The Disappearance of Legal Method - Richard Cappalli

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I. INTRODUCTION

This article postulates and proves that American legal educators in worshiping rules, practicalities,

and other lesser gods, are failing to inculcate in their students the methodology they will need in the

future. Indeed, the danger is even greater. The strength of the Anglo-American legal tradition is

found in its methodology, the "legal science" by which it creates, elaborates and applies law. Thisarticle speaks not of oil which smoothes the passage of parts, but of the critical tools for building and

operating a legal system. This core material is disappearing as the American law professorate rushes

to the edges of the legal system in pursuit of practical skills, radical theory, story-telling, victimology,

"alternatives," economics and other tangents.

At one level we must worry about each student's equipage. Students will become lawyers and judges

and will then need to handle primary legal sources relevant to their clients' or the courts' affairs.

Rules learned in law school will be forgotten or will have become obsolete, and the lawyer or an

underling will freshly have to dig out case law, statutes or regulations. At such a moment, prior

training should capacitate the student-turned-lawyer to understand and utilize the materials in a

professionally competent manner. Effective utilization requires a deep appreciation of both the full

potential and the inherent limitations of those materials when applied to a client's needs or the

judicial task. No one will doubt that it is the law schools' responsibility to anticipate and provide for

that moment so I will offer no arguments on that point. What I will demonstrate is that the American

legal system has much to say about how lawyers should go about reading and using legal materials

and that legal educators can teach what the system says. I will further show that, despite this obvious

and imperative pedagogical duty, schools are not offering the intellectual tools lawyers need to

perform the fundamental task of handling source materials competently.

This is the micro-perspective, the image of the single student without needed skills. We must also

worry about the phalanx. What will become of the American legal system when the phalanx oflawyers-without-method marches into the twenty-first century? The methods, which I describe in

Section II, are the current guarantors of critical system values like impartiality, neutrality, certainty,

equality, openness, flexibility, growth. Should "legal science" become an artifact, by what means will

American law attain and assure these values? I am not positioned to pursue this larger inquiry, but I

invite the reader's imagination to enter this broader sphere.

I find several defects in American legal education which combine to endanger method. One is the

disappearance of its teaching as a discrete subject. I examine within today's legal curriculums and

compare them with those in the seventies. This comparison documents a distinct decline in the

teaching of legal method as either a mandated first-year course or an upperclass elective. Anotherserious problem I uncover is the pursuit of substantive rules and information in casebooks to the

sacrifice of method. My study of several casebooks used in traditional first year courses

demonstrates the impossibility of teaching methodology from these texts. The editors of these books

have ripped apart the legal materials they report, cutting out those parts which, we shall learn, are

critical to understanding how courts handle primary legal material. Another cause of the methods

crisis is the seeming assumption that this subject is easy to teach and can be done in quick

introductions at the outset of law school, such as in the opening classes of the research and writing

course or in a "pre-school" orientation. Yet my search into the research and writing courses and

typical "introductory" material finds them to be inadequate to the task when the complexity of legal



method and its instruction is properly appreciated. Hopefully the reader will learn from this article

that the teaching of legal methodology is too serious and difficult to be ignored or short-shrifted.

This work was underway when Alan Watson published Introduction to Law for Second-Year Law

Students in the Journal of Legal Education. Watson preempted the heart of what I intended to say, so

this work can only be considered as supplementary --backing and shoring his main ideas. Watson and

I share the belief that legal operations, competently done, are rarely simple, as several law schools

would have us believe. What mediates between legal authority and the facts of a controversy is anenormous complex of information, ideas, techniques, traditions, understandings, and thought

processes comprising a package which Watson calls "Introduction to Law," which I call, in the

remainder of this work, "Legal Method," and which is also known as "Legal Process" and "Elements of

Law."

In the fifties and sixties several textbooks were published and many sets of mimeographed materials

created which offered instruction on the fundamentals of legal reasoning and methodology, as well

as the necessary background on the history, functions and interrelations of American legal

institutions. During those decades these materials were the backbone of mandatory first year

courses. I am mostly ignorant of what was done in prior decades, but I suspect that law professors inthe first half of the twentieth century were much closer to the legal profession than today's

academics and, consequently, Legal Method permeated everything they taught. Special books and

courses were not needed because pedagogy combined with "full text" materials to teach Legal

Method throughout the curriculum.

When I arrived at Temple Law School in the mid-seventies, I found a curriculum without such a

course. I also found some colleagues who decried its absence. Marina Angel, like me, was taught

"Legal Method" at Columbia, Jim Shellenberger took the famous Hart and Sacks "Legal Process"

course in an advanced offering at Villanova, and Mike Mather, now practicing law, had taken the

"Elements" course at Chicago. We were the nucleus of the group which, in time, elbowed "Judicial,

Legislative and Administrative Processes" into the first-year mandated curriculum.

We were unknowingly rowing against the historical tide. While we were bemoaning the absence of

Legal Method in the Temple curriculum, law professors around the country were bemoaning its

presence and pushing it entirely out of the curriculum. A majority of Temple's law faculty could not

conceive of a competent legal education without these fundamentals, but others thought differently.

Some perceived themselves, like Socrates with lantern, as walking method teachers: "I teach method

through torts." This is the argument that method is taught "pervasively." Why teach it separately

when it is intrinsic to all courses? Others, awash in seventies' cynicism, thought there was nothing to

teach. Method is a ruse, a camouflage for political repression. Instead of 42 hours, it takes but a

second to say "law is politics." Yet others were feeling the pressure of expanding doctrine beingchased by ever-thickening casebooks. Finding themselves teaching a diminishing portion of their

"core" first-year subjects, this group lobbied for more credits and Legal Method, in its perceived

amorphousness, was an easy subject to raid. Yet other groups pressed for popular new coverage:

more practice-oriented teaching ("clinical") as early in the curriculum and as much as possible; more

ethics; more "ADR"; more jurisprudence; more freedom of choice for 1L's. These waves of curriculum

ferment swept the country and drove Legal Method into obscurity.

All of this has produced the 80's and 90's graduate, someone with an eclectic smattering of

information, an abundance of practice, a sense of ethics and dispute resolution alternatives, and a



weak grasp of the legal materials the student must employ in the practice of law. This opinion is

corroborated by Judge Harry Edwards, who sits on the D.C. Circuit and reads many briefs and hears

many arguments. He has found,

a lack of depth and precision in legal analysis....[T]oo many lawyers demonstrate a lack of familiarity

with or understanding of controlling or analogous precedent. ... [T]oo many attorneys fail to assess

how an action in a particular case may affect future cases or future developments in the law.

The negative tone of this article is not meant to diminish appreciation of the great strides legal

education has made in several important areas. Schools have never taught more rules and doctrine, if

that is believed important. Students now have multiple opportunities to apply those rules in practical

settings thanks to the great success of the clinical movement and the parallel expansion of moot

courts and moot trials. Ethics is high on legal education's agenda, as it should be, and is increasingly

taught. More and more resources are pouring into the teaching of writing, research and computer

use. The exclusive focus on litigation is dissipating, and students are learning about mediation and

other alternatives. Student journals have proliferated and many students can now test their scholarly

capacities.

American law schools have taken upon themselves much of the education which supposedly

occurred in law offices in an earlier day. All of this is to the good. From my perspective, however, I

wonder about the depth of understanding of the relevant rules and doctrines students, soon-to-be

lawyers, will bring to these tasks. As this article will make clear, legal rules do not lend their kernels

readily. A host of principles, concepts, traditions and understandings, some tacit, must be brought to

bear upon primary legal sources for their competent use.

II. THE SUBJECT OF LEGAL METHOD

A thumbnail sketch of Legal Method will be helpful to readers from the many law schools where the

subject has not been taught. The reader must first understand that Legal Method does not concern

itself with the principles, doctrines and rules comprising a jurisdiction's substantive law in a specific

field or in toto. It does concern itself with the methodology employed, principally by courts, to

create, elaborate and apply that substance. Think of a mechanic and her tools in constructing a

machine. The completed product is like the rule; its components are legal vocabulary, concepts,

definitions and principles; the worker's tools and knowledge of their use are analogous to method.

The tools can be used to construct or dismantle, to add on or downsize.

In tracing the development of Legal Method in seventeenth and eighteenth century England, the

forefather of American juridical methodology, Harold Berman and Charles Reid defined the subject of

their study as "a systematic body of knowledge generated by the law itself, defining its functions and

the ways in which it operates."

They further explained the conscious nature of this development:

[I]n the Western legal tradition, for many centuries, the legal actors themselves have consciously

ascribed to their own declarations of what they themselves are doing the qualities of a systematic,



objective, verifiable body of knowledge, a meta-law by which the legal system itself may be analyzed

and evaluated.

Some of the methodological tools can also be thought of as "rules about rules" or "meta" rules. As an

example of the above distinction, let's pretend that in Jones v. Jones a state high court has adopted

the tort doctrine of assumption of risk, the doctrine now taking its place among the state's tort rules,principles and policies. What Legal Method teaches is not Jones itself but the ideas circulating around

the creation and application of Jones. It teaches that the case is now a "precedent" with the quality of

"law," as bounded and defined by the methodology employed by the legal profession, which is

identical in each state except Louisiana where the civil law tradition is found. Knowledge about that

methodology is gleaned from state and federal court precedents and practices, the latter being part

of the legal culture of each state as taught in its schools, conveyed in its offices, and utilized in its

courts. Another typical subject of Legal Method is the complex of understandings that the court

which created Jones acted properly , that is, within its legitimate powers in issuing the precedent,

even though lawyers might be hard pressed to finger the precise sources of that authority. Similarly,

Legal Method would have much to say about whether the high court acted competently in issuingand writing up Jones, that is, by applying professionally acceptable methods and techniques such as

its uses of authority, methods of reasoning, analysis of policy factors, definition of issues, and

treatment of adjudicative fact. How Jones should be applied or not applied ("distinguished") in future

cases is yet more material of Legal Method.

Courses which teach this material typically include three components: case law, statutory

interpretation and administrative process. While Hart and Sacks' ambitious project at Harvard went

deeply into the political and legislative processes and even dealt with the interaction of the private

sector and legal machinery, the other Legal Method coursebooks focused on the judicial role in

creating case law, interpreting statutes and reviewing acts of administrative agencies. Critical to all

these materials is an understanding of the proper role of courts in the American legal system and this

necessitates, of course, comparative insights into the institutions of agencies and legislatures. The

basic functions of each lawmaking body and its interaction with the others is core Legal Method

material. The processes by which law is created in the three forums, and elaborated and applied by

courts and agencies are subjects of Legal Method. Along the way students acquire time-honored

techniques for extracting law from cases, determining the weight of authority, forming issues,

distinguishing law and fact, understanding the materiality of fact, reading statutes with

sophistication, and so forth. At the end of this section I have created an inventory of matters covered

in Legal Method courses.

