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Rethinking Electronic Casebooks
Gary Neustadter, Santa Clara University School of Law [1]
Introduction
During the past few years,
law professors and law publishers have been creating and marketing electronic
casebooks as companions to some traditional paper counterparts. This practice
is based on the premise that students will purchase one version or the other
(occasionally both) based in part on individual preference for one of two
different ways of seeing the material.[2]
Electronic casebooks therefore mirror the organizational structure and
content of the paper version because the author and publisher, who must
assume classes throughout the country in which some students will be using
the paper and some the electronic version of the casebook, must in fairness
provide the same material for each group. Electronic technology so used
is akin to the power boosts added to fruit drinks at currently fashionable
juice bars. The technology provides a variety of very useful tools for
navigating, reading and manipulating the printed word,[3]
but has not altered the fundamental nature of the materials themselves.
Electronic technology offers
greater potential, not yet exploited. An electronic casebook can be constructed
to permit any adopting law professor the ability to easily and professionally
customize the casebook - - to dissect, reshape, move, delete or add materials
- - prior to distribution to students. A malleable electronic casebook
will facilitate and enhance the ability of the law professor to offer a
distinctive interpretation of the subject, her highest contribution to
student learning. Electronic casebooks can also be literally and figuratively
unbound, through links between the materials and a seamless web of people
and information outside the book, including links with the author to permit
easy and timely communication between the author and law professors and
students throughout the country. These links, transporting students outside
the book, to anywhere on the planet, through the click of a button on a
mouse, will provide students and law professors with a vehicle for instantaneous
access to current information. By comparison, traditional paper casebooks
are revealed as an author's snapshot, an artifact, of the legal landscape
in the year of publication. In this article, I describe the ways in which
electronic casebooks can be constructed to exploit the fuller potential
of electronic technology.
1. Customizing published course materials
Tools are now available
which permit the construction of an electronic casebook that can be customized
by any law professor, prior to distribution to students, to suit institutional
requirements and individual pedagogical objectives. This is not possible
for the casebook printed on paper, for two reasons. First, the casebook
is bound. Unless the teacher or student wants to make a mess, they will
not unbind the book to reorganize its pages.[4]
Second, to save paper, bulk, and money, publishers begin the next item
in the sequence of a book (e.g. an opinion or problem) on the same page
as and immediately following the end of the previous item. Thus,
even if a teacher or student were willing to unbind a book to reorganize
the materials, that wouldn't be enough. They would also need to cut and
paste. Given these limitations, most law professors do the next best thing.
They assign pages from the book in their own chosen order, omit some pages
from the assignment, and distribute supplementary materials. This time
worn practice certainly gets the basic job done, although some students,
especially first year students, don't quite understand the reason and sometimes
grumble about it. A solution through use of electronic technology
is more elegant. More importantly, the electronic solution reduces the
psychological barrier to innovation and creativity created by bound printed
materials.
To enable customization,
the electronic casebook must depart from the traditional linear architecture
of printed, bound work. All existing casebooks, both paper and electronic,
adopt a linear architecture. The author organizes her book by chapters,
numbered one to "n", to reflect the author's conceptual map. The first
chapter begins where the author thinks the student should begin and the
last chapter ends where the author thinks the student should end. Throughout
the book, the author presents commentary, cases, statutes, problems, sample
documents, or excerpts from other materials in a chosen sequence. Electronic
technology permits an alternative architecture in which the materials for
study are placed into distinct digital libraries, analogous to the grouping
of different kinds of materials in different sections of a real library.
For example, one might establish and place material in the following digital
libraries: Cases, Statutes and Regulations, Sample Documents, Commentary
(or what one might simply call Text), and Problems. The materials may but
need not be placed in each digital library in some type of linear sequence
(e.g. alphabetically by case name, or ascending numerical order of statutes).
One can then reach into these libraries through the use of hypertext links
from an outline to the desired item (case, statute, regulation, document,
commentary, or problem) in one of the digital libraries.
The author of this type
of electronic casebook will create the outline in a linear sequence which
reflects her conceptual map, but that outline can easily be electronically
reshaped by both professors (for their classes) and by students (for their
outlines) without disturbing the links to the digital libraries. Moreover,
users can easily add materials to the digital libraries, and create hypertext
links to the new materials from the joutline, or delete references to items
in the outline without deleting the materials themselves. In other words,
the author provides a library of materials (a library which can easily
be expanded) together with a template reflecting her journey through them,
using electronic technology through which the user can manipulate the template
to redirect the journey.
