Casebooks, Change and the Masculine Pronoun
posted by Lawrence Cunningham
Casebooks remain the central focus of instruction in law schools, and though they have evolved over the past century, change has been glacial. The most substantial change, begun just a couple of generations ago, by Prof. Knapp’s book, was to abandon the exclusive use of the masculine pronoun in the text.
The closest thing to a revolution in the production of law school materials was C. C. Langdell’s original Contracts casebook in 1870. But the book was not created parthenogenetically and was not an instant success. Langdell’s compilation of cases and instruction using the case method—teaching case after case in a logical order to reveal simple underlying legal ideas and categories—was a response to a long history of grappling with alternative ways to teach law. The principal approaches were the lecture and the treatise, though neither seemed entirely satisfactory. But students had always read cases; Langdell did not invent the idea that they should do so. He did make cases the centerpiece of his system and induce his followers to proselytize effectively for its gradual expansion. Yet Langdell himself did not see the project through, leaving others to build incrementally on his advance.
Ever since Langdell’s time, it has been tempting to identify new eras, paradigm shifts, and revolutions in legal pedagogy. But the changes are far rarer and more incremental than the heralds suggest. Perhaps it was not an exaggeration in 1921 for David Amram, when reviewing new casebooks by both Arthur Corbin and Samuel Williston, to pronounce that public policy aspects of their contract law case books portended a huge shift: “That we are at the beginning of a new era of development in our philosophy of social relations is a generally accepted truism.” But neither Williston’s nor Corbin’s book inaugurated any such transformation. They reinforced the Langdellian method that had been solidifying during the intervening fifty years as a result of kindred books by other devotees of the case method such as William Keener.
A new outlook, if not a new era, did emerge the next generation, with the arrival of Edwin Patterson’s two-volume Contracts casebook in 1935. This was championed as “the product of a new generation,” featuring “new points of view,” and “reveal[ing] a tendency to inject into the study economic and sociological data.” Others celebrated the achievement as reflecting the scientific advances of the period, especially concerning psychiatry and mental capacity to contract: “In an era of experimentation and change in society at large, and even in law schools, it seems that the entire subject matter of these volumes deserves a place in the curriculum.” This was an achievement and the beginning of a shift, but adding scientific perspectives was hardly a new paradigm.
The tendency of the case method’s proponents to meet complaints with incremental adaptation is magnificently displayed in Lon Fuller’s innovative 1947 casebook. Fuller’s book not only included cases for serial examination but also extensive notes, problems, and drafting exercises, together with probing questions about the nature of law. Moreover, Fuller replaced the familiar framework of the Contracts course with a new organization by starting the book with contract remedies instead of contract formation. Contemporaries beheld the work as a masterstroke, blending the case method tradition with new approaches of notable originality. As Malcolm Sharp wrote reviewing the volume, this was “more than a case book.” In fact, Fuller’s book, rather than Langdell’s fossil, is best seen as the true forerunner of contemporary casebooks (and remains one of them, thanks to Prof. Eisenberg).
Of course, Fuller’s book did not accomplish a revolution either, and there was much left to do. The next milestone was Sharp’s 1954 book with Friedrich Kessler, another impressive work combining tradition and innovation. It presented all the great cases along with detailed notes on them, but instead of implying that they formed a coherent doctrine, it revealed glaring tensions, doctrinal contradictions, and the dissolution of the Langdellians’ revered ideas and categories, such as the distinction between contracts and torts. This monumental achievement was incompletely realized, however, though a generation later it remained aptly extolled as a “reorganization of the subject” and “a radical and enormously creative innovation.” It was left for a future co-editor of the book, Grant Gilmore, to draw out the work’s implications in its 1970 edition. These included the expansion of liability in America, the further blurring of the distinction between torts and contracts and the socialization of contracts that Gilmore depicted in his famous text, The Death of Contract.
Though momentous, even these accomplishments did not constitute a revolution, as demonstrated by the next major development. Charles Knapp’s 1975 casebook not only built on Kessler/Sharp and Gilmore’s innovations but took a turn back towards the doctrinal orientation of the earlier generations’ casebooks. Having fused many of these new strands, it then welded them to the traditional doctrinal categories. Strikingly, a reviewer of this work reached end-of-era conclusions that turned out to be unjustified. Karl Klare declared in 1979 that “Knapp’s attempt to give students access to the experience of thinking through contracts (and the contracts-torts relationship) as a whole surely signals the impending demise of the casebook method of instruction . . . .” That would indeed have been a revolution but it did not occur. The casebook has been thriving ever since (and Knapp’s remains a leader in the contracts field).
The casebook remained the vehicle of choice even for the “law in action” approach epitomized by Stewart Macaulay’s 1995 effort. His book drew expressly on Fuller and Kessler/Sharp, putting remedies first and then showing doctrinal contradictions and policy tensions. Its most distinctive feature, however, was its insistence that, in contracting, business reality was more important than legal doctrine, and it implemented this insight by organizing cases by transaction type, rather than according to the familiar doctrinal pattern. Though impressive, this was not entirely novel either, as contract materials had been so arranged in Harold Havighurst’s 1950 casebook and Ian Macneil’s 1971 book.
