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The Law Teacher

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The case method of teaching law

a
J.C. Smith
a
Head of the Department of Law , University of Nottingham
Published online: 10 Sep 2010.

To cite this article: J.C. Smith (1967) The case method of teaching law, The Law Teacher, 1:2, 17-23, DOI:
10.1080/03069400.1967.9992262

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 THE CASE METHOD OF TEACHING LAW
by
J . C . SMITH
A good deal has been written on the case method of teaching law in English as well as American
periodicals. Most of this writing is by American or Canadian teachers, for the case method has
been very little used in England. I take it that what you wish me to do is to describe my own
experiences in attempting to teach by that method; and that is what I intend to do.
So that I would have something rather more objective to give you than my own personal impres-
sions, I recently prepared a questionnaire and circulated it to all the undergraduates in Nottingham
University (1) who have been or are being taught by the case method. In order to encourage com-
plete frankness in answering, the forms were anonymous and questions could be answered by putting
a ring round a number opposite the appropriate answer. Approximately 70% of the students com-
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pleted and returned the questionnaire. A space was provided for additional comments and 74% of the
students who answered made some additional comment of their own. The questionnaire distinguished
between LL.B. students, who devote the whole of their three years in the University to Law, and
B.A. students who read Law as one of three equal courses for Part I of their Final Examination,
which they take at the end of the second year; their third year being devoted to a single subject,
which sometimes is Law but more often is Economics, Applied Social Science, or some other
social science or arts subject.
I shall make a number of references to the answers to the questionnaire in the course of my
lecture.
In 1952 I had the good fortune to be granted leave of absence by the University of Nottingham for
a year to go to the Harvard Law School on a Commonwealth Fund Fellowship. During my year at
Harvard I attended a number of complete courses - on Contracts, Trusts and Criminal Law - and
I listened occasionally to classes taken in many other subjects. All the teachers whom I saw in
action were teaching by the case-method; but, in fact, their methods of teaching varied widely. On
the one hand, there was the professor whose contribution consisted almost exclusively in asking
questions. He hardly ever made any positive assertion but, with great skill, he would extract from
the class the nature of the problem, the several ways of looking at it, the pros and cons of the
various solutions - and leave it to his pupils to sort the matter out as best they could. At the other
extreme was the professor who would fire out a few questions at the beginning of the hour and then,
being generally dissatisfied with the answers he received, would lecture for ten minutes or quarter
of an hour, before asking a few more questions which would lead him to another short lecture, and
so on.
Though the methods diverged greatly they had certain common features. In each case, the student
had the materials which were under discussion in front of him and he had, almost invariably, read
them and made notes on them before the class. In no case did the student spend the hour feverishly
writing to get down all "the notes" in the way which is all too common in lecture courses. The amount
of writing done was small, but the amount of thinking done appeared to be large. Generally the whole
class was concentrating on the problem and trying to follow the discussion, if not participating in it.
When I came back to Nottingham, I reviewed what I was doing here in the light of the experience
I had gained in America. In particular, I asked myself what useful purpose my lecture courses were
serving.
In some of the courses which I then taught there was, in my view, no adequate text book atihat
time and, in these cases, I had no doubt that the lectures supplied the students with an essential
framework on which to build by their own reading of cases and articles and discussion in tutorial
classes.
In the law of contract, however, the student had at his disposal a first class text book which he
was required to buy and expected to read. What did the lecture course give him that he could not get
by an intelligent reading of that book? In a course of some 48 lectures it was not possible to cover
the same ground in as much detail and with so great a wealth of illustration. Unless one were a
genius as a teacher, it was highly improbable that one could expound the law with greater lucidity
than the very experienced authors of that book had achieved. One could, of course, give a different
angle on the problems here and there; but in many cases the text book already gave the student the
various views on controversial matters. One could examine a few of the cases in greater detail and
- 17 -
 encourage the student to follow them up in the law reports and the articles in legal periodicals. But,
inevitably, the greater part of the lecture course consisted in going over ground already adequately
covered in the text book.
