Law school in the United States involves heavy tomes called “casebooks”. While other requirements may vary, law school inevitably involves introductory courses on the major divisions of common law jurisprudence: Torts, Contracts and Property. These courses are usually taught with casebooks. The classic casebook includes, with little or no explanation, actual published cases from appeals courts around the country (perhaps a few from England, as well). The beginning law student must quickly learn what to do with the case. You can memorize every word in it, but that will do you no good. The law professor will expect analysis into established categories: what are the facts, the rationale, the holding? Then the student will be asked whether the reasoning makes sense if the facts are changed ever so slightly: the dreaded “hypothetical”.

While one might argue that the “Socratic Method” has been around since Periclean Athens, the casebook method is actually of much more recent vintage.

The “case” method, or “casebook” method, started as an attempt to make law “scientific”. It was introduced in the early 1870’s by Christopher Columbus Langdell, Dean of Harvard Law School from 1870 to 1895. Prior to Langdell, legal education consisted of memorizing “blackletter rules” from legal treatises by academics such as Blackstone’s Commentaries. Langdell believed that law could be made into an “empiricial” (and therefore objective) science by using the cases decided by common law courts as raw material for a scientific survey. While individual judges’ opinions might be skewed by their own biases or errors, objectively valid legal rules would emerge from the study of a sufficiently large sampling, Langdell believed.

As “science”, Langdell’s method was a joke. As pedagogy, however, his casebook method had many advantages in training lawyers, and it remains the predominant method of legal education in the United States. Cases were gathered in textbooks, devoid of notes, comments or explanations. Students were expected to read the casebook, and then come to class to discuss it. Discussion varies with the professor, but considerable lip service is given to the “Socratic Method”, wherein students are induced to express their opinions, and then are shown why their opinions are false. This can be an exercise in cruelty and humiliation, or a philosophical dialectic, or both. Whether the professor is a true midwife to wisdom or just an arrogant ass, forcing students to review the material and express their own opinions, more or less publicly, is infinitely superior to merely reading and spouting rules, as a training for appearing in court and making an argument to a judge. Reading the case, determining the range of the factual circumstances to which the holding applies, figuring out which precedents are “on point” and distinguishing contrary cases: these skills are called “thinking like a lawyer”.

Unfortunately, litigation also entails dealing with positive law (statutes enacted by a legislature, regulations promulgated by the executive) not just case law. Also, the work of a lawyer may not be limited to litigation, but may instead focus on “transactional” work: writing contracts, and forming or merging businesses, as well as negotiation and mediation. Studying a “casebook” does not develop these skills.

Langdell is also credited (or blamed) for creating “law school” as we know it today, instituting at Harvard Law School now familiar practices, such as: (1) a law school admission test, (2) a three-year law degree program, (3) a graded curriculum, divided into “courses” of so many hour-units apiece, (4) final examinations, and (5) full-time professors.