A Comparison of the Use of Treatises and the Use of Case-Books in the Study of Law

By GEORGE CHASE

Dean of the New York Law School

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URPRISE is sometimes expressed that law schools pursuing the "Dwight method" of instruction should profess to cover a larger field of study in a given time than those following the "case method." The explanation, however, is simple, as an illustration will make clearly manifest. One of the standard volumes of selected cases is that of "Cases on Evidence," by Prof. James B. Thayer, who was, until his death a few years since, professor of this important subject at the Harvard University Law School. If a comparison be made between this work and a text-book like Greenleaf on Evidence, as regards the treatment of a particular topic, as, e. g., the "Presumption of the Continuance of Life," the result is as follows:

GREENLEAF ON EVIDENCE (16th edition) vol. 1, sec. 41.

The statement of the law, as here made, is as follows:

"Where the issue is upon the life or death of a person, once shown to be living, the burden of proof lies upon the party who asserts his death. But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party; this period was inserted upon great deliberation, in the statute of bigamy, and the statute concerning leases for lives, and has since been adopted from analogy, in other cases; it is not necessary that the party be proved to be absent from the United States; it is sufficient if it appears that he has been absent for seven years from the particular State of his residence, without having been heard from. The presumption in such cases is, that the person is dead; but not that he died at the end of the seven years, nor at any other particular time. The time of the death is to be inferred by the jury from the circumstances."

THAYER'S CASES ON EVIDENCE (2d edi

tion, page 52).

The first case given on this topic is Doe v. Jesson, an English decision of the year 1805. It reads as follows:

"This was an ejectment (brought in 1804) for a house and a small parcel of land, which was tried before Rooke, J., at the last assizes at Northampton; and the principal question was whether the action were brought in time within the second clause of exceptions in the statute of limitations, 21 Jac. I, c. 16. The person last seized of the premises from whom the lessors of the plaintiff claimed, was one Thomas Jesson, on whose death in the year 1777, David, his elder brother, took possession of them, and transmitted the possession to the defendant, his grandson. Thomas Jesson left a son John and a daughter Frances him surviving. John was baptized in 1767, and after the death of his father, being then about ten years of age, was put out apprentice to the sea service by the parish, and was seen by a witness on his return from his first voyage about a year after the father's death; soon after which he went to sea again, and had not been heard of since, and was believed to be dead. Frances, the daughter, one of the lessors of the plaintiff, was baptized on the 21st of May, 1771, and afterwards married George, the other lessor. It was contended at the trial by the defendant's counsel that the ejectment was out of time; for it was uncertain when John, the son of Thomas, the ancestor last seised, died, and that the twenty years given by the statute began to run immediately on the death of Thomas in 1777, and consequently expired in 1797; or that, if the statute favored Frances, the daughter, till ten years after the disability of her infancy was removed, at any rate as she was of full age in 1792, she ought to have brought her ejectment in 1802, and

consequently this ejectment, brought in 1804 was too late," etc., etc.

After additional matter in Thayer's Cases, equal in length to that above quoted, the deci sion of the court is reached, which is as follows:

"The time allowed by the statute for making an entry might be indefinitely extended if the construction contended for by the plaintiff were to be admitted. As to the period when the brother might be supposed to have died, according to the statute 19 Car. II, c. 6, with respect to leases dependent on lives, and also according to the statute of bigamy (1 Jac. I, c. 11), the presumption of the duration of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last known to be living. Therefore in the absence of all other evidence to show that he was living at a later period, there was fair ground for the jury to presume that he was dead at the end of seven years from the time when he went to sea on his second voyage, which seems to be the last account of him. That was about the year 1778, which would carry his death to about 1785."

The next case in Thayer's Cases supports the rule stated in the last two sentences quoted from Greenleaf. The two cases together contain more than ten times as much reading matter as the quotation from Greenleaf, and even then they say nothing about the rule in Greenleaf that "it is not necessary" in this country "that the party be proved to be absent from the United States."

It thus appears that case-books take a good deal more 'space to set forth the law on a given subject than do text-books, and even then they may not do this with satisfactory completeness. Even in reading such entertaining books as Dickens' novels, it takes a good deal more time to read a two-volume work like David Copperfield than a single volume like Oliver Twist, and in reading law-books where careful attention and concentration of mind are necessary, the same truth is even more conspicuously evident. Thayer's Cases on Evidence is a volume of 1255 pages and its large pages contain so many words that a careful estimate has shown that this single volume has as much reading matter as 311⁄2 volumes of the size of Greenleaf's treatise. And, notwithstanding this, there are various important matters for which Greenleaf finds space, which Thayer does not treat at all.

Another well-known case-book is "Keener's Cases on Quasi-Contracts," by Prof. Keener, formerly professor in Harvard University Law School, and later dean of the Columbia University Law School. This is an extensive work in two large volumes, with pages of unusually large size. Prof. Keener afterwards wrote a text-book on the same subject, but his case-book would make about 412 volumes of the size of his text-book.

In view of these facts, therefore, it will not seem surprising that a law school using treatises as the fundamental basis of its instruction can cover the same field of legal knowledge in a shorter time than schools which confine themselves to case-books. The case-books can print but a few cases on each topic, and, even so, are oftentimes very voluminous. The text-books extract the pith from many cases and state it in compact systematic form, so that a moderatesized volume may contain the substance of thousands of cases. Thayer's Cases

on Evidence contains about 800 cases, while Greenleaf's treatise sets forth the law extracted from 14,600 cases as is shown by the list of cited cases in its latest edition. Another advantage results from this, viz., that when the law on any subject differs in different states, the treatise writer, with his compact form of statement, can find room to set forth the diverse doctrines, while the author of a case-book cannot print as many cases from the different states as would be necessary to show this, without enlarging his book beyond all reasonable bounds. At a meeting of the American Bar Association a few years since, a lawyer practicing in a Western state, but who had been educated in the East at a school following the case method, complained that the case-books on the law of real property which he had used at the law school had been of little use in preparing him for his practice in the West. A law school using a comprehensive treatise may therefore most effectually prepare its students for practice in different states of the country. It may also readily combine with the study of the text-book the reading of a moderate number of cases, to illustrate the practical application of the legal rules and principles which the text-book sets forth.

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