What in fact happened was that the majority of the students conscientiously attended the lectures,
wrote copious and more or less accurate notes, learned them off by heart and regurgitated them in
the examination. The more comprehensive the lecture course, the less the intellectual effort
required of the student. I suppose this process did the student some good. He learned a lot of law;
but the permanent value of such learning is questionable - we all know how quickly the actual
detailed rules of law are forgotten. Would it not have done the student more good if he had devoted
the time taken up by the lecture course to more intensive study of the text book and law reports?
It is fair to say, of course, that students themselves generally believe the lecture is very
valuable to them. This has been brought home to me very forcibly in the last two years. I have been
giving a course of lectures on criminal law in another unviersity where the students are recom-
mended by their tutors to read Smith and Hogan, Criminal Law. I have found it necessary for various
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reasons to give lectures of the conventional type in this university and it has proved to be very
difficult for me to break away from the actual words of the text book. When you have given some
thought to the best way in which to frame a legal proposition and reached a conclusion, it is very
difficult to put that proposition in any other way, because you are no longer putting it in what you
believe to be the best way. It becomes embarrassing to lecture when you realise you are merely
repeating either exactly or less well what is already written down for the student to read. I find it a
relief to come to some area where there is á recent development - indeed, I am almost glad to come
to a point where there is a mistake in the book - so that I can at least say something new. Lectures
in the university in question are voluntary; but the lecture room to my surprise, remains full
throughout the course. I have asked some of the undergraduates why they come, when 80-90% of
what I say is already written down in the text book, and have received no very convincing explan-
ation; but come they do. They think they get something out of it, but I do not subscribe to the view
that students necessarily know what is good for them.
It was primarily my doubts about the utility of my lectures in contract that led to give serious
thought to the possibility of having a go at the case method. The first thing, of course, was to have
a casebook. It was generally believed at that time that there would be no market for a casebook
designed for teaching by the case method and at least one publisher was very firmly of that view.
My colleague, J.A. C. Thomas, and I resolved, therefore, to make our own. We received great
encouragement from Professor Street and every assistance from the Registrar of the University,
so we had our book typed on stencils, duplicated and bound. The university sold it to the under-
graduates at £2 a copy which, in a couple of years met the cost of producing it. Then, as a result
of the initiative of Mr. Peter Allsop, Sweet and Maxwell invited us to allow them to publish it, an
invitation which we accepted with alacrity; and so the printed first edition of Smith and Thomas
appeared in 1957.
I began my experiment in teaching by the case method, then, in 1954, and have continued to use
this method in the contract course ever since. Other courses have, from time to time, been taught
in the same way by my colleagues - e.g. Tort, Conflict of Laws and Family Law. I have no doubt
that our notions of the use of case method are just as divers e a s those which I saw in operation at
Harvard and I am going to content myself with describing how I operate.
Contract is taught in the first year. All candidates are urged to read Atiyah's Introduction to the
Law of Contract before they come here and most of them do so. I give one or two introductory
lectures and we then start on the casebook. Before every class, the student is required to read a
number of pages of the book. I ask them generally to keep 10 pages ahead, though it is unusual for
me to cover as much as ten pages in an hour. When we meet, I will call upon a student, by name,
to state the facts of the case. His statement will probably call for some supplementary questions
to clarify or emphasise some aspect of the problem. I will then proceed to put further questions.
The nature of these questions depends, to some extent, on where we are in the course. Since
Contract is taught in the first year, the students are fresh to the law and my questions at the begin-
ning may relate to very elementary matters; what remedy was the plaintiff seeking? what arguments
did he advance? what were the defendant's arguments? who won? what was the answer accepted by
the court to the arguments of the plaintiff or the defendant as the case may be? Compare this case
with the case of A. v. B. which was decided differently. A. v. B. may be a case set out earlier in
the book or summarise"d in a note, or discussed in the judgment in the case. Why was the result in
A. v. B. different? How would such and such a hypothetical case be decided? What is the principle
- - 18 -
 that the court is applying in cases of this kind? Is it a sound principle? - does it produce a result
which is as fair as possible to the persons involved? By the time one has asked a few questions
about a case there are usually several members of the class ready to chip in with contributions of
their own. Thus a discussion will be engendered, more or less lively, depending on the mood of
the class, the mood of the lecturer and the nature of the subject matter.
