Law school lite.
If the popular conception of law school has been embodied in a single person, that person is Professor Charles Kingsfield. The imperious Kingsfield made life miserable for students in The Paper Chase. He was always intimidating--at times even frightening--but beneath his scowling condescension lurked a goal.
In one famous scene he explained the purpose of law school. "You come in here with a skull full of mush," he barked, "and you leave thinking like a lawyer." Professors and practitioners agree: learning to think like a lawyer is what a good law school is all about.
Today Kingsfield has a competitor for Law School Icon. He is Steven Emanuel, a mustachioed, red-haired lawyer-turned-businessman who peddles his wares to America's 120,000 law students. His products? Twenty-six books that outline and summarize the major courses. Last year he sold the Emanuel Law Outline ($17.95) on constitutional law to more than one out of three first-year law students.
Emanuel, who began his career by selling a home-made outline to his civil procedure classmates at Harvard Law School, says his outlines have made him a "cult figure in American law schools." He is more accurately the Lee Iacocca of a burgeoning industry: commercial legal outlines and "canned briefs"--Cliffs Notes for law school, if you will. Today, students frequently use Emanuel's guides or those put out by his competitors--Gilbert Law Summaries, Sum and Substance, Black Letter Series, Legalines, Casenote Legal Briefs, and Nutshell Law Outlines--for that extra edge in class and on exams.
"Considering you're spending thousands upon thousands of dollars for law school, an extra $12 [for a commercial outline] is just not consequential," says Stanley D. Chess of Harcourt Brace Jovanovich, which publishes Gilbert Law Summaries.
Chess might have it wrong. After spending upwards of $20,000 a year to learn to think like lawyers, students could be plunking down an extra 12 bucks to defeat the entire purpose. Although law schools have the vice of brainwashing students with an adversarial approach to human affairs, at their best they do have the virtue of teaching students how to think. But not if students are foolish enough to depend on these outlines.
The exploding valise
Here's how the commercial aids work, and why they can be dangerous. Take the venerable 1928 case, Palsgraf v. Long Island R.R. A man ran to catch a train as it was pulling out of the station. Two railroad employees struggled to get him on board. They succeeded, but in so doing dislodged an unmarked package the man was carrying. The package, which turned out to contain fireworks, fell to the track and exploded on impact. The explosion rocked the train platform, toppling some scales. The scales struck and injured Mrs. Palsgraf, who was waiting on the platform. She sued the railroad.
Three outlines offer three different views on what the issue is in this famous case. Emanuel says it's negligence: "Whether, given the fact that the defendant had been negligent toward someone, this negligence was enough to give rise to liability to the plaintiff, injured by fluke." The Casenote Legal Brief talks about duty: "Did there exist a duty by [the railroad] to Mrs. Palsgraf by which [the railroad] would be liable had it breached that duty by its negligence?" And Legalines thinks the issue hinges solely on whether any "risk of harm to the plaintiff was foreseeable."
None of these issues is technically "wrong," although most torts professors would dispute them all. What is wrong, though, is that the outlines lead students to believe a case has one "right" issue, one monolithic meaning, one "answer." For thoughtful students, Palsgraf isn't about trains and negligence any more than Crime and Punishment is about a guy who kills his landlord.
Sure, a case's issues and outcome are important, but students who make a beeline to the holding jeopardize their educations. They sacrifice the learning and excitement that accompany the journey.
The majority opinion in Palsgraf is by one of America's greatest jurists, Benjamin Cardozo. He begins by summarizing the facts, and then moves immediately to his conclusion, that the railroad wasn't negligent towards Mrs. Palsgraf because it owed no duty to her in the first place. "Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed," Cardozo writes. Since "no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless" cannot make the railroad liable to people standing on the platform.
But Cardozo doesn't stop there. He takes readers on a few scenic byways. "A different conclusion [from his]," he writes, "will involve us in a maze of contradictions." He asks if the railroad would be liable if someone kicked a bundle of newspapers that turned out to be a can of dynamite. How about if someone left an explosive-filled valise on the platform? His final example is his best:
"One who jostles one's neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human life transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform."
None of the commercial outlines even mention, let alone quote, this commanding passage.
Cardozo next addresses what it means for an act to be "wrongful." Wrongfulness does not exist in a vacuum but depends on how much risk a situation presents. That's why driving fast on a crowded street is wrong but driving fast on a motor speedway is not. Cardozo uses that example to guide us back to Mrs. Palsgraf's predicament:
"If the guard had thrown [the package] down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearance could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent."
