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Exorcising Langdell's Ghost: Structuring a Criminal Procedure Casebook for How Lawyers Really Think Andrew E Hastings Law Journal Volume 43 | Issue 1 Article 3 1-1991 Exorcising Langdell's Ghost: Structuring a Criminal Procedure Casebook for How Lawyers Really Think Andrew E. Taslitz Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Andrew E. Taslitz, Exorcising Langdell's Ghost: Structuring a Criminal Procedure Casebook for How Lawyers Really Think, 43 Hastings L.J. 143 (1991). Available at: https://repository.uchastings.edu/hastings_law_journal/vol43/iss1/3 This Essay is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Essay Exorcising Langdell's Ghost: Structuring a Criminal Procedure Casebook for How Lawyers Really Think by ANDREW E. TASLITZ* A ghost haunts traditional law school casebooks: the ghost of Christopher Columbus Langdell. Langdell founded the case method that has dominated law school education for so long. Langdell's method has been criticized for offering no clear guidance on legal reasoning, hiding black letter law, unnecessarily bruising student egos, and ignoring the artistry of lawyering and the distinct value that other disciplines offer to legal analysis.' This essay embraces these criticisms, concluding that the case method as traditionally conceived should not be the guiding philoso- phy for teaching law.2 We must exorcise Langdell's ghost. This essay will add to the earlier debate on law school teaching methodology by applying these criticisms of the case method to the de- sign of a casebook, specifically a new criminal procedure text. Critics of the case method have typically focused on changing what teachers do in * Assistant Professor, Howard University School of Law; former Assistant District At- torney, Philadelphia, Pa. B.A. 1978, Queens College; J.D. 1981, University of Pennsylvania Law School. I would like to thank my wife, Patricia V. Sun, Esq., for her helpful comments on earlier drafts of this essay. Appreciation also goes to my research assistant, Julie Abbate, for her help in completing this essay, and to the Howard University School of Law for its financial support of this project. 1. These criticisms are explored infra at text accompanying notes 6-26. 2. For effective analyses of the reasons for siding with the "cons" in the debate over the pros and cons of the case method, see, e.g., June Cicero, Piercingthe Socratic Veil Adding an Active LearningAlternative in Legal Education, 15 WM. MITCHELL L. REV. 1011 (1989) (sug- gesting more active learning is needed); Steven I. Friedland, The Use of Appellate Case Report Analysis in Modern Legal Education: How Much Is Too Much?, 10 NOVA L. REv. 495 (1986) (decrying the obsession with appellate case analysis); Nancy L. Schultz, How Do Lawyers Re- ally Think?, 42 J. LEGAL EDuC. (forthcoming March 1992) (manuscript at 1, 10-17) (empha- sizing need to integrate doctrine and skills). [143] HASTINGS LAW JOURNAL [Vol. 43 the classroom (arguing, for example, that learning should be made more active through the use of simulations and small group problem-solving exercises) 3 without focusing significantly on the primary tool that teach- ers use: the casebook. I offer a criminal procedure casebook as an example for two simple reasons. First, I teach criminal procedure. Second, the casebooks in this subject have lagged behind experimental efforts at replacing the case method in other subject areas. Designing a better book, however, first requires an understanding of how criminal procedure casebooks are now designed. This essay, therefore, includes a critique of Welsh White and James Tomkovicz' CriminalProcedure: ConstitutionalConstraints Upon Investigation and Proof, one of the newest and best criminal procedure casebooks on the market. 4 The distinguishing feature of this book is its thorough use of complex and interesting problems, an approach taken by no other criminal procedure casebook. Despite this innovation, however, White and Tomkovicz' text is still bound by the assumptions of the Langdellian case method. Those assumptions are: (1) law is a "science" distinct from other disciplines and therefore is best understood without reference to them; (2) this science is best studied through exclusive focus on appellate cases; and consequently (3) the "art" of lawyering (for ex- ample, interviewing, counseling, and negotiating) is not a fit subject for a "scientific" law school education.5 A casebook written in an alternative model-one that rejects much of Langdell's basic teachings-would have four major goals: first, inte- grating theory and practice in the way that the best practicing lawyers do; second, expanding the ways in which students learn by doing in order to teach them more about how practicing lawyers reason and ply their trade; third, making the artistry of lawyering as important a subject as appellate case analysis; and, fourth, teaching students to use the tools of 3. See sources cited supra note 2 and infra notes 16-23. 