Why Readings in Law School are Unnecessarily Long, Dense and Useless (and what to do about it!)
This post explains why there is so much required reading in law school and offers practical advice for being more efficient and strategic with your reading.
If you are studying law you have no doubt realised that one of the hardest part is keeping on top of the seemingly endless pile of assigned readings. The vast amount of content each course produces makes most law students feel overwhelmed and highly stressed. Even if you complete your readings most students never feel like they understand what they read. It is easy to think that you are simply not smart enough, and that the other students in your class are keeping on top of things. I can assure you that everyone studying law is in the same sinking boat. I have tutored many HD average students who express the same amount of uncertainty and anxiety as the students who are struggling to pass. And sitting over a coffee in the law school staff room I’ve heard many law academics express the same sentiment. Let me explain to you why I think most of the assigned readings in law are long, dense, largely useless, and rarely understood by most students and staff. And more importantly, let me offer some advice for how to approach your readings and some practical tips to make law school a little easier.
Something I’ve heard from many entering legal practice for the first time is the realisation that most of what is taught in law school is utterly pointless and has little relevance to the practice of law or an understanding of how the legal system functions. Let me give you an example. Have you ever wondered why a text book chapter or law lecture even bothers to explain to you in great and painful detail a case that has been overruled? I’ll tell you. Because that section of the textbook or lecture had already been written, and for some reason legal academics seem only capable of adding and not culling material. Moreover, a lecture or seminar typically requires an enormous amount of content. Not because anyone needs to know any of it – but simply because there is a fixed amount of time dedicated to lectures or seminars, and it needs to be filled. Each year a handful of new cases are added to the curriculum, and none are removed. Over time text books and law courses become dense thickets of pointless law.
The enormity of assigned readings means that it is practically impossible for law students to understand a significant amount of course content. I honestly didn’t feel like I had expertise in any legal subject until after teaching it a minimum of five years. Only after teaching the same seminar many times a day for several years in a row do cases and concepts start to sink in. As a lecturer you have time to read multiple text book chapters on the same content. Having taught so many subjects over a decade has meant I have read probably close to fifty different law textbooks. They were all bad. I never once read a textbook that clarified a principle of law or adopted a writing style that was compelling or even clear. Let me explain why I think the writing style and content of legal writing is unnecessarily complicated with a story from my days lecturing law.
I used to give two lectures on mortgages, both lasting almost two hours. Painful, I know. And not only for students let me tell you. I now can teach one of my private students all of that content in half an hour tops. And I can teach it in a very simple and to-the-point manner because at its heart most of law is actually simple. It just takes years of studying and teaching the same area of law to be able to decipher what judges and academics are actually writing. Once you can do this you can boil the law down to its core components and ignore the rest. Moreover, instead of standing at the front of the room banging on for hours I can teach a small amount of law and then provide a practical activity so that a student can put theory into practice. Teaching one-on-one in this way allows me to quickly see where a student is not understanding something, and I can repackage that material in as many forms it takes until it sinks in. In law school that is not possible. Textbooks are written in large slabs of text with few if any practical exercises, and so those students who actually do the readings retain next to nothing. Likewise, sitting in a lecture or seminar and listening to someone blab on in a monotone is the worst way possible to learn anything. Imagine if I tried to teach you how to drive a car by giving you a lecture or getting you to read a textbook chapter. It is absurd.
There is absolutely no reason why any law student needs to know about a case in the 1990s that was overruled in the 2010s and has never been thought about since outside of law school. But if your lecturer has been at this long enough they are simply updating their slides from the 1990s. I only had twelve years lecturing, but the original PowerPoint slides I put together for my first lecturers stayed with me, with much of the material remaining unchanged. Often a lecture would be 10 minutes short, so when a new case came along I’d just add it after the old one. I know that is what most other lecturers do too, if they are even aware of the new case. And having read multiple textbook chapters on the same content, this method is ubiquitous in law textbooks.
The result is law students have a pile of readings each week that they could hardly jump over, and at least half of it is as useful as a screen door on a submarine. Not only this, but law lecturers are boring themselves to tears grinding through what they know is irrelevant material just to make it through another class. Everyone loses. So here is my first tip for law students concerning your readings – most of your assigned readings need not be read. Moreover, I think it is impossible for law students to actually complete their assigned readings, answer seminar questions, keep on top of assessment tasks, and have time to breath. There is no way to do it, and you should not try. Instead, you must be strategic in what you read. If you are assigned tutorial or seminar questions, especially problem questions, read these before you look at a textbook. Your reading then becomes structured as you are looking for answers to questions and can consequently only read the relevant passages and ignore the rest. There is never any need to read a case excerpt, or a history of a particular legal principle. In fact, for the reasons that follow, I would advise against reading any cases in most circumstances.
