A Casebook That Gets Used
posted by Nate Oman
Unlike my law professor co-bloggers, I don’t have piles of free case books littering my office. (At present, I do have lots of insurance documents and stacks of filings in pharmaceutical cases.) In legal practice I find that there is only one of my case books from law school that I still regularly consult: Hart & Wechsler’s The Federal Courts and the Federal System. There are a number of reasons for this.
First, I am mainly a litigator, which means that I spend a lot of time fussing about procedure and jurisdiction. Indeed, a great deal of my time of late has consisted of finding esoteric ways of shuttling cases from one court to another court. Of course, from time to time when all else fails we are forced to grapple with the substance of the claims in the cases. However, as a law-geek I am happy to spend most of my time on the part of the case the occurs before and up to the 12(b)(6) motion and then after final judgment on appeal. Facts are such troublesome things and they require a huge amount of scutt work to develop. Procedural and jurisdictional fussier that I am, Hart& Wechsler comes in handy.
Second, the law of federal courts is pretty complicated and if you poke around long enough you will find that it is riddled with odd little doctrines and exceptions. Hart & Wechsler is filled with case citations followed by questions. The questions are actually useful in practice. On one or two occasions, I have found that trolling through a section of Hart & Wechsler, I come across a question and think “If the answer to that question is ‘yes,’ then my client wins.” And hence a legal theory is born.
Third, Hart & Wechsler very self-consciously contains more material that is pedagogically useful. I had federal courts from Dan Meltzer, who is one of the current authors, and he made no attempt to cover everything that the text book covered. He would have been insane to do so. (Which doesn’t mean that there aren’t other insane teachers at HLS.) Obviously, Hart & Wechsler isn’t Wright & Miller, but it does provide quasi-comprehensive coverage. More importantly, it makes a serious attempt to reference the relevant secondary literature in the law reviews. Because federal courts is an area where there is still a fair amount of doctrinal scholarship, the referenced law review articles are actually useful from time to time.
So for law professors interested in writing case books with a bit of shelf life in them, here is my advice. First, pick a topic that comes up ubiquitously in litigation. Second, pick a really complicated body of law where there are lots of ambiguities. High light as many of these ambiguities as possible so that future litigators can troll through them looking for a stray edge of the law to worry. Third, be big. Don’t limit yourself to what would be useful to students in class. Make your case book into a portal for the field. Cover all of the epicycles in the doctrine and provide citations to lots of cases and relevant law review literature. Also, pick a topic where the law review literature still contains serious doctrinal writing.
Do these things and your case book to can earn a hallowed spot on my desk next to the insurance documents.
October 26, 2005 at 10:20 pm
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Responses (5)
Mike - October 26, 2005 at 10:49 pm
I feel the same way about Nahmod’s Constitutional Torts. The author presents hypotheticals and then cites to the opinion addressing the hypo. And the notes at the end of cases actually have citations to lower-court opinions. You see, casebook authors, there are these things called “lower courts,” and these “lower courts” do all sorts of funky things with Supreme Court precent. It adds a lot of context to the course to see the Supreme Court’s rules applied by other courts. (Plus, there’s no better way to prep for a Sec. 1983 final exam than to read the facts of a lower court opinion, hide the law, write a practice essay, and then see what the panel did.) It’s also a mini-lesson in judicial activism. The Fifth Circuit, e.g., still applies heightened pleading requirements in Section 1983 actions, Leatherman be damned. If ignoring clearly-established SCt. precedent isn’t activist, then I don’t know what is. (Plus, it’s always fun to throw cases like this in the face of conservatives when they cry about the Ninth Circuit’s activism. Thanks to Nahmod, I had this ammo while still in law school.)
Nate Oman - October 26, 2005 at 10:55 pm
I know how you feel. I am constantly pulling out cases dealing with the probate exemption to federal jurisdiction during heated political arguments. Thank heavens for Hart & Wechsler!
Nate Oman - October 26, 2005 at 10:56 pm
Oops! “Exception” not “exemption,” although I guess that probate cases are also exempt from federal jurisdiction.
Mike - October 26, 2005 at 11:27 pm
Nate, either your serious (in which case your self-proclaimed title of law nerd is deserved), or you just made a pretty good joke. Anyhow, activism is activism, whether it’s a court ignoring Leatherman, or doing something goofy in a “sexy” case. (Of course, as you know, procedure and substance in federal courts is a blurry line.) Indeed, it’s an easier case to make that courts are activist on some matters of procedure than substance. Was Newdow (CA9) really activist? Reasonable minds can differ. But does Leatherman allow heightened pleading? No. It’s not debateable.
A while ago there was a discussion on what activism looks like. I think everyone can agree that when a lower-court ignores controlling precent – even in a non-sexy case – it’s activism. Indeed, it’s more pernicious, since only about twenty people will care, and thus the activist panel won’t get the attention its lawlessness deserves.
The Volokh Conspiracy - October 26, 2005 at 11:47 pm
Hart & Wechsler’s “The Federal Courts and the Federal System”:
Is this famous casebook a magnificent treatise? A law geek’s guilty pleasure? Or is it just an annoying series of unanswered questions? Over at Concurring Opinions…
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