Total Pageviews

Monday, April 30, 2018

My Embarrassing Textbooks

In law school the books students buy for classes are called casebooks not textbooks.  Why?  Because  they’re filled with reprinted decisions from various courts, accompanied by textual explanations, diagrams, and/or quotations from articles or books.  I now have written seven casebooks since 1980, all of them still alive in newer forms since their original publication.  My casebook on Commercial Law is in its eleventh edition; the one with the smallest number of editions is Debtor and Creditor Law (largely bankruptcy), only in its sixth edition.  This blog post explains how I got into writing casebooks and why my books have a certain reputation that causes some experts to turn up their noses when those Whaley books are mentioned.

One of the courses I taught when I first walked into a law school classroom (January of 1970) was Commercial Paper (sometimes called “Negotiable Instruments”), which deals with checks and promissory notes.  It is largely governed by a complicated statute called the Uniform Commercial Code [UCC].  I adopted the leading casebook of the day and was disturbed by how little of the huge statute it covered.  The reason was that the casebook reprinted case after case and these wordy opinions take up a lot of space.  Each case typically focused on one or two issues, but by the end of the book important segments of the UCC were left completely unexplored.  I was certain that my students didn’t exit the course with enough information needed to practice in this area.  What to do?  Simple enough.  I started supplementing the cases with problems exploring the other important issues.  Here is a typical one:

One day it occurred to the corporate treasurer of the Business Corporation that his personal situation would be easier if he started adding fictitious employees to the payroll and took their checks each month for deposit into accounts opened under the phony names. Are such checks properly payable from the account Business Corporation has with its bank? See UCC §3-404(b). Would the result be different if the treasurer padded the payroll with the names of real former employees and then did the same thing with these checks? If the depositary banks that took these checks were negligent in allowing the treasurer to open the accounts, would that change the result? See UCC §3-404(d).

This worked splendidly and soon I decided to stop using the original casebook entirely.  Instead I created my own materials which combined lots of these Problems with informative cases I thought nicely covered important points, clearly explaining the law and the policies behind it.  The students liked getting duplicated materials they didn’t have to pay for, and they enjoyed the Problems, even though it was a lot of work to plough through them and then be quizzed in a Socratic dialogue about them.  Sometimes I used famous names in the Problems or the names of my friends.  One of my Problems, for example, began with this sentence: “When Harry Potter decided to settle down and buy a house he arranged for a financing loan with Rowling National Bank, which loaned him $200,000.”

There was no internet in 1970, but one of the legal publishing houses distributed an annual publication listing “Unpublished Law School Materials.”  When enough of my law professor friends began using my materials, I listed my embryonic works in this publication.   Suddenly they were being being used at many other schools.  That interested Little Brown & Company, then one of the leading casebooks publishers in the country, and the editor in charge of developing new casebooks asked to see my Commercial Paper materials in 1980.  This editor later told me that he sent my materials out to leading experts in the field (mostly law professors at big name schools) for evaluation, and got distinctly mixed responses.  Some were dismissive because the books had all those Problems,  a number even having (gasp!) humor in them and/or amusing names of the parties, while other reviewers said that, well, okay, a Problem book was iconoclastic but might be worth trying.  After reading these thoughts this courageous man gulped, decided to go with his instincts, and sent me a contract for a new book entitled “Problems and Materials on Negotiable Instruments” (1981).  I dedicated the book to my parents, Robert and Lenore Whaley (Dad had just died the year before, but he knew it was about to be published, and was proud to hear it).

Leather edition of one book the publisher sent for Xmas once.
To the amazement of everyone the book sold very well and generated fan letters from law professors all over the country who loved it.  Yes, it was not often used at big name schools, but , hey, there are around 175 law schools in this country, and the royalty checks were very, very nice.  Little Brown promptly ordered two more books from me covering other parts of the UCC [Problems and Materials on Secured Transactions (1982), Problems and Materials on Sales (1983)].  All three books were then shortened and combined into a giant book covering the entire UCC, allowing teachers to demonstrate how the UCC fit together in one big course: Problems and Materials on Commercial Law (1996).  In the years following I wrote with Professor Thomas Crandall of Spokane University a book called “Cases Problems and Materials on Contracts,” with Professor Jeffrey Morris of the University of Dayton “Problems and Materials on Debtor and Creditor Law,” and, finally, a solo book “Problems and Materials on Consumer Law,” thus covering the entire commercial law field with Whaley books.