As the year goes on I vary my approach. I may introduce a series of cases by posing a hypo-
thetical problem. 'Suppose that I enter into a contract with you to build the Q5 for £10m. Suppose
that a week later and before I have done anything under the contract, you decide that you have made
a mistake, that you will not need the Q5 after all and, in breach of contract, you cancel the order.
May I continue to build the ship and call upon you to pay the contract price when I tender it to you?"
The answer will of course be based upon White & Carter Councils v. McGregor [1962] A.C. 413
and so we will be launched into a discussion of that and related cases. Or I may produce a form of
contract with an exceptions clause which we will discuss, in relation to hypothetical problems, in
the light of the cases we have in front of us.
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The availability of the materials in front of each student, in my opinion, is essential. I make
constant use of the 'line marker" provided in the casebook to refer the class to particular passages.
"If your understanding of the case is correct} how do you explain what the judge says at page 333,
line 22? " The students too will refer me and the class to portions of the judgment which support the
view they are advancing, or which they find difficult to understand.
Lecturing in a case method course
I do not dispense with lecturing altogether.
1. When the course is under way, it is my practice to sum up, at the beginning of every hour,
the main points which have emerged in the chapter under discussion and sometimes to introduce
the topic next to be discussed. This in effect is a short and very informal lecture of up to ten
minutes. Something of this sort, in my opinion, is essential if the students are to keep the main
principles in view and to relate the cases together. The students' comments in answering my
questionnaire show that they attach importance to this and, incidentally, suggest that I am not so
successful as I sometimes suppose in achieving the ends at which I am aiming in these short
lectures.
2. In connection with certain topics I find a rather more elaborate preliminary lecture is
desirable. Before grappling with the Cundy v. Lindsay (1878) 3 App. Cas. 459, Phillips v. Brooks
[1919] 2 K.B. 243 line of cases, I discuss in general terms the problems arising from the opera-
tions of the rogue who gets possession of goods from their owner by false pretences or a trick and
sells them to a bona-fide purchaser, explaining the distinction between a void and a voidable trans-
action. Then we go through the cases in search of the principles and consider some hypothetical
problems.
At first progress is very slow indeed. There is a great deal to be explained. When you are
lecturing, you can single out the particular aspect of the case which you wish to use to illustrate
the present point and ignore the rest; but in the case method you have to look at the whole case, at
least so far as it appears in the report. If then, the first cases are concerned, as in Smith and
Thomas they are, with specific performance, the nature of the remedy may require explanation -
e.g., that it is a discretionary remedy, so that its refusal does not necessarily mean that there is
not a contract enforceable by an action for damages. The very fact that so many problems do arise
shows how difficult it is for the first year student who is sent off to read cases in the library on
his own with no one to check on his understanding of them.
The course does not fall into the same neat and tidy compartments as a lecture course. By the
time my students get to the chapter on consideration - which, you may be startled to know, is not
until the beginning of the second term - they already have a good grasp - or so I like to believe, -
of the essential nature of the doctrine. Before they get to the chapter particularly concerned with
exceptions clauses, they are already familiar with their nature, the kind of problems to which they
give rise and the general attitude of the courts to them. Before they get to frustration, they at
least know what frustration is, and have seen some examples of it - the case of the deserting crew,
. the second mate dying on the voyage, the singer with the sore throat, and so on. You have to look
at the case in the light of the whole law, not in the light of a bit of it. Thus I expect my students to
study their text book on such subjects as the Statute of Frauds, specific performance and rectifi-
cation in the first few weeks of the course because they are essential to an understanding of the
-19-
 earlier cases. Nor can you confine yourself to Contract. Many of the cases in Smith and Thomas
are of course actions in tort which raise issues of contract. Many are actions in negligence - others
are actions in conversion, deceit and so on. The student's understanding would necessarily be
incomplete if he did not grasp at least the fundamentals of those torts. This makes life more difficult
for teachers and taught; but real-life problems do not fall neatly into pigeon holes and it is as well
that this should be appreciated from an early stage.
