FEATURE
Shining a Light on Casebook Bias
by Marci Wicker
In 1991, the purchaser of a home located in Nyack, New York, was held by the Supreme Court of New York to have made “a most unnatural bargain” when he signed on the dotted line for 1 LaVeta Place. As a result, some say that this gorgeous Queen Anne Victorian home, located just a horse gallop across the bridge from Sleepy Hollow, is America’s first legally haunted house. In this case, Stambovsky v. Ackley, “Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be … possessed by poltergeists, reportedly seen by [the] defendant seller and members of her family on numerous occasions over the last nine years.” Upon learning of this ghastly reputation, the buyer sought rescission of the contract and a return of his down payment. The court analyzed this case against the common-law principle caveat emptor—let the buyer beware.
Under caveat emptor, the responsibility is on the buyer to reasonably examine the property. If they don’t inspect the characteristics of the property, they can’t cancel the sale or have money returned if any deficits could have been discovered if they did inspect. The majority opinion of the Supreme Court of New York for this case was written by J. Rubin, and it is an absolute treasure trove of ghostly puns worthy of a read, such as:
- [P]laintiff hasn’t a ghost of a chance, [but] I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his downpayment [ sic].
- Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale.
- [T]he notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.
- [T]he most meticulous inspection and the search would not reveal the presence of poltergeists at the premises or unearth the property’s ghoulish reputation in the community.
Clearly, the buyer was allowed out of the contract and was awarded a return of his down payment. It’s estimated that as many as 50 people called to inquire about buying the legally haunted house within weeks of the court’s decision. Bill Batson of Nyack News & Views reported, “After losing the court judgment, a disgusted Ackley moved to Florida. She was heard to declare that she was taking the ghosts with her.” The home has passed through several owners since Ackley took her leave, but no spiritual entities have been seen, and no ghostly encounters have been reported since that time. The house sold in 2016 for $600,000—above comparable homes in Nyack, according to Trulia—and is now painted a beautiful shade of blue.
 The dissent in the case written by J. Smith discusses the concepts of misrepresentation, market value, arm’s length transactions, and public knowledge, among others. It is an analysis using formalist views expressing a desire to retain the principals reflected in caveat emptor and common law. Nicholas Mignanelli, a research and instructional services librarian at Yale Law School, shared with me an exercise that a team of law librarians at his institution uses for its students involving the dissent in this case and its interesting presentation in at least one property law casebook.
THE ILLUMINATION
Law students are assigned to read voluminous cases and academic literature throughout their law school career. It would be impossible for them to read the full texts of each and every case they are assigned, so casebooks, usually written by law professors, contain excerpts from legal cases in which applicable law in their subject area is applied. The students analyze the language, brief the cases, and use gained knowledge to form their view of the law and judicial reasoning.
The original Ackley case’s dissent spans 595 words over six full paragraphs, but in the casebook described by Mignanelli, fewer than 40 of those words were included. The words in the casebook arguably contain none of the significant legal concepts from the original dissent. The included words, as noted by Mignanelli, are, “[I]f the doctrine of caveat emptor is to be discarded, it should be for a reason more substantive than a poltergeist. The existence of a poltergeist is no more binding upon the defendants than it is upon this court.”
What Mignanelli and his colleagues do with this case and how they make students aware of the dissent’s presentation in the casebook is a great example of the duty and power that librarians may have on our future leaders and society in general. During the orientation session for new law students, the law librarians give a presentation on how to brief a legal case. Briefing a case is a way law students process and analyze cases and the legal doctrine; it is a self-created study aid.
In this exercise, the law librarians have the students read the full Ackley case as reported. Then the students are asked if they agree with the dissent. Mignanelli says that typically a third to half of the students raise their hands in agreement with the dissent. Next, the law librarians have the students read the dissent as presented in the property law casebook. Again, they are asked if they agree with the dissent as it is presented in the casebook. Their hands do not go up this time.