Not only did my books contain lots of problems (later articles on teaching law called me the “father of the problem method”), but they emphasized the basics of the rules of law and were designed so that the entire book could be covered by a diligent effort in one semester.  They did not contain, as many books do, an emphasis on the professor’s own philosophy of law or particular area of expertise.  My goal was always, first and foremost, to teach the students the basics of each subject.  My thought was that when they were hit with the complex cases that would later come at them in practice they would be well grounded in the law, and could then research the complexities that faced them with confidence.  When I looked at other books I was competing with I was bothered by how much they often skipped basic rules in certain areas,  bordering on educational malpractice in my opinion.  With my books the rules of law were examined thoroughly and the instructor could add whatever else he/she thought appropriate for the students to learn.

Chinese edition of Commercial Law
While my books were popular and remain that way today, they were never quite respectable at major law schools like Harvard, Columbia, Stanford, etc.  And I would be told this, sometimes brutally, at various gatherings.  Every year, for example, the law professors of the country get together for a three day drunk . . . er . . . I mean a “learned convention” where there are meetings, seminars, lectures, and parties.  I was often a speaker at these events and, of course, frequented the parties (and poker games) that occurred.  The University of Texas, my law school alma mater, famously throws a late Saturday party with an open bar, and it was at this event one year when I was slammed the hardest.  Alcohol had been distributed liberally and at one point I was talking and laughing with a group of professors, some of whom I knew and others not, when one of them suddenly said, “Wait a minute!  You’re that Whaley who puts out those silly books with the cutesy Problems, aren’t you?”  Gritting my teeth, I acknowledged I was that very villain.  Thus encouraged he added happily, “I wouldn’t ever use those Problems.  I’d be embarrassed to read them out loud.”  I'm not a violent person, but punching him sharply in the mouth did fleetingly cross my inebriated mind.  My friends jumped to my defense, but I just walked off rather than let loose the sort of comments (which included words remembered from my Navy days) that were straining to get out.

So, blog readers, that’s why this post is called (tongue in cheek) my “embarrassing” textbooks.  I remain very proud of these books, which are still selling happily.  I’ve always gotten fan mail from professors who use them, some of whom have taught from them all of their teaching careers.  One woman at Tulsa called me in a panic some years ago.  Just for variety she had switched from using one of my books but the new one she’d adopted had proved such a nightmare she was asking me if I would please allow her to duplicate and hand out many of my Problems for the remainder of the semester just so she could lessen the steady student complaints about the new book.  She promised she would adopt to my book again next year.  I was delighted to help her out and ease her return to Whaley.

All of my books except Consumer Law now have co-authors.  I'll turn 75 in September of this year, and talented younger law professors like Steven McJohn of Suffolk University and David Horton of the University of California Davis have jumped in to help this old man’s legacy go on after I can no longer participate in rewrites.  

As readers of this blog know, I judge everything in life by the "death bed" test: what will make you slap your head and say, "How could I have been so stupid?" and what will make you smile while remembering a wonderful moment?  My professional books are things that will pass that test.  My publisher has informed me that having seven casebooks in print at the same time has never been equaled by anyone in this country, I’m proud to be the father of the problem method (now much in use in other authors’ casebooks), and my books are, in a professional way, my beloved children. 