The course does not proceed at so uniform a pace as a lecture course. It tends to go very slowly
at first and gradually to speed up. Though it does go faster at the end of the year the case method
is, taken as a whole, very slow. I never succeed, nor indeed, do I try, to go through the whole of
Smith and Thomas in class - though I take the class for 3 hours a week - a total of 72 hours of class
work. To go at such a pace as to cover the whole course would defeat the object of the exercise by
requiring discussion to be suppressed just when it was becoming interesting. This means that the
student has to be left to study certain aspects of the course by himself, reading a text book and case
book together. These aspects are usually related to a tutorial class or an essay. Nevertheless, it
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is only fair to say that experience does show that the portions of the course not covered in class are
less well known than those which are so covered. For some years I did not deal with Damages in
class and it was then not unknown for the mention of Hadley v. Baxendale (1854) 9 Exch. 341 to a
student in his third year to produce no reaction. I adhere however to the view that a university
student ought to be capable of working on his own and that we must treat him as if he were so
capable.
We teach the law of contract to those B.A. students who are reading Law as one of three equal
subjects for Part I of their degree examination. For some years I taught these students and the
LL.B. students together in one class. At first the class had 40 to 50 members. In a few years it
grew to about 70 and I came to the conclusion that it was inconveniently large. We divided the class
into two, one of my colleagues taking the B.A. students while I continued to take the LL.B. course.
The numbers in my class are now between 35 and 40. I would think that the ideal number is about
25. This is big enough for a fair number of ideas to be forthcoming but small enough for everyone
to be involved in the discussion at least once a week and most of them more often. As the class
gets bigger it becomes more and more difficult to bring everyone in and the value of the course
diminishes. Of course the Americans do handle much larger classes - 150 or more - but in my
experience, when the class gets over 50 it is easy to lose the interest of a section of the students.
It is our general practice to have tutorial classes consisting of five students in each subject
once a fortnight. It was thought that the case method would fulfil some of the functions of the tutorial
and, accordingly, we cut down the number to three per term. The main object'of the tutorials in
the case method course was to discuss the essays in the law of contract which the students had
written and which had been previously marked by the tutor. The need for tutorials was one of the
matters on which I sounded student opinion in my recent questionnaire. 15% of students thought that
the case method does away with the need for tutorials completely; 41% thought that it does away
with the need partly; but 44% thought it did not diminish the need for tutorials at all. Perhaps
surprisingly, it was the B.A. students who felt the greater need for tutorials.
The case method is harder work for the teacher. Once one has prepared a comprehensive set of
lecture notes, it is relatively easy to keep it up to date (though the Law Commission may be chang-
ing all that) and, in subsequent years, a quick reading of notes is often a sufficient preparation.
When teaching by the case method, I still find it necessary to read the cases and other materials
that I am going to discuss very carefully indeed before the class even though I have read them many
times before. Failure to do so may well result in a student raising a point arising out of some
sentence in the judgment which you have forgotten and your apparent unfamiliarity with the case will
be embarrassingly .revealed for all to see. But it is in the actual class room rather than in prepar-
ation, that the major difference occurs. The course of the lecture is pre-determined. The lecturer
is in exclusive control. He covers exactly what he wants to cover and omits exactly what he wants to
omit. He goes at his own pace. But with a good class, the course of a case method discussion is a
great deal less predictable. You may go in, intending to dispose of case A in ten minutes; only to
find that case A raises a fierce argument which captures the interest of the whole class. Unexpected
points are taken and you have to think furiously not only to give the right answer to unforeseen
questions which are being put, but to ensure that corrections are made, say, to attractive but
possibly erroneous statements propounded by student A which may be conscientiously written down
by B. To suppress the discussion would be frustrating to the class and discourage its members from
- 20-
 raising Issues of this sort again - that is, it tends to defeat the whole object of the method. Some-
times the questions raised by first year students are original and exceedingly difficult - or at least
I find them so. For example, when discussing Glasbrook v. Glamorgan C.C. (Î925) A.C. 270, I
was asked in what sense was the Chief Constable under a duty to provide protection against the
striking colliers. What was the correlative right? (We had already touched upon Hohfeld in con-
nection with White v. Bluett (1853) 23 L. J . (Exch.) 36). Could anyone sue him if he did not
provide proper protection? Did he commit any crime by not doing so? If no one could sue him
and he committed no crime, was he under a duty in the legal sense at all? If he was under no
legal duty did the case raise a problem of consideration at all? This is the kind of thing which
may be sprung on you without warning, which is interesting and difficult, and which must be
grappled with then and there. Some of the problems that have arisen in the course of class discus-
sion have found a permanent place in the book. If A agrees to sell to B that which B already owns,
the contract according to the generally accepted view is void: Cooper v. Phibbs (1876) L.R. 2,
H.R. 149, as interpreted in later cases. In Bell v. Lever Bros [1932] A.C. 161, A paid B
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£30,000. What for? For the right to discharge B from his service. But he already owned that
right. Was not this then, a case of A selling to B that which B already owned? And, if so, why
was not the contract void - or at least voidable?
