the person with the law degree who starts out in teaching  is very likely to find a way onto the fast track towards administration. Ignoto points out that one of our more distinguished grads followed some such route: she's now superintendent of schools in a prominent, high-prestige (and, I suspect, very demanding) east coast community.  One does not doubt that she uses her law skills every day.

Meanwhile, make no mistake: there's every reason to believe that teaching, for those who have the knack, may be a wonderfully satisfying career choice (Note to self: among my acquaintances, who is happier, the lawyers or the teachers?  I'm thinking, I'm thinking...).   Meanwhile, this week's Economist tells me that "Last year 12% of seniors at Ivy League colleges applied to Teach for America, which sends graduates to teach at tough schools for two years."  Could be that the old-fashioned model of teach-as-prep-for-professional school is not dead yet after all.

Made-up Datapoint of the Day: Law Careers

I note that one of our more creditable recent graduates has taken work as a middle school teacher.  Kudos to him for finding honorable employment, and congratulations for finding, in a tough market, employment any sort.

But on the principle that one swallow makes a summer, I wonder if we see a new modality here.  It used to be that a bright young lad would spend a couple of years teaching public school and then go to law school. Worked mighty well in a lot of cases: build a little maturity, learn a bit about dealing with people, take a breather from studentship, all those good things.

I'm wondering whether now, in this parlous new job market, the pattern will go into reverse?  Will we see a bunch of schoolteacher with professional degrees (and, I assume, the accompanying $200k marker down at the bank)?

The New Wing

Went to the opening of the new wing at the Law School this morning.  I was late so I had to stand in the shade which turned out to be a huge improvement over sitting in the sun.  It was pretty much what you would expect--the requisite round of introductions--Dean this and Dean that--and a full platter of "without the help of," etc.  And I really shouldn't be snooty: a project like this takes not only a ton of work but a ton of  human coordination--none of it mine--and so if these guys feel like taking a victory lap, I should not begrudge them.

It does provide an occasion, however, to marvel over the tendency of buildings to metastasize.  When I interviewed for my job here in 1968, they were still housed in quonset huts--they kept telling me the new building was due any day and sure enough, when I turned up for work in the fall, there it was: spanking new, albeit spare and rather government-issuey in appearance.  "My God," a friend said of the picture, "it looks like a Mormon trade school," but I'm not sure I ever saw a Mormon trade school so I can't say.  It was in truth nothing much to admire, but it mostly worked, even if often crowded and inconvenient, too hot, too cool, whatever, it mostly  worked. Starting today, we have a much grander facade and a lot more state-of-the-art this and that.  I know we can't  not do this sort of thing--one person already this morning told me about a beloved family member who had passed us up for Santa Clara because the building looked better.

But does anybody read C. Norchote Parkinson any more--about how grand architecture comes into being only after the institution has reached is prime: the Rome of the republic was much tougher and more resilient than the Rome of the emperors that we remember; the Catholic Church that built the breathtaking baroque churches was a Church under siege.  Or Jane Jacobs about how much more functional were the old city neighborhoods before the Robert Moses battalion got its hands on them?   I remember showing up as a grad student and Yale and finding a physical facility not a bit (well, maybe a bit) grander than the Tier-4 law school I had just left.  And the London School of Economics in the 70s--boy what a nest of chutes and ladders that was, though perhaps the most intellectually alive social science institution in the world.   At what point does an institution simply choke on its old buildings?  Are there Barbarians watching us from their encampments in the foothills today, thinking this place would after all make a pretty good apple warehouse?