My own course starts with the detailed analysis of four short but meaty appellate opinions fromdifferent fields. Ostensibly students are learning briefing techniques and starting to acquire legal

vocabulary and procedures. But line-by-line analysis of the opinions, combined with background

readings on the American legal system, generates preliminary understandings about: the need for

legal principles to generate specific case results; the distinction between a court's decision and the

rule behind it; the style of legal reasoning; judicial uses of authority; the source and employment of

case facts; formation of case holdings (both broadly and narrowly) by identifying and characterizing

material fact; identifying and weighing dicta; the procedures which brought an issue on above and

the impact of those procedures in defining the appellate task; distinctions between stare decisis and

res judicata; the nature of policy facts and their uses by appellate courts; the distinction between



"policy" or "legislative" facts and adjudicative facts; and the sources judges use to acquire such

information.

This is complicated, confusing and sophisticated material for entering and even advanced students.

The material must be taught repeatedly throughout the semester and always by the study of primary

authority. The cases in Legal Method texts are lightly edited so that an understanding of real law can

be acquired and the full juice extracted from judicial opinions. Making matters more complicated is

the imperative need to teach the jurisprudence girding the meta-rules of judicial process and themethods of creating, elaborating and applying law. As a simple example, it is impossible for students

to understand fully the nature and proper utilization of dicta without having a developed concept of

the function of courts in the American legal system in contrast with the roles of legislatures and

agencies. The challenge for the Legal Method teacher is to teach continuously and systematically on

multiple levels: jurisprudential, conceptual, definitional, methodological, procedural, linguistical and

analytical.

My Legal Method course proceeds to a microscopic examination of five early employer-employee

cases involving dangerous workplaces and the doctrine of assumption of risk. Some colleagues,

unsympathetic to Legal Method, are quick to note that assumption of risk is obsolete doctrine inmany states. Precisely so! This enables students to observe legislative reform by way of comparative

negligence and workers' compensation statutes. And, of course, jurisprudence and methodology can

be taught from obsolete, anachronistic cases just as well as from the current motifs popular in

"substantive" courses.

We wrap up the employer-employee case line with an appellate argument applying those cases to a

hypothetical problem crafted by Mishkin and Morris. Now the students become doers, struggling to

calculate their best precedents, to maneuver around the worst, and to advance sound policy

arguments.

Chapter 2 of On Law in Courts is a magnificent treatment of the fundamentals of case law

development, utilizing a series of privacy cases. Many are the lessons, including constant reiteration

of the methodological themes which started to be developed on "day one." The better students

ultimately come to understand that those ancient, weird New York "private letter" cases continue to

have vitality and currency a century and a half later.

Chapter 2 contains classic, full-bodied opinions like Roberson v. Rochester Folding Box Co. and

Pavesich v. New England Life Ins. Co. We Legal Method teachers, unconstrained by the need to cover

substance, can luxuriously dwell on these masterpieces, exploring the judicial art in full and asking

multiple questions about philosophy, precedent, policy, principles, rules, holding, dicta, overruling,

rhetoric, argumentation, and other fundamentals. Chapter 2 later moves to a series of elevenKentucky privacy cases. Students see an ordinary high court developing and applying the common

law in ordinary ways. This is their likely fare in future years. As usual, the cases are edited lightly so

students can learn from full judicial products. I culminate the section with a practice exam. This year's

test concerned a modern privacy issue: employer monitoring of employee performance. Students are

challenged to apply the string of privacy cases in a new context, once again calling upon their ability

to synthesize case law, to determine the weightiest precedents, to reason by analogy, to choose

between arguing from language in the precedents or arguing from their facts or their holdings or

their reasons.



My final exam is yet another learning opportunity. I send the students home for a few days with a

problem and a string of Pennsylvania precedents. They must apply their methodological skills to

materials and issues they have never seen before. The appellate courts of each state provide ample

material for this purpose. Case law I have used in the past covered topics like prenuptial agreements,

attorney malpractice in settlements, assumption of risk, and pre-attachment hearings. Compare the

rushed issue-spotting, doctrine-spewing, fact-matching exam experiences in other courses.

Mishkin and Morris teach the legislative process by means of "classic cases" and elaborate notes.These On Law in Courts authors emphasize the misleading verbiage in cases about legislative "intent"

and focus the students' attention on searching for the legislature's preferred solution had it thought

of the problem before the court. The chapter surveys the full gamut of resources available to a court,

conceived as the legislature's junior partner. Modern theorists challenge whether that is the correct

question and whether the judicial role is so modest. But unlike modern legal theorists Mishkin and

Morris do not pretend theirs are the only perspectives and the recommended methods of

interpretation the exclusively correct ones. Rather, characteristic of this genre of Legal Method

materials, what is gathered and advanced is typical judicial thinking and method -- the type of

material which practicing lawyers need to know in order to construct winning arguments in court.

Few are the cases won by advancing the theories concocted in the Harvard Law Review's lead article;many are won citing and utilizing the principles of statutory interpretation utilized in leading Supreme

Court cases.

Mishkin and Morris teach about the use and misuse of statutory text, verbal clues from other parts of

the statute or other statutes, the role of statutory purpose and its interplay with text, the use and

misuse of canons of construction, the "plain meaning" doctrine and all its defects, the values and

problems of legislative history, and the relative weights of diverse pieces of such history.

I teach from these materials idiosyncratically. My goal is to prepare students to think on their own.

The immediate goal is to get them ready for the final exam which finds them back at home with a

problem, a statute and a stack of legislative materials, all involving a subject totally fresh to them.

Their job is to identify the statutory issues, formulate them professionally, and utilize the statutory

text and history to resolve them. The long-term goal is to capacitate them for a future in which ready-

made solutions are not handed to them.

To do this, I treat each case in the book as a statutory problem to be solved afresh by the class. The

court opinions and the adjoining authors' notes serve only to provide the information we need to do

our own independent, full-scale analysis. Weening the students from the court's reasoning into their

own is laborious, confusing work but necessary to set them free. This process produced some

interesting results this past semester. A Florida workers' compensation case, treated casually by the

Florida Supreme Court and even by Professor Mishkin and Morris, turns out to be rich in interpretivechallenges. The maximum solution, one which was most faithful to statutory text and purpose, was

considered neither by Florida's high court nor by the textbook editors. In the Caminetti case, famous

for its exposition and use of the "plain meaning rule," the class reframes the case by fresh analysis.

Whether Caminetti's conduct traveling to Reno with a mistress was "debauchery" turns out to be the

sensible question under the statute, not the "immoral purpose" issue actually debated in the courts.

Even a case like United States v. American Trucking Ass'n, so thoroughly analyzed by the majority and

dissenting opinions and by the professors offers up, each semester, multiple new points of analysis

generated by students' thinking. Indeed, American Trucking takes three full classes to teach when the

materials are plumbed for evidence of meaning and when each piece of "evidence" examined for



probative value and weight. Only through such microscopic examination of complex cases can

students acquire the tools necessary to a sophisticated statutory practice.

When we finish the section on statutory interpretation, few hours typically remain to address the

administrative process. To cram this material into four or five class hours, I have tried a nutshell, a

book for foreign lawyers, a college text, a collection of leading cases, and just giving up. This year I

plan to experiment with Hart and Sacks' Problem 1, The Case of the Spoiled Cantalope. But I know

that the lack of time will foil me again.

I obviously can only outline the teachings of these Legal Method texts and courses, but I would like to

descend briefly to a level of greater detail. The theme of this article is that the current generation of

American law students is being deprived of a body of critical knowledge, debilitating its ability to

function with sophistication in a world of courts, legislatures and agencies, of precedents, statutes

and regulations. A simple suggestive listing of what they are not being taught may sharpen my

theme. I particularly urge law professors who think Legal Method is taught "pervasively" to consider

whether the themes listed below are covered (be honest!) in their own courses.

•

techniques for extracting the holding of cases;

• the basic distinctions between "fact" and "law";

• understanding what a "material fact" is and its use in finding precedents "distinguishable" or "on

point";

• the meaning and application of stare decisis;

• when and how courts should overrule precedents;

• the relative weight of legal authority;

• what is dicta, why it isn't an authoritative source of law, and how to use it properly;

• the relative roles of courts and legislatures in modernizing law and eliminating obsolete doctrine;

• when and how courts should advance the law through ground-breaking precedents;

• how doctrine, tradition and accepted practices channelize judicial action, controlling arbitrariness;

• how broad values like even-handedness and certainty are achieved in legal operations and how

they interact with equity and individualized justice;

• why gaps in the law exist and how courts do and should go about filling them;

• the forms of legal reasoning (analogic, syllogistic, deductive, inductive) and their proper uses in the

creation, elaboration and application of legal sources;

• the interplay of text and purpose in statutory interpretation;



• techniques for ascertaining legislative purpose;

• why and when judicial precedents are applied retroactively compared to the prospectivity of

legislation;

• the judicial stretching of legal categories or employment of fictions to accommodate new instances

under established law;

• uses of and antedotes for "parade of horrors" reasoning;

• when is it preferable for law to evolve slowly and incrementally through case law compared to

quickly and comprehensively through legislation;

• the distinction between "adjudicative" and "legislative" (or "policy") facts and their respective

roles;

• the influence of custom in the creation of judicial law;

• the role of community understandings and expectations in the development of law;

• the distinctions between principles and policies and rules and standards;

• the relationship between the reasons judges advance in support of the rules they create and the

scope of those rules;

• the relative content of stare decisis as applied in the precedent-setting court compared to those

below it;

• the technique and uses of prospective overruling;

• the extent to which literal interpretation of statutory texts produces sound results;

• when and how judges should exercise their lawmaking function while respecting legislative

prerogatives;

• identification and utilization of community standards in judicial lawmaking;

•

the function and proper use of judicial dissents;

• areas of choice inherent in the judicial lawmaking process;

• the elements of legal craftsmanship in superior opinion and brief writing;

• what role, if any, a judge's personal views on social policy should play in his interpretation of

statutes; and



• the proper role of theory imported from affiliated disciplines in solving legal problems.

III. THE SURVEY

A. THE "UPS" AND "DOWNS" OF LEGAL METHOD

Some time during the sixties and seventies Legal Method was being taught, usually as a mandatory

course, in a substantial number of American law schools. Like an unwelcome guest, the course has

come and gone with frequency, making it difficult to get a precise count over several decades in the

population of legal curriculums. My best estimate is that a slim majority of curriculums has contained

Legal Method in its traditional form.

According to Hart and Sacks' records studied by Professors Eskridge and Frickey, the Legal Process

materials were utilized in 43 law schools, whether in basic courses or in upperclass seminars. On Law

in Courts states that it was used in mimeographed form in several schools and Legal Method,

according to its 1980 preface, was "at one time or another ... used as the basis of instruction at more

than 60 law schools in first semester-first year courses variously entitled Legal Method, Introduction

to Law, Legal Processes, and the like." Vanderbilt had "Legal Methods" taught from materials

published by a team from its own faculty, and George Washington had "Legal Method, Legal System"

which used a book prepared by two of its faculty members. My own study of an incomplete set of

135 seventies catalogs available in the Temple Law School Library showed the course in existence at

40 schools.

To ascertain the current status of Legal Method courses, I gathered and studied 1995-1996 or 1996-1997 catalogs from 174 American law schools. This survey reveals that only a small nucleus of 22

schools continues to teach Legal Method in the way it was created in the fifties and sixties, what I will

call its "full form." Another batch of schools has substantially modified the course's content, although

it retains some of its original ingredients.

