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Dear Colleagues,
As we prepare to teach this fall, we, like many of you, know that we cannot rely on our tried and true methods of class preparation, given that everything has changed both inside the classroom (class zoom?) and outside. The murders of George Floyd, Breonna Taylor, Rayshard Brooks (and far too many others) and the country’s long overdue but full-throated reckoning with oppression and state violence calls upon each of us to do more than simply assign a few extra note cases to the problem of racism in the law school curriculum. This is an opportunity for us to re-evaluate—and transform—our approaches to the content and production of the law school curriculum. It is an ongoing, collective project—one that has the potential to transform legal education for the good by creating open-source casebooks that aim to make learning and teaching more inclusive, less alienating, and less expensive. One that we invite you to join.
We write for two reasons: first, to solicit your interest in participating in a workshop designed to facilitate these goals by bringing together law professors from across the law school curriculum, and second, to invite you to use, modify, remix, and share the free casebook materials we are developing at opencasebook. The workshop dates and details are TBD, but we anticipate hosting it, online if need be, sometime in March or April, 2021. If, at the end of this too-long email, you feel inspired to join us, please email Nicholas Newman at nnewman@scu.edu. In addition to noting your interest, we ask that you note the subjects you teach.
How we got here: In April, 2020, as Covid-19 led to the cancellation of summer jobs for many of our students, we took the opportunity to employ a team of eleven students to address some of the shortcomings that have troubled us in the casebook we use to teach Criminal Law. Key among the shortcomings is its treatment of topics pertaining to sex and race, via both notes and cases. (e.g. The book uses rape as a standard hypothetical scenario for criminal law topics as diverse as accomplice liability and action by omission; it raises issues of mental health, gender, and sexual orientation without meaningful context to situate how these issues have been treated by the criminal legal system, how they reflect social norms, how they have changed over time, etc.). Most damning, though, is the absence of any meaningful discussion of the role of race in the criminal legal system. It makes little sense teach the nostrums we all learned in law school–e.g. that “strict liability crimes are disfavored in the criminal law” in an era where drug crimes are almost entirely strict liability crimes that serve to funnel so many young Black men (and other people of color) into the system. Then there was the book’s failure to acknowledge, let alone grapple with ongoing discussions of alternatives to policing, alternatives to criminalization, and critical thinking about why we deal with social problems via the criminal legal system. Were it not for the power of path-dependency (and our desire to keep our students busy), we might have done well to simply switch to Cynthia Lee and Angela Harris’ excellent Criminal Law text.
The work: We began work in May, enlisting the help of our students in identifying problem areas in the materials we typically covered. Working in small teams, students flagged the cases and notes they thought were, on balance, more harm than they were worth, and after meeting with us, suggested appropriate responses: replace the case with a better one; skip the material; assign it and use it as a teaching lesson (perhaps also identifying background readings we might use whether in preparing class and/or for students to read). The aim was not to sanitize criminal law; it is by definition a gritty, challenging subject. Instead, we sought to be thoughtful about when and how we expose students to difficult material, aiming to give them the context and the analytical tools needed to process it.
As the scope of our project became clear, we determined that it would be easier to create a new casebook than to fix our old one: there were too many holes and not enough cheese. But along the way we have discovered and embraced the many opportunities this approach presents. First and foremost, we have engaged in deep learning with and from our students. They are peeking behind the curtain to see how knowledge is produced and culture is transmitted. They are seeing that the canon is chosen, not discovered. They are gaining valuable research and writing skills, while at the same time becoming empowered in their own education. The entire team is happy that the work we have done will be available to everyone free of charge (though we are, of course, paying our students for their work). But, more than just dollars and cents, embracing this model reinforces what law (and academia) purport to be about: a collective, collaborative, work-in-progress. “Our” casebook is yours—and anyone’s changes will be available to anyone else. It is not just law as code, to quote one of our former professors Larry Lessig—it is “casebook as coding project.”
The result: Our work to date is found in two online casebooks, available under our names on the Harvard Open-casebook system. In addition to saving students the $200+ expense of having to buy a casebook, going forward this format will enable a communal project, permitting collaboration with colleagues from around the globe. The first of our casebooks, The Ball/Oberman Criminal Law Casebook, largely tracks the structure of Dressler’s original Criminal law casebook (which itself largely tracked the structure of Kadish and Schulhofer’s Criminal Law Casebook), as supplemented by Jeannie Suk and Tim Wu’s 2017 Criminal Law open source casebooks.* This casebook is in beta–we are revising it actively until the end of the month. But the beauty of the open casebook system is that we will continue to edit and revise the materials as we use them this semester. If you would like more information, please contact David Ball, Michelle Oberman, or Mike Flynn.
Our second casebook, Current Challenges in Criminal Law, can be used independently from the first casebook. It features links to audio and video content, keyed to the topics in the criminal law casebook. For example, the session on alternatives to incarceration centers on Chenjerai Kumanyika’s amazing interview with Ruth Wilson Gilmore. Our plan is to pair our weekly classes with required small-group discussions based on the supplemental material. These sessions will require students to reflect on the points of intersection linking the material covered in our casebook and the chosen issue or problem, as well as to consider the law’s role in relation to the issue.
You are welcome to use any of our materials; they are free and we hope you will find them useful. But our real hope reaches far beyond this narrow project and this particular moment in time. Instead, our aim is to foster a community of like-minded academics, eager to build open-source materials designed to minimize the harms created by legal education’s historical tendency to ignore, if not enshrine, our collective biases.
Spring 2021 Workshop: The planned workshop for Spring 2021 will feature professors and students from a host of institutions who share our commitment to collaborating on the work of making legal education more inclusive in all senses of the word. Depending upon interest, we might have several concurrent sessions, organized by teaching subjects, so that professors and students interested in rethinking the torts or property curriculum can begin mapping out their work, going forward.
Thank you for reading through this very long summary of our project. We are eager to hear your feedback, whether on our materials, or on the planned workshop. If you are interested in participating, please email Nicholas Newman at nnewman@scu.edu. In addition to noting your interest, we ask that you note the subjects you teach. Once we’ve collected the names of folks who are interested in participating, we will circulate an email with some possible dates, and begin the planning process.
Until then, we remain yours in collaborative solidarity,
Michelle, David, and Mike
*We are deeply indebted to the following individuals, among others, whose work helped constitute the foundation upon which we’ve built: Joshua Dressler; Stephen Garvey; Cynthia Lee; Angela Harris; Jeannie Suk; Tim Wu; Amna Akbar, Alice Ristroph, Paul Butler, Allegra McLeod, Jocelyn Simonson. Thanks to Karen Tani for telling us about the Open Casebook platform! And, of course, our students and co-authors are the driving force behind the entire project: Cydney Chilimidos; Miriam Contreras; Jenai Howard; Christina Iriart; Angela Madrigal; Leah Mesfin; Zachary Nemirovsky; Nicholas Newman; Nathanial Perez; Michael Pons; and Philip Yin
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