4. WELSH S. WHITE & JAMES J. ToMKovIcz, CRIMINAL PROCEDURE: CONSTITU- TIONAL CONSTRAINTS UPON INVESTIGATION AND PROOF (1990). 5. See infra text accompanying notes 6-26. The "Langdellian case method," as used here, means the long dominant method of legal education that has grown from Langdell's philosophy, regardless of whether Langdell himself consciously subscribed to all the details of, or variations on, that method or fully thought through its implications. See ROBERT STE- VENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850s TO THE 1980s 279 (1983) ("[W]e may be sure that Langdell will continue to be blamed for things that he never believed or at least never understood."). The three assumptions noted in the text, while likely accurate statements of Langdell's underlying beliefs, see infra text accompanying notes 6-26, are therefore important for another reason: they accurately reflect the unifying notions under- lying most of the past and present law professoriate's teaching methodologies. See infra text accompanying notes 79-98 (explaining why even the much touted "problem method" is really but one variant on the Langdellian case method). November 1991] CRIMINAL PROCEDURE CASEBOOKS other disciplines, especially the social sciences, in practicing both the sci- ence and art of lawyering. The ultimate purpose of this essay is to sug- gest how these goals might best be furthered in casebooks. Part I thus begins by briefly reviewing the history, assumptions, and criticisms of the case method and how it has been used to design casebooks. This review sets the stage for examining the limitations inher- ent in even the most modem variants of that method in casebook design. Part II illustrates these limitations by evaluating one such modem vari- ant, White and Tomkovicz' text. Reflecting on these limitations, Part III suggests specific ways to design a criminal procedure casebook that will address the flaws in the case method. The suggested alternative model casebook builds upon de- velopments already occurring elsewhere in the law school curriculum. Still, this model does recognize that there is much of value in the case method. The method is criticized, therefore, not because it has nothing to offer but because it does not have enough. In short, I seek to cast out Langdell's ghost but to respect its legacy. I. Defining and Critiquing the Case Method A brief review of the history, approach, and flaws of the case method will help us envision what a casebook seeking to cure those flaws might look like. To that end, we turn now to the latter part of the last century. Aspiring professions, it has been said, struggle for recognition as fields requiring training in a complex, specialized "science" that uses a methodology distinct from (and perhaps, within the relevant area of ex- pertise, even better than) that of other disciplines. 6 This apparently is what happened with the legal profession in the late nineteenth century. Training in the law office gave way to training in the law school with the arrival of the law's (and thus the law school's) patron saint of law-as- science, Christopher Columbus Langdell. 7 6. See DONALD SCHON, THE REFLECTIVE PRACTITIONER: How PROFESSIONALS THINK IN ACTION 24-25 (1983). 7. See JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 74-76 (1976) (describing the rise of Langdell's method by the title, "Scien- tific Expertise: The Triumph of the New Professoriat"). The rise and growing dominance of the case method in the history of legal education are discussed in depth in STEVENS, supra note 5. Stevens suggests that the "scientific" approach to law and law teaching was partly success- ful because of its snobbism. Id. at 53, 63. Langdell, of course, introduced his approach at Harvard. Id. at 36, 52-53. Other "elite" schools (and those aspiring to be elite) quickly fol- lowed suit. Id. at 63. Students thus began viewing attending case method schools as a way of improving job marketability. Id. Beyond its snobbism, the "scientific" approach to law had HASTINGS LAW JOURNAL [Vol. 43 To Langdell, "law was a science, the library was its laboratory, and cases were its natural elements."'8 As a science, law emphatically was not "a species of handicraft," to be learned through apprenticeship,9 but rather a scientific discipline properly studied only by specially trained researchers-law professors.10 Law professors need not, and indeed should not, have training in practice, but only in law's version of scien- tific methodology-the case method.11 According to Langdell's model, the cases are the only source of legal principles and knowledge, the library the only laboratory worthy of the name.1 2 Law study, therefore, consists of divining the universal princi- ples that the cases unquestionably embody.1 3 To teach students those other appealing aspects.
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