The "full form" course is taught at these schools:

Brooklyn Franklin Pierce Miami Vanderbilt

Cardozo Georgia State Nebraska Villanova

Chicago Hofstra New England Washburn

Columbia Idaho Pittsburgh Whittier

Cornell Kansas Syracuse

Duquesne Louisiana Temple



Without pretending to be scientific, I observe the heavy "East of Mississippi" representation in this

contingent. A ready explanation is the steady commitment to Legal Method at Cornell and Columbia,

two schools which produce large numbers of law faculty, and its earlier prominence at Harvard

(through Professors Hart and Sacks) and Pennsylvania (through Professors Mishkin and Morris), two

other faculty-feeder schools. Another school committed to legal method in its "Elements" course is

Chicago, which frequently sends its graduates to teach law in the East. Yale had never been

interested in Legal Method, nor in "law" for that matter. I suspect that Yale Law graduates on Eastern

faculties have tolerated the methodologists with some indifference.

Notice that the course is barely present in the West. Schools there which graduate large numbers of

lawyers who become law professors include Texas, Stanford, and Berkeley. These schools have never

had Legal Method as a distinct course which might explain its absence (other than Whittier) in the

West.

The following 25 schools teach Legal Method in altered form:

Akron Drake Illinois New Mexico

Arizona Florida Iowa St. Johns

Campbell Fordham Maryland Southwestern

Cleve-Marsh. Georgetown Mercer Tulane

Dayton Hamline Minnesota Utah

D. Columbia Howard Montana Widener

Wisconsin

I will discuss the alterations in the order in which they dilute "full form" Legal Method, starting with

the least dilution.

At Cleveland-Marshall and Wisconsin the traditional Legal Method course is offered as one of the

three or so options available to 1L's in the spring semester. They must pick one from the available

platter. It worries me whether Legal Method can hold its own against courses whose very titles signal

their relevance and importance. Try offering boys the choice between basketball and bridge. Faculty

(most) know the importance of method, but first years can hardly see much appeal in the generalitiesof typical catalog descriptions of Legal Method. Georgetown follows the "Harvard model" of an

upperclass elective. I suspect it attracts few students, particularly in light of the unusual richness of

Georgetown's curriculum. At one time "law-professors-in-the-making" might have been attracted to

the elective, but jurisprudential developments in the past two decades, discussed within, now make

this unlikely.

A few schools wed Legal Method to a particular subject matter, hoping, I surmise, to double their

money. Howard combines it with civil rights, Maryland with a traditional course, and Arizona with

civil procedure. In a variation, many schools try to teach statutory interpretation by means of



Uniform Commercial Code offerings in the second semester or by offering students a choice from a

platter of statutory courses. I have heard some professors argue that "method" cannot be

competently taught free from substance. They are undoubtedly right, and none of the Legal Method

textbooks tries to do so. The judicial role and method is taught in the context of cases and case lines,

and learning about statutes and regulations, legislatures and agencies, occurs in the crucible of

statutory litigation and challenged agency actions. Can method be taught better when linked to a

specific subject? I doubt it. Three obstacles face these marriages. First, a faculty member's

substantive expertise is not necessarily accompanied by skill in methodology or, equally important,skill in teaching methodology. Second, it is impossible to serve both masters well in the three weekly

hours allotted. Teaching methodology and its underlying concepts is slow, laborious and difficult.

Solving a statutory problem, of no special difficulty, often takes a class week or more of detailed

analysis and many unedited judicial precedents demand equal time and attention. I could not

imagine discharging the additional duty of teaching a discrete body of law. My hunch is that the

attraction of "law" proves irresistible in these married courses and method stays at home minding

the children. Third, the casebook editors of non-method courses rarely if ever concern themselves

with legal method. In my field, civil procedure, one can comb the casebooks for methodological

lessons and come up only with crumbs. To teach method through procedure I would have to write

my own materials or supplement a casebook with massive handouts and also sacrifice large areas of

traditional coverage. Few professors in these double duty courses do that, I suspect.

Another approach is to pare away the case law part of Legal Method, leaving legislative and

administrative process as at Washington and Lee, New Mexico and Dayton, or teaching statutes

alone as at Mercer, Minnesota and Illinois prior to its latest curricular reform. These materials include

case law, but only that which exemplifies statutory interpretation or reviews administrative action.

No one can credibly assert that such cases teach anything about judicial performance freed from

statutory constraints in developing the common law. The underlying premise must be that pure case

law analysis and the judicial function are taught in the traditional first year courses. I shall later

debunk this supposition.

Hamline and Iowa cut into "full form" Legal Method in a different way. Hamline mandates a first-

year, one-credit course it calls "Legal Tradition" and describes as providing:

a variety of perspectives on issues a student encounters in the course of studying the primary

materials of law (cases, statutes, and regulations). The perspectives seek to enable the student to

develop an understanding of the legal tradition in its social context.

An important teaching of Legal Method is the interaction between law and society: how culture and

social norms work into the fabric of law and, in reverse, how legal norms shape conduct, expectations

and beliefs in the social settings where the norms operate. I gather that Hamline tries to capture

these important lessons in "Legal Tradition." Don't miss the premise,however, that the student will

encounter "primary" legal materials during the student's first year courses. My examination of the

materials of legal study proves the premise false. Apart from Research and Writing, students rarely

face more than snippets of statutes, random pieces of legislative history, truncated case reports, and

a few words, if any, from a regulation. In Research and Writing the brushes with real law are direct



but scanty.

Iowa teaches one credit of "Legal Reasoning" as a first year mandate, perhaps reflecting the influence

of Steven Burton. Few teachers of first year "core" courses pause to extract and examine the forms of

legal reasoning reflected in the materials they teach from, except in crude and oblique ways. Iowa is

right in focusing attention on the fundamental processes of legal analysis. Iowa is wrong in thinking

other fundamentals are being taught elsewhere.

The final type of modification is the most disturbing. Several schools offer a first year "crash"

methods course for one or no credits before the start of the "regular" courses in the fall semester.

Others appear to offer the pared down version throughout the semester. These courses give

rudimentary information about the structure of the American legal system, legal vocabulary,

procedural steps, goals of legal education, professional responsibility, briefing techniques, and case

and statutory analysis backed by a few illustrative precedents and statutes. For me, these courses fall

in the "better than nothing" category. I'm glad they have the course but wish they had more. We

have learned in the past decade at Temple that "full form" Legal Method is extremely difficult to

teach and that the end of the three-credit semester finds us cramming too much material into too

little time.

Three unique approaches merit attention. Utah offers three credits of Legal Process by invitation as

part of its academic support program. This substitutes for property. Those of us who teach Legal

Method and also a traditional first year course find the former to be more intellectually challenging

by far. The synthesis of ground-breaking case law and the full analysis of complex statutes with

histories are, as just two examples, extraordinarily challenging legal operations. Unless Utah has

created a "baby" legal method, it should be inviting its most talented students, those with potential

for the bench and the professorate, into its Legal Process course.

Tulane requires academically marginal students to take a one-credit Legal Analysis course, and

Missouri at Columbia requires Legal Reasoning of students who complete the fall semester with low

GPA's. These approaches make sense since many undergraduate programs place little emphasis on

developing students' reasoning powers. We find in our Legal Method course that students whose

prior education consisted mostly in collecting and regurgitating information have difficulty with the

intellectual demands, including linguistics and logic, of case and statutory analysis.

Finally, Mercer seems to have chopped Legal Method into three pieces. In the first semester students

start their learning with a one-week one-credit course entitled "Introduction to Law Study," and then

take a small section aimed at "help[ing] students understand the analytical tools they are

acquiring."The third piece, "Statutory Law and Analysis," is a three-credit spring semester mandated

course for first years. All together, the fundamentals of legal thinking receive five credits during thefirst year of study. Although Mercer no longer teaches "Legal Process" as it once did, the essence of

the course seems still there but allocated and timed differently.

My survey's most discouraging finding is that a substantial number of law schools have dropped Legal

Method sometimes during the seventies and eighties. These 29 schools are:

American John Marshall Oregon



Boston College McGeorge Pennsylvania

Connecticut Memphis Rutgers-Camden

Chicago-Kent Missouri(K.C.) St. Louis

Denver William Mitchell South Dakota

Florida Montana Tennessee

George Washington North Carolina Tulane

Gonzaga Northeastern Washington U.

Harvard Northwestern West Virginia

Loyola (N. Orleans) Oklahoma City

Observe that in Cambridge, the breeding ground of Legal Process, Harvard students no longer benefit

from the brilliant materials of Hart and Sacks, not even on an elective basis. The course has also

disappeared at Pennsylvania, where Professors Mishkin and Morris once held sway. The same fate

occurred at George Washington where "Legal Method, Legal System" was devised by Professors Fryer

and Orentlicher. Once the founders depart without heirs, their successors eventually revamp the

business. Note also that in the Nation's Capital, where great case law and statutes are born, Legal

Method is hardly present.

The most cogent observation is naturally the fifty percent drop in mandatory Legal Method from its

peak years. Should the remaining nucleus of 22 schools have marginal commitments to the course,

Legal Method will soon disappear from American legal education. I will demonstrate that nothing in

modern law school curriculums is taking its place, meaning legal method in school and eventually in

court will ultimately be a twentieth century curiosity.

B. THE NEW OFFERINGS

This section will discuss the legal subjects which have "replaced" Legal Method in the mandatory

portion of legal curriculums. Two caveats are needed up front. A slim majority of American law

schools has never considered it necessary to carve out methodology and teach it separately. These

are the schools which think they can and must cram rules into students' minds. They offer large doses

-- four, five or six credits -- of what are perceived as "core" materials: civil procedure, contracts,



criminal, property, torts, constitutional, and research and writing. Legal Method is not replaced, of

course, where it never existed. An "esoteric" course occasionally makes its way into some of these

first-year curriculums. One guesses that the price students pay is increased mandates in the second

year, or the price faculty pays is the loss of credits in "core" courses.

The firmly held premise at such schools must be that the teaching of legal rules is critical and that,

along the way, legal method will be learned as of course. I doubt the validity of the first premise but

make no attempt herein to disprove it. I attack the second premise by later showing that thematerials used in teaching these courses permit neither the teaching nor the learning of common law

methodology. Students at these schools exit their mandatory learnings, and probably all their

learnings, with little methodology in hand or in mind.

The second caveat is that I have made no precise study, school by school, of the "replacement" of

Legal Method by some other course. I use the word "replacement" only in a general sense. Certain

courses I point to in the mandatory curriculum may or may not have substituted Legal Method. In

those cases where the substitution actually occurred, the faculty made an overt judgment in time

that the values of teaching Legal Method were exceeded by other curricular values. In some cases the

replacement never took place because the Legal Method course may never have been in thecurriculum or was partial because the course has continued to exist in diluted form.

Despite this imprecision, even in the last two cases it helps to think of "replacement" because Legal

Method is implicitly considered less valuable. It is an option not exercised, and, should a faculty

consider it, the course would have to fight its way through the current complex of curriculum

priorities. All together, the courses below profile the pressures on law schools in recent decades to

expand their curriculums to include material once deemed unworthy of law teaching or more

properly taught elsewhere, as in law offices.