I have that passage underlined in my torts book. Next to it I wrote, "Why is this point so persuasive?" Cardozo had taken me along on his journey, and though I wasn't sure exactly where we were going, I was seeing (and learning) a lot along the way.
Just when Cardozo has you convinced, along comes Judge Andrews. His spirited dissenting opinion, which receives short shrift in the commercial guides, is also compelling. Andrews believes individuals owe a duty of care not just to certain people, but "to the world at large for those acts that may unreasonably threaten the safety of others." That belief raises political and philosophical questions Legalines does not address.
Andrews's broad notion of duty leads him down a different path. Unlike Cardozo, he thinks the railroad did owe a "duty of care" to the people on the platform and that it breached that duty--the definition of negligence--when it bobbled the explosives. That means Andrews asks a question Cardozo doesn't reach: Did the railroad's negligence cause Mrs. Palsgraf's injury? He cautions, though, that:
"Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only an omniscience can say."
Steven Emanuel is not that omniscience.
Andrews then descends from these considerations to confront the crucial, earthier, question: Was the railroad's negligence so connected to Mrs. Palsgraf's injury that the railroad should be held liable? Andrews reasons that the explosion was a substantial factor in producing the harm; had it not occurred, Mrs. Palsgraf would not have been hurt. The blast directly and inevitably resulted in her injury; no other forces intervened. Now, to determine whether A proximately caused B is not always easy. "We draw an uncertain and wavering line," Andrews admits, "but draw it we must as best we can." He draws his line and concludes the railroad is liable for Mrs. Palsgraf's injuries.
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.
What drives students to buy summaries and outlines are often the qualities that got them to law school in the first place: a mix of competitiveness and anal retentiveness. At prestige schools most students have been in the top 10
percent of their class since kindergarten, so 90 percent are in for a new experience. And at other schools, high-paying jobs go only to the top students. So competition is keen for high exam grades and spots on Law Review. Buying an Emanuel guide or a Gilbert is a way to give yourself an edge or to be sure the other students don't have one.
It is also possible that a responsible, conscientious student who has done all the hard work might still try an outline for another view of a case but won't necessarily adopt that view as his own. And some law school teaching is so opaque, confused students must seek outside sources for clarity. Sometimes outlines can even be a saving grace--like when a rough night prevents you from finishing your lengthy property assignment. Regular use and dependence are the real dangers.
It's true that many things we "learn" in law school have no bearing on our future legal practice. At one point I knew the six requirements (or are there five?) for the running of the burden of a real covenant. I can't recite them anymore and probably will die without ever having to. Yet I did learn something that will be useful in practice. I learned how the requirements developed, considered the rationale behind them, and, most important, reasoned along with the judges who wrote the opinions in these property cases. That's why any serious lawyer would rather read a case herself than have a faceless scribe at Casenote Legal Briefs tell her what it's about.
Law schools are not barber academies. They do not teach students how to practice law. At their best, law schools are thinking schools. They train future lawyers, judges, government officials, CEOs, journalists, and cabinet members how to think. Commercial outlines and canned briefs hardly serve that goal.
These law school Cliffs Notes also reflect a troubling trend in American education. Consider a typical student. In college or shortly thereafter, he decides he wants to go to law school (or that he can't think of anything better to do). Because the LSAT is important in admissions, he'll take a Stanley Kaplan cram course to prepare. Once in law school, he'll use an Emanuel to study for his exams and try to nail that Wall Street job. When he graduates he faces still another hurdle, the bar exam. To prepare for that he'll take a review course.
The system is so focused on numbers (LSAT scores, exam grades, bar results) and credentialism it has created a culture that discourages intellectual and practical skills. As a result, students will seek (and pay for) commercial outlines or anything else that will boost their scores a few points.
The problem is that clients want attorneys who can write wills and negotiate contracts, whose weapons are their minds--not their Gilberts. America needs legislators who can solve problems--not parrot Emanuel's view of strict liability.
Professor Kingsfield would be aghast. Today many students who enter law school with a skull full of mush leave with only student loans to pay back and a few Emanuel outlines tucked under their arms.
Think about that the next time you need a lawyer.
Daniel Pink is a student at Yale Law School.
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|Title Annotation:||law students depending on law outlines and summaries|
|Date:||Nov 1, 1989|
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