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Except as Provided in the Syllabus, Students Shall Read the Statutory Section (i) Before Coming to Class or (ii) In Class Unless Provided Otherwise

posted by Bob Lawless

VisilawThe legal side of what we do requires comprehending dense statutory texts. Law students, however, arrive in our courses after a first year of law school heavily devoted to case law. When I was teaching corporate law, a student once came up after class with a question about  preparing for the final exam. She earnestly explained that she understood "the law" -- it was just the statute she could not understand. Could I recommend a book that explained the statute? The law apparently was what was in the cases in the textbook, with the statute being some sort of aid to understanding the law. No wonder they put those statutes in books called statutory supplements!

In reaction to what I see as an overemphasis on court decisions in many other law school courses, my courses unashamedly emphasize the statutes we cover. For example, is a spouse is an "insider" under the Bankruptcy Code? Here is a hint for my students this upcoming semester -- the answer does not depend on your gut instinct: "relative" is a defined term. Thus, I was initially appalled on Friday when I got an advertisement from Aspen, a law textbook publisher (including of my own textbook on empirical methods in law), asking if I felt guilty about the amount of statutory material I assigned. If so, the new LoPucki and Warren statutory supplement for Bankruptcy Law and Article 9 (of the Uniform Commercial Code) was now available as a VisiLaw marked version that would make "inaccessible statutes accessible." No, I did not feel guilty about assigning too much statutory material -- if anything I wanted to assign more. This new development just seemed like another sign of the pending zombie apocalypse.

My initial reaction, however, was more "ready, fire, aim" than considered judgment. As I learned more about the product, I've decided it is worth a try. At the least, I wanted to write something here to get reactions from practitioners.

UCLA law professor Lynn LoPucki is the driving force behind the VisiLaw concept. The picture above provides an example of how he has marked up a section of the Bankruptcy Code. (Clicking on the picture will bring up a larger and clearer image.) Different marks and typefacing set off key parts of the statute, allowing a reader to find the operative verbs as well as conjunctions and exceptions. The mark-up does seem like it would help students learn how to deal with dense statutory text and not just be an unnecessary crutch. LoPucki has tried VisiLaw with his own students to rave reviews.

What if law students only had contact with VisiLaw? When they went into practice, would they be capable of diving into new statutes and other legal texts? Among other things, I remember as a young lawyer having to master statutes as diverse as the False Claims Act and the Ship Mortgage Act. Do law firms want students who have been trained only on Visilaw?

LoPuck's answer to these concerns, and I am loosely paraphrasing, was "students will be trained only on VisiLaw about the same time pigs learn to fly." In a very reasoned e-mail, he pointed out that many law school courses probably underemphasize statutory reading skills already. This underemphasis is not likely to change. The profession should be so lucky that we have a problem like the widespread adoption of teaching innovations like VisiLaw to help students learn how to work with statutes. Whatever problems I might imagine in theory are not likely concerns that will happen in the real world.

This semester, I am going to tell my students that they may want to consider using the VisiLaw Marked Version of the statutory supplement. My assessment of its usefulness will be whether it is helping students develop the long-term intellectual skills they will need as a lawyer. As I wrote above, I would be especially interested in views from outside the academy about the usefulness of products like VisiLaw in legal education.

Comments

Aspen's warehouse date for the VisiLaw Marked Edition is August 8, 2012. The same statutes appear in both versions, making it possible for students to use whichever version they prefer.

Holy cow. What a great idea. {glares at Florida Statutes angrily.}

As a practitioner who deals with the UCC all the time and the Code often enough, I think it is a great idea. True, real lawyers don't read statutes that way. But this is not a problem: rookies do things differently. Think of the way that a responsible 16-year-old drives. Or think, say, of the structured office memo that law students are taught in law school. Real lawyers seldom write that way, but 95% of the time, a rookie will do better with the artificial structure.

My objection is not with the method, but with the material. The Code is a moderately gooey statute, embedded in institutional and business arrangements. Judges often read its more nonsensical parts in nonsensical ways, to produce a sensible result. Rookies--like any other pupating organism--should live in a safe cocoon, where the statutes say what they mean, and the judges agree with this approach. They should learn to read a statute before they learn cynicism about statutory construction. I think that the LoPucki approach would be great for UCC 9, and super-fantastic for UCC 4A or 8. Bankruptcy law is not the best read-a-statute course in the curriculum.

Mr. Scrooge, those are very useful comments. Can I ask why you think bankruptcy law is not the "best read-a-statute course in the curriculum?"

I have never been a law professor, but I have been a a law student and a lawyer. Since my first few years of practice, I have thought that the following should be preached to law students on a fairly regular basis: "We emphasize case law heavily within these walls, and it is possible to get the impression that cases are the law and statutes are generally so confusing as to be of limited relevance. In real life, however, if you have taken the time to read the statute at issue carefully, you will be well ahead of the game far more often than not." That is a slightly different issue from making statutes more readable, but it is related. In statute-reading as in a sporting event played in bad weather, the conditions are the same for everybody.

Ken, why not be more ambitious and tell law schools not to heavily emphasize cases so much? Law schools rightfully get a lot of stick for not doing more relevant and practical training. Without getting into the whole debate about whether there should be more clinical and general "hands on" simulation training, one thing law schools should be doing is teaching classes that convey the legal doctrines and intellectual skills lawyers need to know. For example, I find students who are coming out of a first-year contracts course with only cursory exposure (at best) to the UCC rules on sales of goods or the many statutes on warranties.

I don't think that bankruptcy is a good "read-the-statute" course because there is a tremendous amount of unavoidable institutional detail in bankruptcy law. The purpose of teaching bankruptcy is to teach bankruptcy, not to teach statutory reading. Statutory reading skills might be an incidental benefit of a good bankruptcy course, but they're not what the course is about.

However, let's say you were teaching a course on the Negotiable Instruments Law. What possible purpose is there in teaching such a course BUT to teach statutory reading skills? The NIL is completely free of institutional impedimentia: it refers to little but itself. It is drafted in a perfect pedagogical style: unclear to the casual reader, but depressingly self-consistent and formalistic. Teaching it to a student is much like administering old-fashioned placebo to a patient: after taking it, by God, they know they've been physicked! Gilmore taught the NIL even after the UCC was adopted.

Not that I'd teach the NIL today--modern high-resolution statutes are drafted differently. However, the spiritual descendents of the NIL are available: UCC 4A, Revised 8, and Revised 9 (exclusive of Part 6).

Bob, do you tell the students that they must read the statutes or do you go over the statutes in detail in class, parsing through their meaning and how courts apply them?

For my commercial law classes, I use books that emphasize a problem approach (Warren & Westbrook for Bankruptcy, LoPucki & Warren for Secured Transactions). I teach almost exclusively through the problems. I expect students to read the statutes before the class and have tried to apply them to the problems we are discussing. In fact, my syllabus expressly states that students will find it tough to keep up if they have not read the statutes before coming to class, and I emphasize the point on the first day of class.

I saw a prior version of this for Article 9 a year or so ago. I think the real benefit of VisiLaw is that it provides repeated examples to the students of how to mark up statutes to parse them. I think the goal is not necessarily to ease the students burden in understanding these particular statutes, but to teach them a system that they can apply themselves to parse statutes. People with experience with statutes know to do things such as watch for conjunctions, look out for exceptions, check cross-references, etc. I would expect that after a semester of using VisiLaw students would want to mark-up unfamiliar statutes they encounter in practice using many of the same tools to ease understanding.

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