Strong pressure comes from the bar, from the Justices, somewhat from students themselves, and

from pragmatic professors for schools to offer more practical education. Theory is fine but sooner or

later students will need to apply it in lawyering acts such as writing, drafting, planning, document

study, interviewing, counseling, arguing, filing, and moving. Increasingly the bar has sought to

transfer the task of teaching law application, commonly referred to as "skills," from lawyers' offices

and judges' chambers to the schools. The most visible manifestation of this development is the huge

increase in clinical offerings at the upperclass level. Temple, for example, currently offers students 28

distinct clinicals with slots for 230 students each semester.

Less visible has been the credit expansion in mandatory research, writing and advocacy programs. All

schools have required "skills" courses in the first year, and these sometimes stretch into the third

semester. Today the bulk of "skills" courses are four or five credits or even more. Later I discuss theincapacity of these courses to teach "full form" Legal Method. It seems that the extra credits in these

courses are devoted to more and better teaching of research, writing and advocacy, as well as

expanded opportunities to perform the lawyering acts found in modern practice. The credit

expansion of these courses is not explained by augmented duties in teaching Legal Method. A more

accurate explanation is that method instruction, primarily analytical and theoretical, has given

ground to more skills training, primarily mechanical and practical. Also, some schools find the first

year "skills" course a suitable context for meeting the bar's and public's demand for better ethical

training.



Some schools have opened space in the first year for an "elective," typically a course to be chosen

from a platter of courses promising "perspectives." Michigan introduces bridge "themes" in each of

its week segments between regular sessions. Themes have included the death penalty, medical

malpractice, judging, and alternative dispute resolution. To some extent these "platters" and

"themes" implicitly admit that "core" courses are not teaching certain subjects "pervasively," like

legal history, jurisprudence, dispute resolution, economics, and the social functions of law. Why these

same faculties believe Legal Method is pervasively taught is a good question. Looking at the "platters"

and "themes" from a distance, it strikes me that these offerings are tossing some freedom andexcitement into the first year. Beginning students are invariably assigned professors and courses and,

by the second semester, are sometimes straining at the yoke. Beyond this, I fail to see the

pedagogical value of "platters" and "themes."

Space in the mandatory first year has been found for an assortment of topics at individual schools.

Sometimes this reflects a schools "character." Northeastern, for instance, has a course called "Law,

Culture, and Difference" which examines the interaction of law and culture and the "assumptions,

beliefs and values of decision-makers." I glean from this that Northeastern, like my school, prides

itself on its special concern for problems of discrimination and social welfare in urban areas. Similarly,

Willamette Law School, which was the first Western school to establish a Center for DisputeResolution and which, with its Christian missionary origin is "committed to ... the importance of

human relationships" has mandated ADR as a required first-semester survey course.

Several schools have mandated jurisprudence as a first year course. This would be my second choice

if a faculty couldn't be convinced about "full form" Legal Method. My earlier description of the Legal

Method course reveals its strong jurisprudential elements -- the basic concepts behind the practices

and methods common to the American legal science.

IV. CAUSES OF THE DECLINE

A. CASEBOOKS AND LEGAL METHOD: THE "PERVASIVE" ARGUMENT

1. Delusion

This section will demonstrate how casebooks currently in use in American law schools are inadequate



for the teaching of Legal Method. They pack in doctrine, with hardly a thought about teaching

methodology. The editing process followed by the casebook compilers in my sample, which I suspect

accurately reflects the practices of others, will be shown to denature law, both case and statutory

law. The books collect random assortments of appellate opinions ("cases"), thereby disenabling case

synthesis. The cases are often edited so severely as to misrepresent case "law" and statutory

interpretation both in the particular instance and generally. Those who choose to teach from these

books cannot, except through monumental supplementation, instruct on how courts make and apply

law. I insist that readers of the ensuing pages keep constantly in mind that in regular law courses, thegreat bulk of their educational experience, students of law never see real law. It's like learning to

paint through coloring books, or to operate by practicing on Mattel dolls, or to study law firm

management by watching L.A. Law repeats. Even thoughtful scholars lose sight of the reality that law

students learn from pre-synthesized or dismembered pieces of law. Details follow.

If catalogs reflect faculty thinking to any extent, they reveal astounding degrees of delusion in the

American law professorate. Faculties think, it appears, that in the process of studying constitutional,

contracts, torts, criminal, property, and procedure students are instinctively absorbing Legal Method.

This is what is typically called, in hallways, the "pervasive" instructional method.

Let us hear from some schools which lack a distinct Legal Method course, and thus must rely on the

"pervasive" approach. John Marshall talks with undue optimism about the "core courses provid[ing]

students with a fundamental store of knowledge about substantive legal concepts and rules. The

skills include the analysis of cases, statutes and other sources of law ...." Northwestern waxes on

about the "case method of instruction ... help[ing] students understand why courts decide cases the

way they do," misdescribes casebooks as "a collection of written opinions of appellate judges," and

unrealistically expects students to "vicariously share the experiences of lawyers and judges and come

to understand the judicial process and legal reasoning." Illinois deludes itself in thinking that "[o]ver

the course of the year, students learn to analyze facts, issues, and court rulings with care. They also

learn to ... argue persuasively based on legal authority and analogy." New York University mistakenly

conceives the first year as "a time to study core principles and fundamental concepts and to become

familiar with the idiosyncratic methods of legal analysis. The heart of the first-year curriculum ... [is]

taught in a way designed to make students comfortable with the law's distinctive methodology." The

University of Kentucky College of Law has an opinion on casebooks ("Most casebooks are arranged to

show the historical evolution and conceptual development of legal doctrine ....") which is not

reflected in the several books I examined, and Kentucky further expects students to follow a learning

path which cannot be done because of heavy case editing ("Students are expected to analyze the

decision and opinion in a court case, carefully looking at the facts, procedure, issues, decision and

legal rules."). The reader will learn that casebook editors have dismembered the judicial opinion,

typically synthesizing the facts, eliminating procedural discussion, and cutting out the court's

discussion of precedents, thereby rendering it impossible to state the legal rules which emanate fromthe precedent in methodologically acceptable fashion.

Many catalogs espouse "thinking like lawyers" as the goal of first-year teaching. Law professors are

often excellent at exposing students to hard thinking. For them the phrase "thinking like a lawyer"

evokes qualities of thought and speech like close reading, care with facts, issue clarity, organizing

complex matter, rounded analysis, accuracy in thought and expression, and logical argumentation.

These are excellent qualities but they are not indigenous to lawyers or legal thought. What is

indigenous is "legal science," which I call throughout Legal Method and have previously described.

The following information proves that Legal Method cannot be taught from law school texts.



2. "Book X" on Civil Procedure

Over 25 years I have taught civil procedure from several editions of three different casebooks. I am

currently teaching three credits worth of spring semester civil procedure from the latest edition of

"Book X," which I will not identify because my critique lends itself to misuse. What follows is a

detailed exposé of how Book X not only fails to concern itself with legal methodology, but also

miseducates the subject in many subtle ways. I choose to teach from Book X, nonetheless, for its

positive values in providing numerous well-conceived problems to be solved under the rules and in

offering extensive factual information about America's procedural systems.

The legal reasoning Book X employs is almost exclusively syllogistic-deductive: "Here is the rule, here

are the facts, what is the answer?" When Book X attempts analogical or deductive reasoning it fallson its face, as we shall see. It is chock-full of procedural information: definitions, concepts, historical

evolution, rules, case synopses, system organization and operations, lawyer practices, and the "real

world" impact of decisions. But, in contrast, it is almost mute on the topic of legal method. I teach

about 600 pages of the book and among them find: four paragraphs discussing how the procedural

posture of an appellate issue delimits the appellate court's fact-finding or law-issuing function; eleven

lines about stare decisis; one question about the precedent value of a "wrongly decided" case

(without exploration of what was "wrong" with the precedent); and four requests that students state

the "holding" of a severely edited judicial opinion without explanation of what a holding is and how

to go about constructing one.

My students can afford this neglect of method better than students at other schools who have had

no distinct Legal Method teaching. Still, I often wonder whether this neglect of method and

misinformation about it, which occurs in courses like civil procedure, washes away our attempts to

teach proper methodology in a distinct course.

a. Lost Opportunities

Neglect of methodology commences with the editors' style in constructing a casebook. Book X

follows the typical pattern. For each rule or important issue within a rule the editors look for a judicial

opinion which clearly and succinctly applies the rule or discusses the issue. Should an opinion contain

"distracting" lengthy discussion of facts, or of precedents, or of a rule's history, it is not chosen for

reproduction or these parts are excised. This describes the pattern in about half of the 60 cases I

teach from Book X. The others are Supreme Court cases from important lines of decisions such as



those involving personal jurisdiction, the Erie choice, procedural due process, and punitive damages.

Because editors are under publishers' pressure to curtail book size (I surmise), the high court cases

are very heavily edited. What students study, then, are not cases but case fragments. From these

fragments students are expected to do legal operations like extracting holdings, distinguishing other

precedents, and solving hypothetical problems. It's like reporting on Egyptian history from but one

panel of one ancient frieze. Book X chooses not one case, that I can see, for its instructional value on

method.

The way in which Book X ignores legal method is dramatically illustrated by its teaching of Federal

Rule 11. That rule requires lawyers to litigate responsibly. One facet of the rule focuses on the use of

legal authority: Lawyers' arguments must be "warranted by existing law" or "nonfrivolous argument"

for changes in law. This requirement ushers lawyers into the heart of legal method. To satisfy Rule 11

they must understand the scope of precedents and their amenability to change, expansion or

retraction. Lawyers must be prepared to distinguish in responsible fashion seemingly adverse

precedents, to argue why unfavorable language is nonbinding dicta, and to demonstrate why broad

readings of helpful precedents are appropriate. Considerable Rule 11 case law exists in which courts

have assessed lawyers' legal assertions in pleadings, motions and memoranda. These cases offer

wonderful opportunities to teach simultaneously civil procedure and legal method; indeed, this couldbe the "up front" material in a civil procedure casebook concerned with fundamental methodology.

Sadly, Book X offers but one Rule 11 case involving legal irresponsibility, and the opinion's passage

explaining the lawyers' legal mistake is, as edited, incomprehensible.

Even more blameworthy is the editors' choice to eliminate or truncate citations for the sake of

"smoothness," as they explain in the preface. I like smoothness but I like education more, even if it

demands that students and professors pay some attention to detail. Rules appear throughout Book X

without parentage as if drawn from Holmes' "transcendental body." How can students possibly learn

the relative weights of precedents without continuously observing judges selecting and using

precedents from particular courts, years and places? Certainly Book X does not teach students that

rules borrowed from Gilbert's or Legal Lines are not "law," a lesson which in an earlier day was

fundamental in legal education. What Book X implies is the contrary: that rules are disembodied

propositions of equal authority regardless of age and source.