The impractical nonsense taught in law school is so frequently couched in the most dense and difficult language that you essentially need to learn a new language to understand it. As the wonderfully named Felix Cohen in his essay ‘Transcendental Nonsense and the Functional Approach’ pointed out almost a hundred years ago, law adopts the language of ‘transcendental nonsense’ i.e. an abstract an almost indecipherable series of concepts that have no connection to reality or common sense. It is often easier to read the hieroglyphics on an ancient Egyptian tomb than a High Court case. At least we all know what the symbol for a bird stands for. The same cannot be said for the in personam exception to indefeasibility, or factual causation, or an invitation to treat, or mens rae, or a constructive trust, or a chose in possession, and I could go on and on and on. In fact, it is so rare for a legal concept to be expressed in a clear and comprehensible manner that I can hardly think of one. Legislation too is so awfully drafted that I often have to read a single section multiple times, then read a textbook section, then read a case applying the section, then re-read the section again, and I’m still scratching my head. And I have a PhD in law. How are law students supposed to handle this?
Now judges or law academics might read this and think, yes, but law is complicated. What I’m telling you is that it doesn’t have to be. Instead, judges, politicians and law academics intentionally write in a dense and obscure manner to make their profession and therefore themselves appear more sophisticated and obtain the consequential status. And perhaps more importantly, the legal profession as a whole does this so that the public cannot understand the law and therefore cannot criticise it. This allows a monopoly on information and the subsequent inflated prices of litigation. It is the same reason why Catholic church services were conducted in Latin. And while even the conservative institutions of Catholicism have progressed, law is still largely medieval.
I know this because I used to do the same thing. To make my own work seem on par with the law journal articles I read I adopted the same terrible writing style. Simple ideas like the ones I am expressing in this blog post were couched in the language of Lacanian psychoanalysis or a Zizekian critique of legal ideology. Everyone is ultimately chasing status and the security that comes with it. Law academics are no different, and get themselves into little clicks where only half a dozen people living can understand the papers they write. And because there is no body of literature written for an audience of law students they are assigned law journal articles like mine as required readings and have no capacity to understand what they are reading. Few do.
So law students are impaled by four sources of readings that are more or less impossible to read – case law, legislation, legal textbooks, and law journal articles. The results are obvious. Students either waste countless hours squinting at screens or abandon their readings. In my view, often the latter is the best option. And I speak as a law student who often did no readings and still got HDs, and a lecturer who assigned text book chapters that I myself also never read. Even me, the lecturer, rarely read a case. So many times I have tried to clarify an area of law by reading a case and ended up more confused. Judges are arguably the worst writers in the English language. So here is my second tip for law students – don’t read cases. The only exception to this rule would be if you are assigned an assignment on a specific case. And even then, you are probably still better off reading a case summary and a journal article on the case than the actual case. Other than that, you can not only study law, but teach it, without bothering trying to understand case law. To find case summaries, use Lexis Advance, search for a case, and click on the words ‘CaseBase’ in blue writing under the case citation. Lexis Advance summarises the key legal issues and the conclusion of the court on each issue in the section ‘Catchwords & Digest.’ It is rare for you to need to know more than what is contained in a case summary. Remember, the most important aspect of a case is not its facts, but the principle of law that was applied to decide the case. This is called the ‘ratio.’ If you have not been taught how to read a case summary and identify the ratio it is likely you have not been taught properly and you might need a tutoring session to learn how to do this properly. Using tools like Halsbury’s Laws of Australia, getting case summaries from Lexis Advance, and reading your seminar questions as a guide to filtering what is worth reading and what is worth skipping will go a long way to cut down that pile of reading, and give your reading focus and structure to give you a better chance to retain what you read.
If you realise that most of your readings are neither assessed nor practically relevant you might feel less anxious and stressed when you don’t get to the bottom of that pile of readings. Shifting from aimless reading to strategic reading by looking at your problem questions before you read will allow you to be far more efficient in what you read. Moreover, by making good notes as you read the sections of your text book your course convenor has deemed important enough to set a problem question on will ensure you actually retain what you read.