To illustrate how this would
work, consider the materials presented in a variety of casebooks for the
traditional first year Contracts course. Some casebooks begin with the
topic of offer and acceptance, follow with consideration, and end with
remedies. Other casebooks begin with consideration, or with remedies. At
least one casebook considers the Statute of Frauds and the parol evidence
rule back-to-back because both reflect on the extent to which the law of
contract should require or respect formality. Other casebooks, which do
not draw so heavily on that theme, treat the two as entirely different
subjects. On the topic of mutual mistake, some casebooks include an old
standby, Sherwood v. Walker, concerning Rose 2d of Aberlone, the
pregnant cow; other casebooks do not. Some casebooks include problems,
including drafting exercises. Other casebooks do not. Even for authors,
casebooks never present the ideal set or sequence of materials. An electronic
casebook can enable any user to come much closer to the ideal. The libraries
in the electronic casebook will include cases, statutes, problems,
commentary, and sample documents that can be used for all of the traditional
topics in the course, and the electronic casebook will include an outline,
perhaps starting with the topic of offer and acceptance and ending with
remedies. The individual law professor who prefers to start with remedies
can quickly alter the outline to the desired sequence. Law professors can
make the Statute of Frauds and the parol evidence rule next door neighbors,
or move one of them across town. The digital library of cases will include
Sherwood v. Walker and other cases on mutual mistake, and the author's
outline may link to Sherwood v. Walker at the appropriate place
in the outline. The individual law professor can delete the link to Sherwood
v. Walker, linking instead to some other case contained in the digital
library of cases or to a case which the law professor adds to that library,
or can create a link to Sherwood v. Walker if the outline does not
include one.
Authors of these electronic
casebooks can provide more than one possible outline, i.e. more than one
template. For example, the author of an electronic casebook treating the
subject of real estate finance might wish to provide a series of state
specific templates because state law differs dramatically on such issues
as the permissible methods of foreclosure, the availability and timing
of reinstatement or redemption, a requirement to proceed first (or perhaps
exclusively) against the collateral, and the availability of an action
for a deficiency. The author might provide a "Universal Template", which
would treat the law of real property consensual security more generally,
drawing examples from several states, a "California Template," and the
necessary California materials, to allow a California law professor to
focus on the unique and complicated California law governing real property
secured transactions, a New York template, a Texas template, and so on.
When completed, the variety of templates and underlying materials will
provide a law professor additional flexibility. Because electronic casebooks
can easily accommodate vast quantities of data, they do not suffer the
same length and volume constraints imposed upon conventional casebooks.
Accordingly, an electronic casebook can include many materials which the
student will never be asked to read without imposing anything beyond trivial
additional cost.
The professor may not only
reorganize or alter content, but also may customize to reflect a particular
educational philosophy. Those who prefer the pure casebooks of yore, which
contained only cases, can create such a casebook here. Those who prefer
lots of explanatory text, and fewer cases, or those who like to work with
lots of problems, can similarly reflect their preferences.
Moreover, even after the
professor customizes the book, the student can use the materials in the
book in different ways to suit an individual learning style or for purposes
of review, treating the book more like a hornbook (accessing and scrolling
through the Commentary library), or treating the book like a problem book
(accessing and scrolling through the Problem library). By using a standard
bookmark feature, a student can also quickly select specific commentaries,
problems, documents, cases or statutes for review.[5]
Customization prior to distribution
to students can be accomplished without sacrifice of the quality control
and peer review functions performed by traditional publishers and their
editorial advisory boards. As with existing electronic casebooks, the type
of electronic casebook proposed here, together with a program through which
the materials can be read and manipulated by professors and students, can
be stored on a compact disk (CD) distributed by a publisher.[6]
From this CD, the law professor can download a file containing the Detailed
Outline of Contents and also containing "library pocket parts," corresponding
to the digital libraries in the casebook, to which the professor can add
materials. The professor can then customize the outline, add materials
to the library pocket parts, and distribute the customized file to students
(either on floppy disk, by e-mail, or by posting to the faculty member's
web site). The student obtains the CD, pays the publisher to unlock the
desired materials in the CD, loads the customized file and the relevant
portion of the CD on the hard drive of her computer, and is ready to begin.
