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:

PROBLEM 126

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. 

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Related Posts:

“A Guide to the Best of My Blog”; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html

“How I Became a Law Professor,” January 27, 2010; http://douglaswhaley.blogspot.com/2010/01/how-i-became-law-professor.html

“The Deathbed Test,” July 27, 2010;
http://douglaswhaley.blogspot.com/2010/07/deathbed-test.html