Another way in which Book X disserves legal method is in its choice of case lines. The line of Supreme

Court cases from Pennoyer to International Shoe was a great opportunity to teach doctrinal

evolution. Book X, instead, loses that opportunity by jumping from Pennoyer to International Shoe

and then featuring the chaotic line of cases following Shoe, great material only for Critical Legal

Studies. A coherent case line is the procedural due process "timing" cases involving hearing rights

prior to attachment or garnishment. Book X declines that methodological opportunity by reporting

Fuentes v. Shevin, only one in the series. In general, Book X, like other non-method casebooks, haslittle concern with students' learning about how courts interpret and apply binding or persuasive

precedents. Occasionally a court's discussion of a precedent escapes the editors' scissors, but never is

the precedent itself reprinted so that students can do their own precedential analysis and contrast

the court's. They could, of course, go to the library on their own to make the comparison, or be

ordered to the library by the professor, but I need no empirical study to state that, given the

pressures of law school, such is a rare occurrence.



b. Miseducation

Book X's lack of concern about method is hardly surprising. Given the false but universal premise that

method is competently taught "elsewhere," Book X's editors naturally focus on teaching civil

procedure. This disdain of method is harmful, given the falsity of the premise, but not fatal. Were

Book X merely neutral about method there would be little methodological gain but no loss either.

The problem is that Book X positively misteaches about method in ways I will now explain.

One piece of faulty education appears throughout Book X: that what courts say is law. The word

"dicta" appears in one of the reported cases but scarcely elsewhere in the text. The editors even

quote language from court opinions without offering the opinions themselves, and ask students to

solve hypothetical cases by applying the language. How professionally responsible is that? Is it not

fundamental that the scope of a precedent cannot be professionally determined without a careful

study of its facts, the court's treatment of the facts, and the reasons advanced in support of the ruleand decision? Quoting rule-like language without offering its context used to be downgraded, while

Book X invites such slipshod methodology.

A more subtle miseducation occurs on the several occasions Book X asks its readers to distinguish one

case from another. Professionally done, the task of distinguishment is demanding. The precedent and

the new case have to be lined up side by side. The precedent is then meticulously combed for its

facts, the court's treatment of those facts as material or not, the court's characterization of those

facts, and the reasons for the rules advanced by the court and implied from its fact treatment. The

competent analyst keeps carefully in mind that the court creates or adapts or adopts a rule of law

and, by applying this rule, decides the case or the particular legal issue before it. This full-scale studyenables the lawyer to understand whether fact differences in the new case (there always are fact

differences) are "material," meaning that the precedent's rule is inappropriate in light of its

underlying rationales.

Book X guarantees that the task is done improperly by offering up a precedent-case blurb and asking

whether that blurb is on point with the new case. This mistakenly suggests to students that

distinguishing can be done without the full facts and reasons of the precedent case. If Book X offered

up an answer, here as elsewhere, it would surely be that textbook space is at a premium and there

are insufficient available pages to report the precedent case in full. The ready retort is that if the job

cannot be done correctly it should not be tried at all.

Various times Book X asks students to formulate "holdings" of partially reported cases. The editors

have judged that a holding can be responsibly constructed from the parts of the case they have

chosen to reprint, and that judgment may be defensible in many instances. But on occasion Book X

asks the impossible, as when it requires students to construct the "holding" of International Shoe and

its progeny, a task which has mystified scholars and the Court itself for decades. The problem with

these questions is that Shoe employs multiple factors to determine "fair play" and defies analysis as a

determinate rule of law. The case offers an excellent opportunity to explore the various forms of

rules created by courts and the relative advantages of each form. But I need not be present in the

scores of classrooms where the "holdings" questions are posed, including Book X's request that



students "vary facts" to change case results, to know that the methodological lesson is rarely taught

or the opportunity even sensed. Nor need I be present in the classrooms when students are asked to

formulate a precedent's holding where on the previous page the court itself had phrased its own

holding. This opens a great opportunity to discuss whether a court has power to formulate the

precise verbiage of the rule, an opportunity I know is rarely seized.

3. Other Courses, Casebooks, Teachings

Perhaps civil procedure is a misleading example. Judicial precedent forms under rules of procedure

only with great difficulty. Instances tend to be singular, particularly those many involving trial court

discretion. Appellate interventions forming hard precedent are rare because few trial-level decisions

on procedural matters maintain life on appeal by surviving either the final judgment rule, orsettlement, or mootness. The typical trial court procedural event finds the judge almost naked,

clothed only with the face of the rule and some general guidance from a treatise. Further, the force

of intra-district precedent is weak. Unlike appellate panels which respect each other's precedents,

trial judges typically do not consider as binding decisions of sister judges, most of which are, in any

event, unpublished.

Deep statutory interpretation is rarely encountered on procedural matters. A few words from a

committee on rules is typically the only material at hand. A foray into substantial legislative material

may occur under a section of the Judicial Code which has a long history and has been surrounded by

enough controversy to generate legislative talk but, more typically, Congress is tight-lipped about thedense and esoteric material forming the Judicial Code.

In sum, the compositor of a civil procedure casebook will have to work harder than others to select

materials and create problems which teach both procedure and judicial method. Perhaps, then, Book

X paints a false portrait about the teaching of methodology. In light of this possibility some students

and I have studied casebooks and teachings in property law, torts, and contracts. Maybe in these

places one finds the teaching of Legal Method so proudly announced in law school brochures.

a. Property

One would think property law is preeminently suitable for methodological teaching. Law here is

particularly land-locked, meaning tightly circumscribed by statutes and precedents of the jurisdiction

where the property is located. Even in the free-wheeling era of Swift v. Tyson, federal courts deferred



to state court precedents on property matters. To understand a property rule competently one must

ask "who's rule?," and then study not merely the identified jurisdiction's statutes and precedents, but

also its methods of creating, interpreting and applying law. One would expect property teachers and

property casebook editors to emulate property lawyers in their special sensitivity to judicial methods

for handling precedents and mega-doctrines like stare decisis and dicta.

One section of the four-credit property course at Temple is taught from the first half, 500 or so pages,

of Property by Professors Dukeminier and Krier. Less than half of these pages contain case fragments,the balance holding doctrinal exposition, historical information about doctrinal evolution, some

economic and other general theory about the property rules, problems to be solved under the rules

previously laid out, and lovely humanizing material like photographs of legal figures and the

properties in controversy, as well as editorial notes about the people embroiled in the reported

cases. The professorial editors engage in the conceit that the book, as one of its primary objectives,

endeavors to teach "something of legal method, legal reasoning, and legal analysis." The question a

Temple student Heather, who took the course, and I, who studied the casebook, addressed is the

substance of this "something." It is clearly not the art of statutory interpretation. A cursory perusal of

Property's 1270 pages of text reveals that the editors have managed to teach almost nothing about

statutes.

Our general conclusion is that Property is disappointingly void of methodology teaching and, similar

to Book X, is replete with anti-method signals. The construction of the casebook is paradigmatic. The

editors start with a topical outline of property law which becomes, ultimately, the table of contents.

For each topic and significant sub-topic the editors search for a judicial precedent which clearly and,

once edited, concisely "lays out" the majority doctrinal position. The editors nudge students toward a

"proper" reading of the case fragments and the implications of that reading by means of following

questions and comments. Also, the urge for substantive coverage proves irresistible. Doctrinal

language in the case fragments, ready to be underlined (or highlighted) by students, is insufficient to

state all the rules the editors feel obliged to mention. So, page upon page of doctrinal exposition

precedes and follows the case fragments.

Property, like other casebooks, gives the illusion of teaching law. But at bottom it is nothing more

than a high-class "study guide" or "nutshell." It may be a Rembrandt instead of a print but it is still a

portrait of life and not life itself. In law creation and exposition, as it really exists, courts struggle with

interpretation and application of their jurisdiction's precedents and statutes because case law

doctrines like stare decisis and techniques for statutory interpretation are taken seriously. In

Property, however, such matters are accidental; if they are found in this book it is simply because

that is how courts operate and not because the editors consciously chose to teach this material.

The topic "acquisition by gift" exemplifies the above points. Within the topic the first issue selectedby Dukeminier and Krier involves the transfer of personal property by an instrument of gift without

physical delivery of the property to the donee. A New York case involving stock certificates, In re

Cohn, is selected for this purpose. The selected case is on the edge of the precedents because the

donor made a written present gift but hedged verbally, saying he would transfer the shares when

they were in his possession.

For property lawyers, now as then, the delivery issue is often messy business. An untidy string of

cases in the relevant jurisdiction will teach when and why physical delivery of the property sought to

be gifted is or is not required. Real learning occurs when a law student struggles through the morass



of case law to extract the rule relevant to the case at hand. Property, in contrast, implies that this

complicated material can be learned from the highly edited Cohn alone. Because the students are not

offered the precedents being discussed within the reprinted case fragment, they cannot learn how

courts use their precedents. Nor can they take away the true content and reach of the rule of Cohn

because such is not extractable from Cohn alone but only from that precedent plus its antecedents.

The most students can do is play around, artificially, with some of the factors which appear in the

reprinted opinion and underline and discuss the verbal formulations of rules offered by the court.

Unfortunately, this superficial playing with the language of precedents is what students, taught nodifferently, are likely to bring into practice.

Cohn would be wonderful for methodological teaching. Three justices in the majority fight with two

dissenters about the meaning of 15 New York precedents in light of the Cohn facts. Precedential facts

and language are argued back and forth, the dissenters not being able to extract from the cases the

flexibility in the delivery rules found by the majority. The winning trio reaches deeply into the

precedents for their supporting rationales, while the losing duo trots out lengthy quotations of law

from the precedents which facially rebut the idea of flexibility.

Sadly, all of this is lost in the casebook process. Instead of learning how case law grows incrementally,

with judicial battles at the borders, the students get one judicial precedent taken from somewhere

within the series, get only part of it (with precedential discussion substantially omitted), and carry

away "rules" in the worst form possible: law-like statements found within the opinion. I sincerely

doubt that classroom teaching of Cohn adds any of the common law's sharpness to the true rule of

Cohn. Such would require the classroom instructor to study and bring into the learning process those

15 New York precedents, which I hazard to guess has never been done even in this great land.

Acquisition by gift has other subthemes. The next one covered in Property is deathbed transfers

(causa mortis). Editors concerned with methodology would have an opportunity here to offer both

rules and legal method. Some of the precedents cited in Cohn involved causa mortis gifts, and the

judges debated their relevance to the Cohn facts. The method-conscious editor would reverse the

order, teaching causa mortis first from a New York case and then Cohn where the precedent is cited

and its use debated.

That does not happen, of course. Dukeminier and Krier pick Newman v. Bost, an 1898 North Carolina

case. Why Newman is selected from the zillions of causa mortis precedents is an editorial mystery.

Perhaps the reason is because the editors had some "humanizing" biographical information about the

donor and a newspaper sketch of the house in dispute.

Once again a marvelous methods-teaching opportunity is lost. The Newman court deals with a dying

donor who handed housekeys to a loyal housekeeper, pointed around the house, and said that

everything in the house was hers. The court preferred a strict delivery rule so that symbolic delivery,

as by keys, would not suffice; however, the court felt "prevented ... by our loyalty to our own

adjudications...." When a court follows precedents in the face of its current desires the true meaning

of stare decisis is evidenced. But Property chooses not to reproduce the binding North Carolina case

which costs students the full opportunity to learn about stare decisis' teeth and to practice their skills

at distinguishing troublesome precedents.





But most of the cases would not be ones that I would choose to teach [Legal Method] because the

analyses were incomplete in [that] sense. ...

The Teacher

Cases were not discussed in the systematic way that cases were discussed in [Legal Method].