By developing and extending these earlier efforts, moreover, Macaulay joined critics of the case method who debunked the practice of teaching Contracts using common law appellate opinions, saying that was akin to teaching Zoology by focusing on unicorns and dodos. Macaulay’s book was influential in altering the Contracts course, but it did not transform it. Books today increasingly concentrate on materials other than appellate opinions, but the casebook still dominates the classroom, and common law appellate opinions remain the mainstay of the Contracts course.
The big thing that has changed, and is part of a revolution, is the use of the masculine pronoun. Before 1975, all casebooks and all reviews of them used the masculine pronoun exclusively. That simply reflected the reality of the worlds of business and law, dominated by men and with women out of sight. Professor Klare applauded Knapp’s 1975 effort: “Another attractive feature of the book is its modest but noteworthy effort to respond to the pervasive sexism of American legal culture.”
As recently as 2001, Lenora Ledwon began her review of the Contracts casebook by Amy Kastely, Deborah Waire Post, and Nancy Ota, by noting that when she was a student, she had no casebook edited by a woman. To this day, however, casebooks are edited “overwhelmingly” by “white males whose attention to outsider issues” is equivocal, the authors write. So even that extraordinary change, as with the other changes chronicled, is not quite a revolution. Plus ca change . . .
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* This post is an excerpt from a chapter I contributed to the book by Profs. Rudin and Collins called “Legal Education in the Digital Age” (Cambridge U. Press 2012), which I am adapting for an upcoming symposium sponsored by Wash. L. Rev. featuring my recent book, “Contracts in the Real World: Stories of Popular Contracts and Why They Matter ” (Cambridge U. Press 2012).
February 18, 2013 at 10:48 pm
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Responses (8)
Brett Bellmore - February 19, 2013 at 6:51 am
“The most substantial change, begun just a couple of generations ago, by Prof. Knapp’s book, was to abandon the exclusive use of the masculine pronoun in the text.”
Currently the trend seems to be towards the exclusive use of the feminine pronoun. Is this an improvement?
NewProf - February 19, 2013 at 7:34 am
Brett, probably not. It seems the best practice would be to get over the alleged grammatical incorrectness of using “they” in this context. It’s what I always do, and when one points out with pedantic earnestness the alleged problem I give them the “get a life” look.
Shag from Brookline - February 19, 2013 at 8:44 am
I’ve noted recently shifting gender references in a writing that can be annoying and confusing. Perhaps we might revert to he/she or (s)he or s/he. But using the feminine exclusively is a form of affirmative gender action; what’s wrong with that? “She’s” come a long way, baby, so flaunt it. I’m a supportive “he.”
James Grimmelmann - February 19, 2013 at 9:00 am
One rewriting trick I like is to give these anonymous individuals names. That makes it easy to switch up the genders or use only female examples without causing the pronouns — masculine or feminine — to be jarring.
Another way of looking at the issue is that if “she” causes the reader’s eyebrows to rise in a way that “he” wouldn’t have, then the feminine pronoun is still marked and the masculine pronoun unmarked and one (see what I did there?) should use “she” until the eyebrows stop rising.
Scott Fruehwald - February 19, 2013 at 10:49 am
There has been a major paradigm shift in the past few years in the Carolina Academic Press, A Context and Practice Casebook Series. These casebooks are intended to reflect the Carnegie Report’s criticism of legal education. You should look particularly at Michael Hunter Schwartz and Denise Riebe, Contracts: A Context and Practice Casebook (CAP 2009). Also, Professor Schwartz has written an article about writing casebooks, Improving Legal Education by Improving Casebooks: Fourteen Things Casebooks Can Do to Produce Better and More Learning, Elon Law Review, Vol. 3, No. 1, 2011. This is also available on his SSRN page.
Lawrence Cunningham - February 19, 2013 at 11:08 am
Scott: yes, I’ve seen that series, which is great. The issue raised is at what point does one declare a paradigm shift? I doubt one book or one series does it. I haven’t witnessed it yet in American law schools.
Lauren D. Shinn - February 22, 2013 at 5:53 pm
Most of the time, I ignore gender pronouns. The few times I notice them, they’re in the feminine form; in those moments, I become all too aware of the publisher’s attempts to mix up the genders, and I find it distracting. I don’t know if I’d go so far as to name everyone as James G. suggests, but he has a really good point.
I wonder how soon it will be before “casebooks” become searchable databases/ebooks stored in electronic form.
Jimbino - February 24, 2013 at 12:07 pm
Yes, it’s jarring to see “she” or “her” when expecting the masculine pronoun.
What’s more jarring is to realize that Amerikans confuse gender and sex. They need to get out more and learn some foreign languages. Like German, where a spoon is masculine, a fork feminine and a knife neuter. A young woman is also neuter. It has nothing to do with sex.
In Portuguese, a child and a person are feminine. It has nothing to do with sex.
Amerikans need to learn to say, “Everyone needs to bring his own pencil.” Use of ungrammatical and PC “they” leads to stupidities like:
“As soon as the parents bring the kid in, give them their circumcision.”
“Every pregnant woman needs to have their blood pressure monitored.”
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