 This moment of furrowed brows and connection is experiential learning in its most understated, elegant form. Mignanelli says, “This is not something you need to hit them over the head with, lecture for an hour about, or even articulate for them. Taking the extra one minute to have them read the additional version of the dissent and answer the question again is all it takes. They understand.” Completing this exercise gives the instructors the opportunity to promote information literacy and critical thinking for their students in their studies and law school careers. The question raised by this exercise and its result is: How can you know if you agree or disagree with the legal analysis or logic if it is not presented? Mignanelli references Kathleen D. Fletcher’s 2021 article, “Casebooks, Bias, and Information Literacy—Do Law Librarians Have a Duty?” (see the sidebar) and her research as the inspiration for the case briefing exercise in critical information literacy.
THE EVIDENCE
I had the opportunity to speak with Fletcher, a reference and public services librarian at the University of New Hampshire’s Franklin Pierce School of Law, about her article and research. Fletcher says her interest came about organically; it began with a beloved late law professor at her university who was said to be remarkably unbiased in his teaching. She knew that he had written several textbooks, so she wondered if his texts would be unbiased like his lectures. Her question expanded to, “I wonder if any casebook is unbiased.” This led her down the aisles of her library’s textbook course reserve, where she selected two property casebooks from around the same publication year by different authors. She then chose and reviewed one case in both casebooks to compare what the authors opted to include from the facts of the case in each casebook. When she found that the two authors had chosen exact opposite facts to include in their casebooks, she thought, “That’s bananas!”
Fletcher consulted several of her peers, who were intrigued about this idea of casebook bias and her surprising findings and who told her to “Get more cases!” She collected case comparisons of multiple cases in civil procedure, constitutional law,and property casebooks. She found that authors consistently chose to include different facts in their casebooks. Understanding that we are all inherently different and have different ideas, views, and histories made total sense. But, Fletcher says, “The facts included by each professor are not the same facts; could that influence someone who is learning the law depending on which facts are presented? These students are imagining that they’re learning to think like lawyers, they’re learning to be objective, and they’re learning to put away their emotions and view the law through an unbiased lens. When in fact, the very thing that is teaching them has not done that.”
After speaking with Mignanelli and Fletcher, I was curious how this idea would be received, so I mentioned the idea of casebook bias and the case briefing exercise to a law professor I know. Upon first listen, the professor had furrowed brows and asked questions: what books, what authors, what case, etc. They seemed dissatisfied and said, “Humph.” Then they reached out and laid a hand on top of the casebook used in their own class, stared briefly at the pages as they leafed past their thumb, and said, “How they edited the casebook would have to be biased. That is interesting.” I agree.
THE TAKEAWAY
Fletcher did not set out and does not plan to further her research with the intent of identifying the derivation of the biases that led to the authors’ choices. Mignanelli is not encouraging or championing a movement to ban law casebooks or change legal pedagogy. Everyone has biases, and even though the intent is rarely malicious and the result is not always hurtful, they are ever-present in the choices we make. Fletcher says that that was the aim of her research and article: to make people aware that bias is present everywhere, even in the hallowed annals of legal texts.
Fletcher notes, “One of the tenets of information literacy is to teach people to think critically about what they’re looking at, what they’re reading. I make the argument in my article that we law librarians should do the same for law students.” Treating all individuals fairly, with the same rights and access, is a distinct focus for all libraries as we promote equity and inclusion. Fletcher says, “I think this is a real vocation for librarians to point these things out; this is information literacy.”
When I asked her how we can make people aware that what they are reading may not be all of the story, Fletcher referenced Yale Law School’s case briefing exercise as a great intervention. She also described the intervention of offering students factual information about the authors of the books we use so they can adequately apply their own lens through which to view what they are reading. She suggested letting students know who the author is, where they are from, their experience, and their employment history—just the facts. Mignanelli would love to see more people using something similar to the case briefing method for other types of texts that includes excerpts, just to make people aware that there may be something of interest or importance to them beyond what they have been given.
Fletcher says, “The goal of education is to empower people to think their own thoughts. Our first step is to remain committed to information literacy and ask people to think, look, and be aware about what they see and what they may not be seeing.” Are choices being made in the creation of our other important texts that we may not be seeing? Does it matter? Would it matter to our patrons? This is the awesome privilege we have, handing our students a flashlight so they know they have the ability and the power to take a peek around any dark corner they see and to know there is something on the other side. As journalist Margaret Fuller said, “Today a reader, tomorrow a leader. If you have knowledge, let others light their candles in it.”
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