Professor "M" never went down a "brief format" where students would identify the issues and the

holding. We never discussed dicta. ... Overall, Professor "M" touched on the forms of reasoning

taught in [Legal Method], but only on the surface. ... Most of the learning was done in piece-meal

fashion, leaving out the important parts of analyses.

Property Professor ("X") typically began property classes with a discussion of general property

themes and rights which the class could use to understand case issues and court holdings. Although

students were not called on to brief cases using the format learned in [Legal Method], analysis ofdecisions still consisted of identifying the relevant facts and the courts' holdings. Professor X made

connections between the facts and the courts' decisions by emphasizing the property themes and

rights introduced early on. Further analysis focused on decisional law's effects on society and its

efficiency. Many class sessions consisted of hypothesizing and answering questions about varied fact

patterns.

Although the casebook never afforded the class a chance to study a succession of cases evolving into

law, when it included early cases from England Professor X offered general information about that

particular doctrine and how American jurisdiction's received it. Professor X also occasionally

mentioned the differences among states' property law.

Professor X discussed statutory law connected to property rights over one's own body, the Fair

Housing Act, and the Americans With Disabilities Act, the last of which he photocopied and

distributed in class. He and the class spent considerable time interpreting the statute, first by looking

at certain words and their plain meaning and then analyzing their meanings in context. Afterwards,

these statutes were used in resolving hypotheticals.

Overall, Professor X touched on the methods of law development and the forms of reasoning

highlighted in [Legal Method], though not systematically or deeply. Professor X did conduct class

discussions aimed at reaching reasoned conclusions about property doctrine and its application.



b. Torts

Perhaps torts is where Legal Method comes to life; after all, the evolution of torts doctrine is

primarily a case law affair. The Cardozo masterpiece of case law synthesis, MacPherson v. Buick

Motor Co., is method par excellence. Melissa, another research assistant, made an "A" in a four-credit

torts class in the fall semester which utilized Cases and Materials on Torts (hereafter Torts), formerlyedited by Charles O. Gregory and Harry Kalven, Jr., and now entrusted to Professor Richard Epstein.

Five revisions have resulted in a casebook with 1387 pages of text covering 17 principal torts topics

and featuring 190 case fragments.

How much Legal Method did Melissa absorb in her torts readings? Epstein certainly taught her

nothing about statutory interpretation; on statutes Torts reproduces small pieces of modernizing

statutes or describes them and has nothing further to say on the topic. Perhaps Melissa learned case

analysis from text and teacher. Let us hear from her directly:

Melissa's Report

I always find it difficult to divorce method from the substance of what I learn. It seems impossible

that legal method is not learned through "osmosis." The method of law making and decision making

in judicial process is inherently part of learning the law. These are also the words of a person that has

had the benefit of a course in [Legal Method]. However, after finishing his report on legal method

learning in Torts, it is clear to me what was missing.

I absorbed quite a bit of doctrine in Torts. I also practiced applying facts to law by means of solving aseries of tort problems. What I did not learn, however, is where exactly this law came from. The rules

we learned in Torts were cut-and-dried. Detailed questioning of the validity of the rule in terms of its

construction from past precedents was only indirectly addressed by the text or classroom discussion.

Patient watching of the gradual development of a legal principle was not part of the course's

emphasis. The word of the court on the "rule" of law was final. Even in cases that overruled prior

precedent, only the implications and meaning of the new rule were discussed. A court's power to

overrule was not an explicit topic.

When we briefed cases we did not have to "construct" the holding because it was always laid right

out ("This court holds ..."). Not to lessen the importance of what we did learn in the class, Torts did

not prepare me to deal with real and unedited cases. It did not prepare me for practice in the sense

that all of the issues and rules presented were straightforward. Torts class taught me how to deal

with the law once I knew unquestionably what it was, but it did not offer me how the methodology I

need to figure out what the law is on my own.

The Teacher



Torts Professor X did not choose to stress methodology, although the procedure and posture of cases

were often explained or discussed. Students were called on to brief cases, but the reasoning of the

court was never infrequently the thrust of the discussion. The holding as stated in a particular case

was considered the "law" and prior precedent was not usually analyzed. The legal process of

overruling or distinguishing was not explored. What Professor X chose to stress instead was

the social impact of such a law. We viewed law in the context of changes in social attitudes

regarding responsibility, a perspective I shared and appreciated.

X approached the materials from an historical point of view. X emphasized the fluid nature of law.

We were taught to view the law as a reflection of the changing attitudes of society. Variance in tort

law doctrine was attributed to different concepts of justice at different times and in different

geographical areas. We learned that the "law" was much more than a simple rule and a decision in a

case was dependent upon place, time and circumstance.

Professor X also pointed out the differing philosophies of great legal thinkers. We were exposed to

and discussed the philosophies of Holmes, L.Hand and Cardozo. We often hypothesized about how

they would resolve a particular legal issue.

Case Edits

An overwhelming percentage of the cases we read in Torts were two pages or less. The cases were

stripped to their bare bones: facts, issues and holding. I compared a random selection of edited cases

with their full version in the official reports. Any issue not immediately relevant was always excluded.

Often the arguments presented to the courts were not even mentioned. Statutory analysis was

almost always omitted, even in cases where the statute was the source of the legal duty.

The purpose of the case edits appears to be the same as the editor's notes: to expose students to as

much doctrine as possible, quickly and cleanly. Torts was a very straightforward class: facts, issue,holding and policy concerns added in by the professor. Almost all of the legal decision-making

qualities of the cases have been edited out. Epstein apparently does not want students distracted

with the details of method.

The philosophy seemed to be to give the students an issue, a few facts, a rule and watch the courts

resolve. That was exactly what we were asked to do on the exam. We were given the facts, we

spotted the issues, we applied the rules, and we resolved the problem.

Torts is not a "casebook" but rather a mislabeled torts textbook, bringing to mind the old adage

about books and their covers. By actual count 852 pages, 61% of the book, is comprised of editorial

matter. This non-case material concerns almost exclusively doctrinal explanation (content and

underlying policies), doctrinal expansion (other cases presenting variations) and doctrinal exploration

(editors' questions about the rules). In the balance of 535 pages, Epstein crams in 190 cases collected

from across the United States during the book's 36 years of existence. That permits an average of 2.8

pages per case, including the dozens of "classics" which need no citation. This number, 2.8, should

bring to life my phrase "case fragment." Most appellate judges creativeng important law hardly warm

their pens in 2.8 pages. A device popular among casebook editors and utilized in Torts (58 of the 190

main cases) is to present not the court's statement of facts but the editor's, signaled by brackets. This

immediately disempowers the reader from doing professional case analysis because without knowing

the court's recitation of case facts and its characterization of these no responsible analyst would



attempt to construct the case's holding. Upon inspection, what Torts amounts to is a tort law

textbook comprised of doctrine and doctrinal explanation: an elaborate quilt of fragments of cases,

editors' discussion of cases, clips from law reviews, pieces of Restatement, and occasional historical

or theoretical material. All of this is stitched together by a massive topical outline.

The paucity of legal method in Torts does not deter editorial boasting. In his 1995 preface Epstein

claims that the book offers a "great opportunity to watch the common law at work." Nonsense! The

reader learns nothing about how the case law system "works" but, rather, finds only a compilation ofits products. That compilation is also incoherent because Torts presents the tort "law" of no

jurisdiction but instead tiny pieces of information about the tort doctrine of dozens of jurisdictions.

And, indeed, the book teaches by way of those pieces no more than a sketchy outline of tort law. The

true tort law of any common law jurisdiction is found in the batches of cases which, like clusters of

fruit on a branch, accumulate in repetitive situations under general tort principles of fault, duty,

causation, and the like. Melissa, when she handles her first tort litigation, will discover that Torts was

the barest of introductions to the topic. In assessing the claim of her client, injured in a supermarket

fall, Melissa will discover her state's "slip and fall" jurisprudence to which she must apply her Legal

Method training in order to perform competently. Little in Torts has prepared her for that moment.

c. Contracts

Farnsworth and Young's Contracts: Cases and Materials (hereafter Contracts) is almost purely

doctrine. Paul, another research assistant, studied this book in Contracts I and reviewed it, along with

his class notes, to determine whether the combination of text and classroom taught him Legal

Method. Paul's complete report is reproduced in Appendix B.

I find nothing either in Paul's report or their text which justifies the editors' promise that the course is

"exceptionally well suited to development of the student's 'legal mind': respect for sources,

skepticism toward easy generalizations, and disciplined creativity in the use of legal materials."

Like Epstein's work in torts, this is no more than a textbook on "national" contract doctrine parading

as a casebook. Pieces of cases are introduced by exposition of general principles and underlying

theory and are knotted together by doctrinal explanations and expansions. The editors' notes

following the cases offer: (1) questions on the main case called "problems," which usually turn out to

be doctrinal variations extracted from other case precedents; and (2) simple, straightforward

synopses of other holdings on the particular topic. The editors also tie material together with more

pre-synthesized doctrine taken from the U.C.C. or the Restatement.

Students have no chance to learn case synthesis because, as has become typical in casebooks, case

lines from the same jurisdiction are not presented. Instead, the editors make their doctrinal points

with a case from here and a case from there, a bit of the Restatement here, a bit of the U.C.C. there.

Like Epstein's Torts, this contracts "casebook" is basically a contracts textbook sexed up with an

occasional ethical or drafting problem. The "law" is given to the students already synthesized and

organized by the minds of others; they get the illusion of legal operations when they are asked to

apply pre-formulated doctrine to hypothetical facts.



My assistant Paul compared a random sample of ten cases featured in Contracts with their full forms

in order to investigate Farnsworth and Young's editing process. Whenever case facts are summarized

or heavily edited, students lose the ability to construct an accurate holding; Paul found this in three

of the ten cases. Not bad, it seems, compared to Epstein's Torts. But in five of the cases with

unedited facts either the whole case or the court's fact statement was quite short in the original. In

two of the ten cases Farnsworth and Young left unedited lengthy statements of facts. Kudos! In four

of the ten cases Paul found that proceedings below were eliminated or significantly edited -- a

significant Legal Method loss. In six cases courts' discussion of their own precedents was eliminated,costing students the chance to see the courts' handling of primary authority. In seven of ten cases the

editors eliminated courts' analysis of secondary authority, depriving students of another method-

learning opportunity.

In addition to tabulating the editing categories, Paul analyzed whether the material eliminated from

the cases would have offered significant Legal Method learning opportunities. Let's hear from him.

Paul's Report

In Fiege v. Bohem (Contracts at 55), the editors deleted a section interpreting a statute which had a

direct bearing on the case. The editors also eliminated substantial portions of the court's discussion

of similar cases decided by other state courts tracing the early evolution of the doctrine central to the

case.

In Lefkowitz (Contracts at 165) the editors eliminated discussion of the facts of cases that are cited by

the court. In particular, the court cites Craft v. Elder & Johnston, upon which the defendant principally

relied. This was a case printed in the casebook itself (Contracts at 163). Had the editors included

Lefkowitz's analysis of Craft , the student could have seen how courts either accept and apply theprecedent to the case before them or distinguish it.

In Evertite Roofing (Contracts at 187) the editors delete the court's application of the doctrine to the

facts of the case, as well as the plaintiff's arguments. Also, this case's decision is solely based on an

interpretation of the statute and subsumption of case facts under it, but this facet has been

expunged from the book.

