Law school lite - law students depending on law outlines and summaries

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: