Bad Law

Originally appeared in the July 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Bad Law

BY ANDREW J. McCLURG

Researchers have announced alarming findings from a study of science textbooks used by middle school students: they’re riddled with inaccuracies. Led by John L. Hubisz of North Carolina State University in Raleigh, investigators poured over the dozen most popular science texts and compiled a list of errors 500 pages long.

This got me worrying about legal education. Has anyone ever studied law school casebooks for accuracy? I took on the task, painstakingly reviewing casebooks in the first-year curriculum for errors. The results were shocking. Here are just a few excerpts of questionable accuracy from some of the most popular first-year casebooks:

Famous Property text:

“Of all areas of law, future interests holds the greatest everyday relevance to most lawyers. Hardly an hour goes by that a lawyer isn’t called on to apply The Rule in Shelley’s Case, although most lawyers ‘pay the rent’ with bread and butter Rule Against Perpetuities cases.

“The law of future interests is so simple and straightforward that ‘future interest mill’ firms now rely on secretaries to fill out forms to manage their hectic practices, which can average 1,000 fertile octogenarians a week.”

Famous Legal Writing text:

“Flowery run-on sentences with no punctuation are the key to good legal writing. Before beginning any sentence, ask yourself, ‘How many words can I cram into it?’ If your answer is less than 250, rethink the sentence.

“When writing a brief, use lots of inflammatory, ad hominem-filled hyperbole, as judges greatly prefer it to clear reasoning.

“Don’t worry about typographical errors. No one notics thm. And remember, if you personally think your writing is good, you’re probably right.”

Famous Torts text:

“Tort reform is a very non-controversial issue. American business leaders in particular are unanimous in their praise that our tort system functions like a smooth-running timepiece. Their only complaints are that personal injury lawyers receive inadequate compensation and that high punitive damages awards occur too infrequently.

“On the other side, most plaintiffs’ lawyers feel strongly that industry can be counted on to do the right thing and that the judicial system should just back off and leave corporate America alone.”

Criminal Law text:

“Because murder is a serious felony, it is sound legal advice to tell your clients to dispose of the body and murder weapon quickly. Explaining with a well-timed wink that fewer witnesses means lower litigation costs can help ease your path to a smooth trial.

“One thing you don’t have to worry about practicing criminal law is getting paid. Criminal clients are by nature honest and reliable people who remain grateful even after conviction. Most will carefully set aside a portion of their income each month from selling drugs in prison to pay outstanding legal bills.”

Famous Civil Procedure text:

There’s been concern in educational circles that texts are being “dumbed down.” I didn’t believe it was a problem in law school until I came across this excerpt in a Civil Procedure casebook:

“Once upon a time there was a Pennoyer and a Neff. They lived in a dark, scary forest called Personal Jurisdiction. One day a scary monster called the Supreme Court descended on the forest, laying a curse upon the land …”

Pretty disturbing results, huh? Don’t be too concerned. Other educational research shows that the harm caused by flawed textbooks is minimized by the fact that most students don’t read them.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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