In McKinnon v. Benedict (Contracts at 337) the editors have removed the court's extensive discussion

of prior precedents, the weight such precedents carry as well as their holdings, and even the court's

statutory interpretation. This case has particularly suffered from the scalpel. It exemplifies how the

casebook contains only the editorial message; additional material considered extraneous to that

message has been removed wholesale.

In Watkins v. Carrig (Contracts at 357) discussion of New Hampshire precedent and the weight of

contrary authority has been omitted. In addition, some policy considerations have been excluded

from the casebook text.

Like Heather and Melissa, Paul concluded from his review of his own contracts learning that he was

not taught Legal Method. I invite the reader to see the balance of his report in Appendix B. His



contracts exam focused primarily on issue spotting, regurgitation of free-floating doctrine (the

hypotheticals do not mention where the facts occur), and application of fact to law.

B. LET RESEARCH AND WRITING DO IT

Law school faculties which have opted for a "pervasive" approach to the teaching of Legal Method

likely consider the fundamentals of case and statutory analysis to be adequately covered in the

mandated first year "Legal Research and Writing" course ("LRW"). The thought is that some

introductory material and some practice problems in LRW will get the students started and the depth

will come along naturally as method is inculcated in the regular courses. The previous section laid

bare the flawed premise of a "pervasive" teaching of method. In this section I will ask whether

enough methodology is being taught in LWR because in most law schools in America this is what's

left.

LRW typically provides, by means of readings, class discussion and exercises, some basic instruction

to entering law students on case briefing and analysis. Less frequently they cover methods ofstatutory interpretation. Following this introductory theoretical instruction, students have the

opportunity to hone their skills by writing legal memoranda and, typically in the second semester,

briefing and arguing an appeal.

The ability of LRW courses to teach students competent case and statutory analysis, along with the

huge complex of theories, traditions, conventions and norms comprising the American legal science,

is severely constrained. Credit hours usually do not exceed four in total and within that time frame

the teachers are obligated, indeed principally obligated, to teach students how to write and research

law, both time-consuming and challenging tasks on their own. Also, the published teaching materials,

with one lone exception, are barren of sophisticated, detailed materials on Legal Method. They payscant attention even to the basic analytic skills; one typically finds a small percentage of textbook

pages covering Legal Method, and some texts completely omit techniques of statutory interpretation.

They have nothing to say whatsoever about the traditions and conventional understandings

accompanying those skills, or the theories underlying legal methodology and the history of its

development in the United States.

The instruction one does find is extraordinarily simplistic, including very unsophisticated "exercises."

Some texts literally offer no or little assistance to the students in basics like determining case

holdings, distinguishing precedents, understanding the meaning and use of "material fact,"

identifying dicta, and calculating the appropriateness of overruling. If judicial opinions appear at all in

these texts, they are either fabricated or highly edited and consequently offer the students a

distorted picture of case law. Lacking classroom time and textbook space, writers of these texts never

include case lines demanding synthesis except at the most elementary level. In the texts' original

writings one finds a handful of propositions concerning judicial precedents as law, several of these

propositions being dubious, debatable or flatly wrong. Some examples (without cites to protect the

innocent) are:

· For rules primarily articulated by case law ... a researcher may find many case opinions with each



[court] restating what the [court] thinks the rule is. These opinions often use different language.

Sometimes the variations in language will be slight and sometimes dramatic. The task of formulating

and outlining a rule from these differing authorities can be challenging.

· In the final analysis, a legal "rule" is simply an idea in the mind of the rule-maker.... When you

formulate a rule from an opinion, you are trying to get inside the mind of the opinion's author.

· " ... the rule of law the opinion inherits from prior authorities ..."

· "[T]he lower court's task is to determine and apply the law as the higher court would ...."

· "[M]any of the opinions you will read set out more complex rules ...."

· "Narrowly defined, a 'holding' is the court's resolution of an issue before it, limited to the particular

facts of the dispute."

· The similarity of the facts between the precedent and your problem is also important. The more

similar the specific facts between the cases, the greater weight the precedent will have for your own

problem.

· "In an opinion, dicta which means words, includes anything a court says that does not have a

significant effect on the outcome of a case."

· "The holding is the decision a court reaches in a case."

· [T]here is a difference between the rule (which is stated so as to govern future controversies) and

the holding (which decides questions like whether the trial court erred in the current case) ....

· Part of a lawyer's creativity is discovering deeper meaning in an opinion .... The art is to phrase the

rule broadly enough that it has a reasonably general applicability, but not so broadly that it exceeds

the principle that the court thought it was following.

· "The reasoning in Case A ... now becomes the rule in Case B."



C. PHILOSOPHIC ATTACK: LEGAL METHOD AND THE AVANT-GARDE

1. The Attack

An assortment of quasi-philosophers at the elite law schools has declared American legal

methodology passé. This group first gave these fundamentals of legal analysis a name, "legal

process"; second, determined it to be a school of thought; third, misdescribed its content, typically in

ways which made legal process easy prey for their darts and arrows -- the thoughts comprising theirown "schools of thought"; and, fourth, declared

legal process dead (and their own jurisprudence triumphant). Naturally, few law schools would want

to mandate the study of a rotting carcass. Utilizing their easy access to the prestigious law reviews

and proselytizing by means of their protegés --successor waves of law faculty trained at the elite

schools --the intelligensia spread the message of the death of legal process into second, third, and

fourth tier law schools.

From my anonymous seat in one of those other tiers, I speak of the few dozen legal "philosophers"

who have erected the bodies of thought known as "law and economics," "critical legal studies," and"outsider scholarship." I quote the word philosophers because this small cadre of professors typically

does not hold degrees, and concomitant experience, outside of law. Their philosophy, economics,

social theory, medicine, political science, linguistics, psychology --what appears to the right of "law

and ..." -- comes to them second-hand and, I suspect, only partially understood. This group plows into

the rich fields of learning outside law, reaps what it can, brings the harvest back to school, and

launches a new, exclusive and "complete" jurisprudence. Adopting the sad but seemingly

unavoidable trait of philosophers, they do not simply stock new shelves with their harvest but seem

compelled to sweep the shelves clean and restock exclusively with their new goods. This genre of

theorizing typically devotes considerable space explaining the defects of others' thinking and

comparatively little explaining what, by virtue of capture, is "their own." What American law gets is

fragments of philosophy founded on half-thoughts and questionable premises developed in fields

outside of law but sought to be transplanted whole and purporting to provide a complete structure

of thought.

This intelligensia is scarcely connected with the American legal system, by which I mean the daily

inputs and outputs of American courts, legislatures and agencies, yet by virtue of office and aura has

a strong influence on teaching and scholarship in American law schools. The closest these writers

ever get to "cases," I would venture, are those in the casebooks used in whatever "bread-and-butter"

courses the deans can get them to teach. Those cases, we learned, bear little resemblance to the full



case as written by the court and even less to the full case cycle resulting in the appellate opinion.

Time constraints would prevent them from actually studying their country's legal system. Should they

have actually read the foreign language books cited in their footnotes (typically in the inferior

translated version), plus taking the training and attending the conferences necessary to understand

the books' contents, little time would remain in their work days for pedantic study of American law.

Amazingly, these writers purport to explain the American legal system, which they barely know, by

means of imported bodies of knowledge which they barely know!

The spectre is even more frightening when one notes how isolated this cadre of legal scholars is from

the American law which they purport to interpret and reform. They inhabit a small world of "top

ten," "non-conventional" law professors, that is, the small circle of admirers and enemies for whom

they write. They cite only the writings of others in the circle, which means to me that they do not

communicate with conventional scholars or read conventional scholarship, meaning analysis of a

case, discussion of a doctrine, parsing of a statute, and other forms of "non-creative" legal

scholarship. Since others in the circle are equally isolated from American law, their awareness of

what American courts are doing is constantly diluted and distorted. For example, I have never sensed

a consciousness in any of these writings that the ideas expressed in them have absolutely no

relevance to or impact upon any decision of any court at any level in any corner of this land (apartfrom the occasional work product of judges-in-the-circle, like Posner). Perhaps these scholars simply

assume that their immediate influence on American law as Supreme Court clerks (this is their "legal

experience") persists in their academic writings and their lectures at learned meetings.

Although these writers are neither historians nor philosophers, they write as such. The introduction

to The Legal Process by law professors Eskridge of Georgetown and Frickey of Minnesota is a classic

example of historical and philosophical distortion produced by inadequate command of these

disciplines. One might mistakenly assume from these pages that legal theory develops in unitary

chunks, for example by generations; one might also assume that each new generation of legal

scholars generates its own quite distinct views of law, typically rejecting its legal inheritance. These

discrete bodies of thought are not accretional but substitutionary. "[L]egal realism" is conquered by

"legal process" which is driven out by "critical legal studies," for example. When one looks at the

footnotes to see the sources of the authors' grandiose conclusions, one recognizes how this faulty

scholarship occurs. Their readings are almost exclusively the writings of their colleagues published in

the elite law reviews and the elite university presses. Anyone who thinks that such pages reflect the

reality of the American legal system is disconnected from actual legal operations. Nonetheless, these

writings are the legal world for scholars like these; the closest they get to case law is by reading U.S.

Supreme Court constitutional decisions, cases hardly representative of the daily retail common law

and statutory operations of courts.

The modus operandi is to gather the batches of writings of allies and enemies, give them historicalbeginning and end points, name them (or borrow others' names), capsulize their content, and claim

them to be "schools of thought" or "a philosophy." The thought that one or a few propositions are

merely ideas is anathema to this pseudo-scholarship. In the Eskridge-Frickey pages we witness the

rise and fall of "law-as-policy," "law-is-policy-but-also-institutional-architecture," the "organic theory

of rationalism," "purposivism," "legisprudence," "law as process," "Legal Process," "second-

generation legal process," "public choice theory," "critical scholarship," "The New Legal Process," and

"civic republicanism." It seems that each rising of the sun heralded a new legal philosophy. In the

pages of Gary Minda we see reports of "legal modernism" which naturally gives rise to legal

"postmodernists." According to Minda everyone is searching for "essential truths," "core essences,"





in Courts: An Introduction to Judicial Development of Case and Statute Law, which was published by

Foundation Press in 1965 and maintains its vibrancy three decades later. At Harvard, Henry Hart and

Albert Sacks were developing their own materials, the famous Legal Process mimeographed

materials. These were published by Foundation Press in 1994; prior thereto the materials were sold

at cost from Dean Sacks' office.