2. Links to external web sites
Most electronic casebooks
include a large number of hypertext links from one location in the book
to another, such as a link from a provision in a statute to a definition
located in another portion of the statute or a link from the question at
the end of a problem to a commentary, case or statute which will help the
student in developing an analysis. But it is now possible to supplement
these internal links with links to locations outside the book, on the World
Wide Web.[7] With these external links the
author can bring the legal materials more fully to life by connecting them
to information about the systems of which legal rules are but a part and
to the people who function in those systems.[8]
For example, in one current
work in progress on the subject of secured credit, the electronic casebook
links from a commentary on enforcement of judgment to the site of a firm
which offers asset search and related services. In the introduction to
promissory notes and mortgages, one finds a link to a site which provides
current mortgage rates, and loan qualification and mortgage payment calculators,
and a link to the site of a title company in Hawaii which describes its
escrow services. In discussing the Federal Trade Commission's rule restricting
non-purchase money, non-possessory security interests in household goods,
one finds a link to the site of the Federal Trade Commission. There are
also links from a discussion of possessory security interests to a site
discussing the history of pawnshops, from a discussion of self-help repossession
of automobiles to the site of a Michigan repossessor, and from a U.S. Supreme
Court case establishing the method of valuation of collateral in a Chapter
13 bankruptcy proceeding to the site of the Kelly Blue Book. In addition,
one may include a separate digital library in the electronic casebook (called
Links, for example) to provide links to generic web sites which are relevant
to a broader ranger of subject matter in the casebook. In a electronic
casebook on bankruptcy, for example, one might link to the web site of
the American Bankruptcy Institute which provides information and commentary
about current developments in bankruptcy.[9]
Moreover, many web sites
themselves offer links to other sites, which link to yet others, and so
on, providing the student with an almost endless string of references to
pursue any topic in further depth.
Authors of electronic casebooks
have yet to tap this unparalleled resource.[10]
The World Wide Web offers vast amounts of timely, pragmatic, and stimulating
information in text, graphics, pictures, video, and audio. Linkage to sites
on the World Wide Web broadens the student's view, beyond the narrow analytical
confines of traditional legal materials, to the stuff of real life. The
links literally and figuratively connect legal theory with the systems
in which the law operates.[11]
Enthusiasm about
links to web sites must nonetheless be tempered with realism about limits on student
time and endurance. Some students might ignore hypertext links to web sites,
particularly if they feel overwhelmed by the endless stream of links to
which the initial link can lead them. Others, inveterate web surfers, might
pursue the links for hours, possibly at the expense of more careful attention
to the assembled materials. Law professors using electronic casebooks with
links to external sites can compromise these extremes with careful direction.
They can emphasize (through assignments, testing, or otherwise) that the
initial links provide valuable additional insight and should be pursued
and can easily be pursued with the touch of a finger rather than a trip
into the stacks of the library. At the same time web surfers can be urged
to temper their valuable curiosity with attention to time management.
There is an additional concern.
By making access to initial and derivative references convenient and virtually
instantaneous, hypertext links might implicitly convey unintended messages
about the quality of information down the line. Accordingly, law professors
need to caution students about the unfiltered nature of the information
beyond the level of the judiciously chosen first link. They can also use
the opportunity to help students develop greater skill at assessing for
themselves the quality and usefulness of the information available to them.
3. News
An electronic casebook can
also include a link to "News," a location maintained by the author on the
author's personal web page. Much like a supplement to a traditional casebook,
the author can fill "News" with copies of, references to, or brief discussion
of new cases, new or amended statutes or regulations, and other relevant
developments. In addition, the author can use "News" to add new links to
external web sites. Students should be advised to regularly check "News",
just as they should check the pocket part of a code before looking at the
text of a statute in the main volume. If a book is adopted by a publisher,
students will be able to use an update file, pre-loaded by the publisher
on the CD which contains the book, to download the news into the copy of
the electronic casebook stored on the hard drive of the student's computer.
"News" thus keeps the book current between editions without the need for
publication of a supplement.
The news feature can also
be made reciprocal by including an electronic mail feature ("Contact Author,"
fpr example) in the electronic casebook. Whenever a reader, student or
professor, finds some news relevant to a topic under consideration, or
finds an error, or has a suggestion or other comment relating to the materials,
she can select "Contact Author," write her message (with attachments if
desired), and send it to the author immediately. After reading her mail,
the author in turn may post some or all of the contribution to "News" for
others to see.