At the other extreme, one finds on occasion that the class is sluggish and slow. Then you have
to work very hard to stir them up, to stimulate and provoke them into talking. There are many
factors which may affect the mood of the class. Some of the students in answering my question-
naire volunteered the comment that 9.00 a.m., especially on Monday morning, is not the best time
to expect them to sparkle. Clearly there is something in this. Another thing I notice is that they
are always more ready to talk when the case deals with some transaction which they are familiar
with in their daily lives - an auction sale, buying goods in a supermarket, boarding a bus, having
clothes laundered and so on. But introduce a bill of lading or a bill of exchange, and they put up
the shutters. This is another occasion when a very brief lecture is called to to explain what the
bill of lading is and to show how it involves essentially the same kind of problems of simple
contract as the more familiar transactions. One of the great virtues of contract as a case method
subject is its high degree of generality; relatively few principles run through the whole subject
and are applicable in almost all transactions of life.
The quality of one's performance in a case method class tends to be much more variable than
in lectures. I am conscious that on some days my lectures are marginally worse than on others,
that today for example I have been rather more obscure and long-winded than usual in explaining
a particular point. But the variation is slight. I may emerge from a case method class, on the
other hand, quite elated by what - to me at least - was a thoroughly stimulating discussion which
appeared to have the complete attention of the whole class; or I may emerge thoroughly depressed
at my failure to get the thing going at all. It is very much easier to make a mess of a case method
session than of a lecture. So there is a constant stimulus to the conscientious teacher to do better.
The case method may keep the students on their toes; it certainly keeps the teacher on his.
S everal of the students in making additional comments in my questionaire express the opinion that
case method teaching depends for its success on the ability and personality of the teacher to a
greater extent than a lecture course; and I believe this to be true. Skills other than those of
actually teaching are involved. You have to be able to suppress the garrulous students who wish
to talk all the time, but to do so without frightening them off altogether and to try to coax the
reticent and timid into participating.
There are some important practical considerations. The shape and size of the lecture room is
very important and we have a good deal of difficulty in getting the right kind of room here. In an
ordinary lecture it is sufficient if you are able to make yourself heard in the back row. In a case
method class you need to be able to hold a conversation with the man in the front row which will
be audible at the back of the room. You may be able to make yourself heard easily enough, but
this is little use unless the answering student can also be heard. A long narrow lecture room is
the least suitable, and the lecture theatre in which everyone is reasonably near to the instructor
the best.
Student Reaction
74% of the students answering the questionnaire said that they found the average case method
class more interesting than the average law lecture and only 12% said they found it less interesting.
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 Among LL.B. students more than 80% said they found case method more interesting and less than
2% said they found it less interesting. 55% thought the case method was more effective in enabling
them to understand the subject than lectures, 23% that it was less effective. The lecture on the
other hand is thought to be more effective for the acquisition of information by 49%, whereas only
20% thought the case method was more effective in this respect.
Students were asked about the average time they spend in preparation for a case method class.
As might be expected, there was a considerable divergence in the answers, 16% saying that they
spend less than half an hour and 3% that they spend more than 2 hours. The average time spent
appears to be about an hour.
53% of the students always make notes in advance for use in a case method class and 34%
sometimes do. 40% always make additional notes during the class and 56% sometimes do so. Bather
surprisingly (to me), 31% thought their case method notes were more valuable than their lecture
notes whereas only 26% thought they were less valuable.
