Law school lite - law students depending on law outlines and summaries

Washington Monthly, Nov, 1989 by Daniel Pink

Who's right now? Cardozo or Andrews? It doesn't matter. It's the excitement and stimulation of arguing such cases back and forth with the professor that does. That's how law school develops the mind. The case outlines don't do any good in these discussions.

Students who take the commercial outline express-route bypass debate. They settle for, say, Gilbert's view of a case instead of joining the fray and wrestling to reach their own conclusions. They sacrifice the journey in order to be teleported to some supposed answer.

Palsgraf must be read more than once. The writing is graceful, the reasoning subtle. It discusses some of the fundamental conundrums of tort law and makes forays into logic, politics, time and space, social obligation, and human nature. Students who journey through a case, who analyze it on their own, have started to think like lawyers. They've done Professor Kingsfield proud. Students who read only an outline or canned brief (or who read a case but go to the study aids for the meaning) are wasting 20 grand.

Where Palsgraf's language is rich and absorbing, the language of the commercial crutches is generally short and imprecise. Casenote Legal Briefs even has a condensed version of each synopsis. Late for class? Gulp some coffee and skim Casenote's 67-word summary and explanation of what even Emanuel calls "the most famous tort case of all time." You'll know some lady got bounced on a railroad platform, sued, and lost. If your professor calls on you, just spit out Casenote's Concise Rule of Law: "The risk reasonably to be perceived defines the duty to be obeyed." That's probably close enough to avoid much in-class embarrassment. Legalines is similarly spare--only about 400 words to describe and discuss this complex case. Nuance is nonexistent.

Out of the closet

There is yet another problem with the outlines. They dictate to students where a case belongs in the overall context of tort law. Legalines cubbyholes Palsgraf in Chapter VI: Proximate Cause, Part B--Unforeseeable Consequences, Section 9--Duty Owed to the Plaintiff. An important facet of thinking like a lawyer is piecing together cases, statutes, principles, and ideas. The process is more important than the product. Outlining a course ourselves forces my classmates and me to consider the connections between cases, to see how doctrines are built, and to glimpse at semester's end the unity of a body of thought. Commercial outlines, by contrast, are like microwave meals; the synthesis of the material is ready-made--no thought required. Commercial outlines are a form of "passive and spoon-fed learning" that can be a "substitute for thinking," says Colin Diver, dean of the University of Pennsylvania Law School.

Fifteen years ago commercial outlines were generally not sold in law school bookstores. Now "it's out of the closet," says Gilbert's Chess. Harvard's main bookstore, the Coop, reports that the materials are "very popular." At Ohio State, at least two-thirds of the student body buys outlines, often more than one for each course. Columbia has a bookstore that sells only commercial study aids. The store, run by the aptly named Journal of Law and Social Problems, does a brisk business the first few weeks of each semester and around exam time.