By virtue of "News" and
"Contact Author" the book can become an active, ongoing collaborative learning
experience in which users throughout the country can participate.
Conclusion
I have described some new
ways of conceiving the structure of a casebook and its relationship to
the world beyond its covers. Electronic technology offers more than power
boosts. It creates exciting new options and opportunities. Used in ways
that do more than reflect perceptual preferences and add convenience, electronic
technology in service of legal and other education might even tempt those
now wedded to paper.
Through the use of any standard
web browser, you may explore the first draft of an electronic casebook
which implements many of the features described in this article. Simply
pursue this link. Your comments on this work would be most welcome. Please direct them
to GNeustadter@mailer.scu.edu
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Notes
1. Professor of Law, Santa Clara
University School of Law. Thanks to my colleagues June Carbone, David Friedman,
Al Hammond, and Patty Rauch for their comments and to my colleague Cynthia
Mertens for her collaboration on an electronic casebook.
2. A majority of students seem
to prefer reading text from paper. However, based on my personal experience
adapting to reading from a computer screen and based on the yearly increase
in the number of students using computer labs and laptop computers, I suspect
that a preference for reading text from paper is learned rather than innate.
Soon, most students, having grown up with computers, may have no preference
or may even prefer reading from a computer screen. I am unaware of any
empirical study of this question.
3. These tools include the ability
to download information to or from external data bases or files, cut and
paste, manipulate the appearance of text (size, font, color, etc.), search
on words or phrases, highlight, follow or create hypertext links, and open
and simultaneously view or use multiple windows of text.
4. Although this didn't stop Robin
Williams from instructing his students in the movie Dead Poets Society
to rip out pages from their poetry text.
5. Commentaries and problems should
be named (e.g. Commentary.Statute of Frauds; Problem.Mutual Mistake) rather
than numbered, for two reasons: to facilitate the ability to locate a particular
commentary or problem by subject, and to allow a professor to change the
order of presentation, or delete or add commentary or problems, without
the need to renumber.
6. In the alternative, one could
distribute floppy disks containing the electronic casebook to potential
users or post the book to a faculty web site. For a user to access
an electronic casebook which is posted to a web site, the user needs a
connection to the Internet and a program known as a browser (such as Netscape
Navigator or Microsoft Internet Explorer). The browser alone will allow
the user to read the casebook only if the casebook is written in a format
that the browser can read (currently the most common format is known as
"HTML"). If the casebook has been written with a program that uses a different
format, the user must obtain and install in its browser an appropriate
program, commonly referred to as a "plug in," that will allow the browser
to read the format in which the book is written and to perform such other
functions (e.g. downloading to a user's hard drive or manipulating data
in the book) as the plug in permits. Alternatively, the user may obtain
and install the program in which the book is written and instruct the browser
to use that program when the browser is pointed to the book.
To eliminate these
intermediate steps and to take advantage of the increasing popularity and
convenience of browsers, authors interested in posting an electronic casebook
to a web site should consider writing the casebook using HTML.
7. A small but growing number
of law professors are either directing or encouraging law students to examine
particular web sites or to surf the World Wide Web. The direction or encouragement
may come by mention in class, by supplementary written materials distributed
in class, or by links from a faculty member's personal web site. For some
examples of faculty web sites, and links from them to the World Wide Web,
visit JURIST: The Law Professors' Network, at the following address: http://jurist.law.pitt.edu/
8. Concerning a systems approach
to understanding the role and operation of law, see, e.g., Lynn
M. Lopucki, The Death of Liability, 106 Yale L.J. 1, 5 (1996).
9. Web sites to which one links
from the book may become obsolete or change addresses. One can solve this
problem by creating an invisible intermediate link on the author's own
web site which a research assistant can monitor and modify as necessary.
10. To help them locate and choose
additional web sites, and to force students to use a tool with which they
must become facile in the modern practice of law, a law professor might
assign to each student in her class the task of surfing the web and suggesting
five new web sites.
11. The professor adopting the
materials can add links to his or her own favorite web sites through the
customization process described earlier and the student user can also add
links to web sites.
© 1998 by Gary Neustadter. All rights reserved.
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The views expressed in this column are solely those of its author, and do not reflect those of JURIST, its Advisory Board, its staff or its host institutions.
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