Students were asked about the average amount of work they do subsequent to and arising out of a
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case method class. This was disappointingly small, 68% spending less than half an hour, 19%
between half an hour and an hour and only 2|% more than an hour and a half.
50% rely more heavily on the text book in the case method course than in the lecture course;
33% rely less heavily on it. Apart from the case book and text book, 41% of the students think they
read less widely in relation to the case method course, only 10% that they read more widely.
Students were also asked about their work in relation to lecture classes. It emerged that, as I
would have expected, virtually no reading is done in preparation for lectures; and, as I did not
expect, that the reading done subsequently is not significantly greater than in the case of the case
method class. It seems clear that the case method demands more work from the undergraduate -
in the case of some of them, much more. This year we taught part of two of the second year courses
- Tort and Criminal Law - by the case method and this led to many protests that two courses taught
in this way imposed too great a load.
It may be thought that the actual number of hours quoted does not add up to a very heavy working
week, when multiplied by four to take account of the four courses which we have in each year. It
must be remembered, however, that the student has to do a good deal of work not directly related
to the lecture course or case method class. He has to do a good deal of collateral reading, to
prepare for two tutorial classes each week and to write an essay on average once a week through-
out term. My impression is that they are kept pretty fully occupied; and certainly they claim that
this is so.
Results
What results does the case method produce? It would be nice to be able to tell you that the intro-
duction of the case method at once resulted in a marked improvement in the standard of the examin-
ation papers; that the external examiner now always rushes to congratulate me on the exceptionally
high standard of achievement of my class in contract. But unfortunately this would not be true.
Some differences were noticeable in examinations after the case method was introduced. The
re-gurgitation of lecture notes ceased, because there were no longer lecture notes, in the same
sense, to re-gurgitate. Our examination papers, like those of most other universities, consist
mainly of problems. But the student easily recognises the problem as one involving, say, misre-
presentation. If he has a thorough mastery of his lecture notes, there is then a great temptation, to
which all too many yield, to demonstrate his vast learning on the subject and spend twenty-five
minutes reproducing his notes, concluding with, " . . . and thus it will be seen that Henry may
rescind the contract, etc. " Only the last five minutes is really spent on the application of the law
to the problem. My impression - and it is only an impression, but it is based on my experience of
examining here at the same time as in other universities where conventional lectures are given -
is that the student taught by case method will write shorter answers, citing fewer cases, but a much
greater proportion of his answer will be devoted to a direct consideration of the problem in front
of him, a higher proportion of his answer will be the product of his own thought and a lower proportion
the reproduction of that of other people. If I am right, the case method results in the student devoting
a greater proportion of his time in the examination room to thinking, just as it does in the lecture
room.
Of course, not every examiner would think the case method student's answer a better one. I
confess that if I were teaching my students for an external examination which they would take in
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 competition with students from other institutions, I should have very grave doubts whether I ought
to teach them by the case method. I think that the average examiner might well be more impressed
by the kind of learning demonstrated by the student who has mastered a good course of lectures.
It is true that the second and third year students answering my questionnaire, on average, thought
the case method at least as good a preparation for the examinations which they had taken as the
lecture courses. 39% said that they thought it was a better preparation, 32% a less good preparation
and 26% thought there was no difference in this respect. The students, however, are not in the same
position as I am to make comparisons, and my doubts persist. However, I do not regard it as my
primary function to get students through examinations. Examinations are a necessary evil but they
should not be allowed to dictate the nature of the course. Rather, the course should dictate the
form of the examination. The case method in my opinion, now to some extent confirmed by the
answers to the questionnaire, is a more interesting way of learning law, calling for a greater
intellectual effort on the part of the student and likely to result in a more lasting benefit to him.
Perhaps I can conclude with the comment of an anonymous third year undergraduate:
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"The great advantage of the case method is that it keeps the audience on its toes. You really have
to prepare for the lecture. Also, you just don't walk into a lecture, copy down notes and forget about
them until the exams. You digest the subject as you go along and so find it easier to revise. Also a
much more enjoyable way of being taught law. "

1. Professor David Marsh and his colleagues in the Department of Applied Social Science gave me
great assistance in the preparation and analysis of the questionnaire.

Professor J . C . Smith is Head of the Department of Law at the University of Nottingham.

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