Farnsworth's Legal Analyst

Getting ready to begin my 40th year in the classroom, I took a spin through Ward Farnsworth's The Legal Analyst: A Toolkit for Thinking About the Law (2007). It's fun and rewarding on its own terms, but also a rewarding opportunity to reflect on how things have changed over my professional lifetime. And before anything else, I should specify that Farnsworth is a superb explainer, topnotch at packing some difficult concepts in accessible, yet still intellectually honest, terms. Farnsworth says in his preface that he hopes it will appeal to "law students, lawyers, scholars and anyone else with an interest in the legal system." Right enough, although I suspect its primary audience may be students just finished with their first year, perhaps waiting for a jingle on the employment hotline. Or perhaps even more important, it will be another one of those books that the professor tucks in his own top drawer, so as to trade on some bits of intellectual capital that he hasn't earned.

As one might guess, the heart and soul of Farnsworth's book is the stuff drawn from "economics," or more precisely "law-and-economics," that congeries of insights, puzzles and provocations drawn mostly from the first-year micro econ curriculum. And here is the field in which the evolution of the modern law curriculum is most obvious. I sat down for my first law school class in the fall of 1963. That would be three years after the publication date for the publication of Ronald Coase's The Problem of Social Cost, which serves s the law-and-econ analog to the role played in mainstream econ by Adam Smith's Wealth of Nations. My own guess is that none of my own professors* ever heard of Coase--or if they had, that they ever troubled themselves to find out much about him. This isn't to say they were bad teachers. Well: some were bad teachers, but one or two (or three?) were among the best teachers I ever had in my life. They just didn't see this law-and-econ stuff as in any way relevant to the (formidable?) traditional education that they undertook to impart.

I suppose I read Coase before I started teaching in 1969, by which the article had been abroad on the land for nine years (and Farnsworth himself would have reached the age of two). I have to admit I had trouble grasping it at first, but in this apparently I was not alone. Anyway, I got on board soon enough that I was able to track a good deal of the intellectual current as law professors grasped and then embraced the new economic learning. For a while it seemed as if everyone was styling himself a "law and econ" person; hiring committees were hot for law-and-econ people, and everybody was offering, or planning to offer, or pretending to offer, law and econ courses.

What was my point here? Oh yes: my point is that I'm struck by how much those days have passed us by now; to what extent "law and econ" has become common sense, common knowledge, part of the substrate. We once thought that Coase, etc., required a separate course. I suspect now that a good deal of the Coasean wisdom has passed, at least in vulgarized form, into the mainstream curriculum. The same might be said for some of the other, closely related, topics in Farnsworth's book: the stuff on game theory, for example, or the small dose of basic probability learning.

If I'm right so far, it may seem that I raise an awkward question: to what extent are Farnsworth's insights part of a "toolkit," and to what extent just "stuff that you learn in law school?" I don't have a pat answer to that one and in any event,I suppose I am taking aim at a moving target. But if we've reached the point where one guy can sketch the stuff out and put it into a (highly readable) short book, then we are veering close to the point where it isn't really specialized knowledge at all.

This offering provides background for my take on the latter portion of the book, where Farnsworth discusses topics from (as he calls it) "psychology"--with chapter headings like "hindsight bias" and "attribution effects." If you've followed the literature at all, you know we are now out there beyond the bob wire, in tht uncertain no-man's land where the economists and the psychologists come head to head. Or where, more sharply, the economists are laying down an imperialist claim to be masters of all knowledge.

The provenance is clear enough. An abundance of evidence has persuaded even the diehards that traditional economic models of human behavior were crude to the point of caricature. The current agenda is to try to find ways to refine the crude models into a more subtle and appreciative understanding of human behavior. It's all the rage and it has indeed generated some interesting results.

Well, fine. Yet I have to wonder how much of this stuff counts as "new insight" and how much as "things we knew or should have known all along." I need to tread with delicacy here: I do not want to come across as a total Philistine. I suppose it does help at least to be reminded that people value risk asymmetrically; that the benchmark determines the agenda, and that the person who sets the agenda wins tahe argument. Maybe I want to say that these are all things that a smart cop or a successful political consultant knew all along.