The writers of these texts designed no legal philosophy and attacked no schools of thought. Their

goal was merely to cumulate, organize and teach the legal wisdom brought from England andelaborated on American soil, what Hart and Sacks called "root knowledge." Woven into these

teaching materials were the best thoughts of Langdell formalists, Gray positivists, Holmes

pragmatists, Frank realists, and the cumulative thinking of the great American judges and legal

scholars: Story, Kent, Langdell, Holmes, Cardozo, Pound, Llewellyn, Dickinson, Wambaugh, Corbin,

Wigmore, Radin, Goodhart, Frank, Fuller, Stone, Landis, Brandeis, Frankfurter. To the extent that the

organization and functioning of legal institutions, their interrelationships, and the concepts, process,

methods, and language employed by them were grounded in legal theory, these works explained the

underlying philosophical premises. But none purported to be a work of legal philosophy; instead,

each was primarily a pragmatic effort to teach beginning law students how the legal institutions they

would encounter, during and after their studies, functioned: their respective tasks, their organization,their methods of operation, the techniques they used to create, elaborate and apply law, their

strengths, their weaknesses. Despite the depth and breadth and overall brilliance of their materials,

Professors Hart and Sacks pretended no more than to offer a composite picture of the American legal

system and methodology which students would have difficulty envisioning piecemeal:

The materials try to provide for American students a general view of the American legal system as a

framework to help in organizing knowledge about the various elements of the system. ... Questions

such as these present themselves in every law course. But teachers distracted by the often too

acutely felt need of covering the ground indicated by the subject matter heading of the particular

course cannot and do not pause to examine them in their full dimensions. The questions, however,

are important to lawyers, and ought to be examined. They can most economically be dealt with in a

course which is devoted to law and not simply one of its subordinate branches.

Further, the total effort of Legal Process, like its sister texts, was singularly aimed at the pragmatic

goal of equipping students to solve legal problems. The goal was not to inculcate a philosophy or

offer perspectives but simply to prepare students both to study and to practice law by offering a

comprehensive vision of the American legal system and its fundamental methodology.

Professors Mishkin and Morris used their On Law in Courts materials to sketch out a "model" of judicial behavior. With judicial law-making universally accepted by the mid-twentieth century, inquiry

turned to the controls on judicial arbitrariness. As Hart and Sacks were doing at Harvard, Mishkin and

Morris at Pennsylvania turned not to foreign scholarship but to the received traditions of the

American judiciary and to the accepted methods of creating, elaborating and applying judicial law

and of interpreting and applying statutes. Their "model" was neither invented nor imported but the

legal profession's common inheritance from America's legal past. The Pennsylvania professors

believed:



that judicial action functions within limits of both power and propriety -- limits that are rarely narrow

or rigid, but important limits nonetheless. These bounds are found in the judicial institution and its

processes, in the conception of the judge's task and how it is properly done.

Out of the prior century's wealth of American judicial experience and tradition, Mishkin and Morris

fleshed out the bounds and limits, the proprieties, the processes, the concepts, and the law's proper

doing.

The progenitor of this line of teaching materials, the 1946 work Materials on Legal Method,

pretended no more than "to train the student in the legal skills necessary to the use of the basic

forms of Anglo-American law, caselaw and legislation." Through a combination of "information and

illustration, of precept and practice" the authors hoped to "[equip] the beginning law student to

make more rapid progress than he otherwise would in the professional study of law." By means of

"Legal Method" the path would be smoother for entering students compared to the "groping and

confusion ... when thrown simultaneously into three to five courses, presenting, principally through

collections of cases, as many different branches of substantive and procedural law."

The contents of these teaching materials varied in scope and emphasis but contained a commoncore. They explained the need for law to organize society and they accepted legal operations as

purposive: aiming to improve society and the individuals comprising it through the creation and

application of rules of conduct judged beneficial under commonly held values and beliefs. Years later

Owen Fiss, who I speculate took Legal Process when a student at Harvard, used different words to

express the same idea about the American legal institution: "an institutional arrangement in which

public officials seek to elaborate and protect the values that we hold in common ... [a] collaborative

moral enterprise within a changing society." These texts focused primarily on the role of courts in this

process, although the extensive materials of Hart and Sacks also covered private actors, legislative

process, and agency action. Through them readers would obtain "root knowledge": the organization

and workings of America's legal institutions, their core concepts, vocabulary, legal categories,

procedures, methods and the "rules about rules" --those doctrines and practices, like stare decisis,

which guided lawyers and judges in the process of creating, elaborating and applying law. Of

particular importance to these texts was the interrelationship between legal agencies, particularly as

between courts and legislatures. As explained by Hart and Sacks,

A legal system is a system -- a coordinated, functioning whole made up of a set of interrelated,

interacting parts. The solution of specific legal problems constantly requires an understanding of the

functions and interrelationships of more than one institutional process and frequently of several.

Problems arising in a court call for a perceptive awareness not only of what courts are for but of whata legislature is for and sometimes also of what an administrative agency is for and of what matters

can best be left to private decision.

For example, it is no simple task to achieve legislative supremacy, an undoubted common value, in

the face of the reality of judicial law-making and the imperative of front-line judicial interpretation

and application of legislative commands. How mega-doctrines like dicta and "plain meaning" achieve

the goal of legislative supremacy was but one of countless lessons taught by these texts. Nor is it a



simple task to achieve reasonable certainty of result in legal operations in view of the treachery of

language, the multiplicity of values to be served, and the judgmental nature of legal operations. How

purposive interpretation of statute, regulation and precedent, guided by appropriate and

appropriately understood resources -- history, logic, and so forth -- achieves reasonably predictable

results was an important facet of Legal Method.

Unsurprisingly, the texts' authors used cases and problems based on actual legal operations to teach

about institutions and their processes. Unlike civil law which is imposed from above in the form ofcodes and doctrinal writings, the American legal system (including its English roots) has emerged

slowly and incrementally from the bottom up and principally from the judicial settlement of actual

disputes. It is natural, then, for American doctrine, including mega-doctrine, to be taught in the

context of actual cases and legal settings.

These authors also taught using the "problem method." The learning is in the doing and the redoing.

This problem-based pedagogy began to emerge in the 1940's and it was a natural approach for the

legal method materials to craft problems around actual disputes and challenge the students to utilize

proper methodology to resolve them. Hart and Sacks wove their ideas and extensive coverage

around 55 problems. Mishkin and Morris utilize several "wrap up" problems and the second editionof Legal Method consistently tests the students' learning by means of problem-based quizzes.

In concluding this section I must note that these materials did convey general messages and some

analysts could, mistakenly, wrench a "philosophy" out of them. One important message of all these

materials was that judicial discretion in executing the court function was unavoidable. This idea was

linked to the primary idea that judicial discretion was not unbounded but operated within the

constraints, exemplified by the doctrine of precedent, developed over the centuries first in the

English legal science then in the American version. In an important address, The Death of the Law? ,

Professor Owen Fiss well describes how judges are "caught in a network of so-called 'disciplining

rules' which, like a grammar, define and constitute the practice of judging and are rendered

authoritative by the interpretive community of which the justices are a part," and that judges are

"public officials situated within a profession, bounded at every turn by the norms and conventions

that define and constitute that profession." Where the scholarship of groups like the Critical Legal

Scholars failed was in not understanding or appreciating these limits and in building their programs

on the false premise that judicial acts are pure, unconstrained politics. The Legal Method writings did

not import or invent these "disciplining rules," "norms" and "conventions." They were developed

within the American legal system over time and merely capsulated in these texts to be transmitted to

a generation of American law students.

V. CONCLUSIONS



As in the Hart and Sacks materials, the nagging problem of asserting objective, substantive values

within a system premised on a pluralistic subjectivity of values inevitably reemerges. ... Critical Legal

scholars ... demolish[ed] the presumption of pretense of the legal process school by exposing the

incoherence, contingency, and political character of their basic postulates: shared process values,

progress, the objective reality of the public/private distinction, formal equality, legal neutrality, and

the fetism of expertise, especially the privileged autonomy of legal reasoning.

[C]laims of neutrality are designed to mask the exercise of power, to communicate a pseudo-scientific methodology that disables people from perceiving the possibility of rebellion or dissent.

Are we to abandon our belief in the values of process, our hope for progress, our legal categories, our

striving for equality, our goal of neutrality? Are we all merely politicians making false claims to reason

and craft as tools to subjugate the masses?

In responding to these questions, let us examine what American legal methodology is and what it is

not. At the root level it is a "belief structure" and it is "historically contingent." It is neither magical

nor inevitable nor immutable. The cumulative British and then American wisdom created it over the

decades and today's wisdom, including current "schools of thought," will continue to improve thelegal system in the same way that new thinking did in the past.

Girding the system are quantities of foundational value beliefs and premises. The primacy of the

legislature, the democratic branch, is a structural political value which has generated methodology,

such as techniques of statutory interpretation, geared to respect and promote that value. The judicial

branch's subsidiary judicial of dispute resolution is another structural political value which has

generated implementing mega-rules and methodology, such as the concept of dicta, which curb too

active lawmaking by judges. Primordial values like equality and impartiality inspire the system. An

important objective of the mega-rule stare decisis is to achieve even-handed application of law. The

desire to achieve impartiality explains the core idea that judges decide disputes by applying general

principles and rules which neutralize whatever advantages of wealth and power specific disputants

may have. Another value, one emphasized by Hart and Sacks, is that judges can and should improve

society through the rules they create. This goal generates policy analysis by American judges in the

opinions they write and subsidiary techniques for testing the worth of judicial rules like the "parade

of horrors." The experimental, contingent nature of lawmaking calls into play the value of flexibility

and generates methods for changing and adjusting law: examples from the judicial sphere include

processes for overruling and distinguishing precedents.

The above examples are not exhaustive yet are sufficient to suggest the types of human values

sought to be advanced by the American legal system and the links between those values and the

system's operational methodology. That linkage is based upon the critical belief that reason enableshumans to plan their affairs and to execute those plans by means of behavior. This belief in

rationality presumes much: that a common language enables rules to be created by one group of

persons (X) to be understood and applied by a later group (Y) in a way that the results achieved by Y

reasonably coincide with those sought by X; that means exist to ascertain the purpose underlying

rules and, further, that human reason can calculate the results of rule application which will best

achieve that purpose; that those entrusted with rule creation, interpretation and application can be

trained to learn the system's values and methods, including its modes of improvement, and that such

training, with improvements, is transportable from generation to generation; and that actors in the

system will operate in good faith, not disguising prejudice and partiality in the form of judgment and



discretion. Naturally, if one believes that rules have no content, that logic is merely trickery and that

humans are incapable of rising above animal instincts, neither the American legal system nor any

other in the world can prove acceptable. Human experience expels such cynicism; in America and

abroad, today and in the past, the existence and operation of law has demonstrated the validity of

the reason-based premises upon which legal systems have been structured and executed.

Of course, legal systems can hardly claim perfection, even one as healthy as America's. It is child's

play to browse through the law, particularly constitutional cases with their soft and multiple premisesand policies, to find inconsistency and contradiction or to scratch the law's surface to find class

favoritism in particular rules and decisions. When one dwells in the soft boundaries of legal

categories one should not be shocked or dismayed to see them collapsing into each other and, should

one spend too much time in the gray zones, one can quite easily lose sight of the valuable functions

performed by those categories and definitions in the main.

One of the great strengths of the legal system in the United States is its capacity for change and

adaptability. As "left-wing writers on law" and "outsiders" make their way into legislatures and onto

the bench, new values and beliefs will enter American law, modifying its content to accommodate

America's ever-increasing pluralism. Hart and Sacks and Mishkin and Morris and Harry Jones andcompany taught a system of lawmaking and application which is robustly non-denominational, a

fabric of values, postulates, techniques and structures created by generations of American lawyers,

judges and legal academics and quite beyond simple classification

Documents

The Disappearance of Legal Method - Richard Cappalli