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In this monthly column, law professors comment on the many academic opportunities and challenges presented by Web technology.

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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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