Indeed, maybe it is only the professors who did not know--and I don't think this suggestion is quite as ridiculous as it might seem on the surface. I suspect it might well be that professors are the class so disposed to get bound up with their theories that they forget what they might learn from their intuitions. And recall Peter Drucker who said that the hardest thing to know is what you are good at, precisely because you are good at it, so it becomes invisible. A corollary may well be that one becomes a professor of (a) sociology; (b) psychology, (c) economics; (d) law, precisely because one does not have a knack for those things that make up the common-sense parts of the discipline. Admit it now: how many of us heard a psychologist at a seminar presentation report "we were surprised that"--only to report something tht doesn't strike you as very surprising st all?

Or maybe not. This seems to me to be a question rife with difficulties which neither I nor anyone else has explored with the insight it deserves. Meanwhile it is good to have Farnsworth as a field guide to the state of play. I think I'll stock up on a few extra copies, for young friends who are thinking about taking the plunge into law school themselves.

--
*At the University of Louisville, where I got my first law degree. After Louisville I did a "cleansing masters'" at Yale, where Coase was hot stuff.

New Age Classnotes

Here's something I learned today: my student illustrate their classnotes. So, if they are reading Pierson v. Post, they slap in a picture of a fox. Makes all the sense in the world.

(Attached picture appears to come from Fox v. Maus, which is a different matter altogether.)

Education Cost Factoid of the Day

Erwin Chemerinsky, the "first and second" dean (link) at the new UC-Irvine Law School, last night at a forum of bankruptcy lawyers (link):

He is hoping to give every student entering in 2009 a full scholarship

First-Ever Underbelly Sartorial Comment

I see that a law professor is publishing an article arguing that law professors ought to dress better (link). As a charter member of the unmade-double-bed school of academic attire (and frequent winner of my own school’s worst dressed award), I need to remind the professor that:

• There is an inverse correlation between quality of costume and prestige of faculty: the fancier the school, the scruffier the costume. So if the dean does want his faculty to dress up, he had better make sure they don’t do it when the accrediters are around; and
• Neckties cut off blood flow to the brain.

And if he is looking for allies in the law firms, he is fighting a losing battle.

Nostalgia note: I was walking down the street in Istanbul once when a voice yelled out: hey, you look like a professor, you want to buy a carpet?

More on Caselaw (aka So Much for Professor Kingsfield)

Re my rhapsody on caselaw--my friend Noel weighs in on Casner & Leach :

A. James Casner was my Property I professor my first year of law school. It was one of the highlights of my law school experience. His erudition and precision were always impressive, sometimes breathtaking, and I have long thought of myself as reasonably precise and attentive to detail. Bart Leach had a very different reputation – relatively rough and tumble although none the less concerned with the life lessons to be learned from property law. A very impressive duo among a very impressive faculty.

I went to law school in the provinces & so far as I know, never laid eyes on either Casner or Leach. They both had street reps that conform to Noel's memory. Leach in particular was famous as something of an original--he wrote doggerel verse which he would perform while accompanying himself on the concertina (accordian?).

In Kentucky where I went to school, we had a case called Bedinger v. Greybill's Administrator. Decendent left money "to H for life, remainder to his children." Apparently H had no children, but he did have a W--so he adopted the W. Unencumbered by current research, my memory is that the Kentucky court sided with W. I think it is the first time I ever heard the phrase "laughing heir"--apparently the other claimants were distant cousins who had essentially nothing to do with the decedent.

Anyway, I heard that Leach had written a song about it, so I wrote him a letter asking for a copy. The next mail brings a full set of lyrics, to the tune of "On Top of Old Smoky:"

Oh father, dear father, let go of my blouse,
Since I am your daughter, I can't be your spouse.

...and so forth, for eight or ten verses (they are probably in a Tupperware bin around here somewhere). Apparently it didn't trouble him at all to share this stuff with a total stranger, and with a Kentucky postmark at that.

Fn.: My friend John tells me that "aggravated incest" is a crime in Kansas. What is that about. No, don't tell me...

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.