Related Posts:

“How I Became a Law Professor,” January 27, 2010;

“The Deathbed Test,” July 27, 2010;

Friday, April 13, 2018

A Bucket List Checkoff: Playing a Man Named Beverly in “August Osage County”

It’s the opening night for SRO’s production of Tracy Letts’ Pulitzer Prize-winning dark comedy “August: Osage County” here in Columbus, Ohio.  In just a few hours I will appear in the opening scene and perform a ten minute monologue (interrupted by occasional dialogue with two other characters), and then I will be done.  My part is the patriarch in an Oklahoma family who gives the little talk that is delivered in the Prologue to the three act play.  Then he commits suicide and the rest of the show involves his large family trying to figure out why.  The character is named Beverly Weston (yes, “Beverly” is a man’s name in various parts of the United States and Great Britain), and his character is what Alfred Hitchcock called a “McGuffin”: something in the plot that the characters care about but the audience does not. [See for more; I think it’s interesting that the bars that are in the lobby of some AMC movie houses are named “McGuffin.”]

Beverly's Family at His Funeral Dinner

John Cullum
In 2008 I saw this play performed on Broadway, and the great Broadway actor John Cullum played Beverly.  He has won two Tony Awards and been in numerous TV shows, most notably in Northern Exposure where he played a French trapper in love with a very much younger woman.  When Cullum was in “August: Osage County” Estelle Parsons was playing the leading role of his wife, and they both had star billing.  That was odd because he’s only in the small opening segment while she is in more or less every scene thereafter.  But they are both big names on Broadway, hence the billing.  When I sat down in my third row seat and the show began, John Cullum poured himself a drink (this is called for by the plot: he’s a drunk), and the smell of Jonnie Walker Scotch came wafting down to my seat.  “Goddamn!” I thought.  “He’s actually having a drink right on stage!  And why not?  It’s eight o’clock, he only has to perform a ten minute segment, and then he can go home.  He certainly wasn’t around for the curtain call three hours later when this long play ends.  What a cushy job!  Top billing, ten minutes of work, a free drink, and home in bed shortly thereafter.  John’s an old man these days.  There have to be perks.

John as Beverly Weston

The ten minute part is juicy: Beverly explains life, his travails with his wife, and conducts an interview with a new housekeeper who will take care of his drug-addicted wife when he is gone.  As he lectures her he drinks, and it’s clearly not his first drink of the day.  It’s all a fascinating vignette, and as I listened to it I thought to myself, “I’d love to play this part some day.”  I immediately put it on my bucket list.

Well, that time has come.  When SRO announced auditions for the play, I attended and was very pleased to be awarded the part of Beverly Weston.  What I hadn’t thought through was how difficult a part it is to memorize as this drunk meanders from one thought to another, talking about poetry, his battles with his wife, the reasons he’s hiring the new housekeeper, an explanation of her new duties, and a brief interlude when his drugged-up wife wanders into and out of the scene.  I made multiple mistakes at every rehearsal until very recently, and I doubted it I would ever get it right.  There’s more: Beverly has an Oklahoma accent and it’s a major challenge to make what he’s saying comprehensible and funny/sad/philosophical as the moment requires  I hope I can do all that tonight when the curtain goes up.

After Beverly leaves the stage the terrific cast SRO has assembled takes over, and they are quite wonderful as they work their difficult way through this fascinating play.  Everything is well directed by Will Macke, himself a major talent.

When I took the role I negotiated with Will for the right not to have to participate in the curtain call each performance.  This means I can perform my part in the Prologue and then go home.  I will stick around for the curtain call on opening night (tonight) and on the two occasions where I will have in the audience either my family or my husband, David Vargo (who, by coincidence, is opening in his own show “Chapatti” at Red Herring Productions tonight, running April 12-29).  My absence normally will not be noted at all.  My character is largely forgotten by the end of the three hour show, and the actors taking bows are the magnificent performers who have brought this play to life for the lengthy evening.

Our play will run for this weekend and then T/F/S/Sunday of next, hopefully playing to large houses.  And then I can happily check this fantastic role off in the relevant column on my bucket list and move on to the next item.

[Addendum:  We opened and the play is going very well.  Reviewers have stressed how very good all the acting is.  Come see us.  All cast members have two complimentary tickets to give away, so feel free to ask any of us for them.]


Related Posts:

“Douglas Whaley, Actor,” August 14, 2010;
“On Stage Again: Acting in Edward Albee’s “Seascape,” February 26, 2014;

“Opening in Another Play: The Pulitzer Prize Winning “Proof,” February 17, 2018;