Stephen Johnson (Mercer), The Course Source: The Casebook Evolved, 44 Cap. U. L. Rev. 591 (2016)
Psychologist Abraham Maslow once noted that “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” Law students are changing, law schools are criticized for failing to prepare practice-ready lawyers, and there is nearly universal consensus that legal education must transform. However, the principal tool that many faculty rely on to prepare their courses, the Langdellian casebook, is ill-suited for the transformation. The prototypical casebook that is still the standard for many courses today was designed for the Socratic dialogue and case method mode of instruction. While there is still a place for that method of instruction in legal education, other methods of instruction, the carriage bolts and lag screws of modern legal education, cannot be hammered down with the traditional casebook.
Several influential studies of legal education have concluded that law schools should focus more heavily on training students in professionalism and in skills that are vital to the practice of law. In addition, the American Bar Association recently amended its accreditation standards for law schools to require schools to include more assessment and experiential learning in their curriculum. Over several decades, many faculty have moved away from the traditional Socratic dialogue and case method form of instruction, at least in upper division courses. While many more are receptive to making such changes, they are reluctant to abandon those methods unless there are tools available that will ease the adoption of other teaching methods. The traditional casebook does not provide those tools. Teaching materials and pedagogy are intimately connected and major shifts in pedagogy can be achieved through the evolution of teaching materials. Before there can be widespread adoption of new teaching methods that a have a rich focus on skills, professionalism, experiential learning and assessment, casebooks must evolve to provide faculty with the tools to re-design their courses.
Technology should play a central role in the evolution of the casebook. Today’s students are digital natives and technology has played a central role in their education beginning in elementary school. The evolved casebook should be an e-book, but one that is unlike the e-books that legal publishers have marketed in the past. Rather than a traditional casebook, it should be a “course source”, a one-stop shop for all of a faculty member’s teaching resource needs. The Carnegie Foundation Report, Educating Lawyers: Preparation for the Profession of Law, stressed the importance of training students in the knowledge, skills and values necessary to the legal profession. A course source should recognize that those three apprenticeships are interconnected, and that a faculty member needs the tools to train students in all of those areas, rather than assuming that a separate class that focuses on the legal profession or research and writing will develop the student’s skills and values. In addition to the cases, statutes, notes and problems that are included in casebooks today, a course source should include simulations, drafting, research, counseling, negotiation and other skills-related exercises, professionalism hypotheticals and problems, as well as quizzes and a variety of formative assessment tools that faculty can incorporate into their courses. As an e-book, it should take advantage of the wealth of materials that are available online and in a variety of media formats, by incorporating links to content that puts the cases, materials and disputes in the book in context, to provide a fuller and richer understanding of the materials. Ideally, a course source would be created and distributed through a Creative Commons license as open source materials, so that faculty could choose the portions of the materials that they find most useful and relevant for their teaching and distribute those materials to students for free.
This article outlines a vision for the transformation of the casebook into the course source that is necessary for the broader adoption of a range of teaching methods by faculty. Part I of the article describes the adoption of the Socratic dialogue and case method in legal education, the criticisms to those modes of teaching, the development of teaching methods that are being used to supplement or replace the Socratic dialogue and case method, and the forces, such as the ABA Standards, the Carnegie Report and similar reports, that are catalyzing the transformation of teaching methods in legal education. Part II describes how the changing nature of the student body in law schools requires faculty to adopt new teaching methods to supplement or replace the Socratic dialogue and case method. Part III outlines the evolution of the Langdellian casebook and demonstrates that most traditional law school casebooks and coursebooks are not designed to facilitate adoption of a variety of teaching methods that are necessary to educate a changing student body. Finally, Part IV outlines a vision for the course source, a new generation of teaching materials to replace the casebook. That section of the article discusses the benefits and limitations of the evolved casebook, and the impediments to its evolution.