As a law teacher, I have observed these benefits of the case method, particularly with conducive appellate opinions and a skillfully assembled text. But I have also experienced, as I suspect most law teachers have, instances in which a case that lacks a sufficiently revealing narrative seems to mystify more than elucidate. One example is the case of Brown v. Voss, which appears in a number of property law casebooks, including the widely used Property by Jesse Dukeminier and James E. Krier. In Brown v. Voss the State of Washington Supreme Court departs, in a somewhat disingenuous way, from an almost universally accepted common law rule and makes a cross-boundary allocation of property rights. In the process of finding the traditional rule unsuited to the facts of the case, the court presents what the reader suspects is a highly simplified narrative of the dispute between the neighboring residential landowners over a right of way across one of the neighbors' property. What I discovered from exploring the record in the case, related land and other court records, and interviews with the parties was predictable in some ways and startling in others. As the reader of the opinion suspects, the conflict between the neighbors had a dark and bitter emotional history. As one cannot easily suspect, the physical aspects of the property differ in legally significant ways from the court's description and understanding. When the supreme court of Washington decided the case, the controversy, unbeknownst to the court, was moot. And the party who appears to be the loser in the opinion was in reality the winner. The Article proceeds by telling a set of stories about the case within a story about teaching the case, in the process conveying its analytical content in part through narrative form. The Article then discusses how its analyses demonstrate the ways in which a more complete and accurate narrative could provide students with a concrete, evocative context that would enable them to engage in a more fruitful doctrinal and theoretical analysis. Students could better comprehend and evaluate the social and economic meaning of the court's decision because they could assess the court's conclusions about the parties' behavior, they could contemplate whether the relative value of the parties' reallocated rights was as disparate and as simple to assess as the court believed, and they could consider whether the manner in which the court reallocated the parties' rights was practicable. Perhaps most importantly, a more complete and accurate narrative would give students an opportunity to enter imaginatively into the lawyering process.
Stories Out of School: Teaching the Case of Brown v. Voss, 16 Cardozo L. Rev. 1445 (1995)