Online

The Contextual Case Method: Moving Beyond Opinions to Spark Students’ Legal Imaginations

Introduction

A new student arrives at law school for her 1L year. She knows it sounds corny, but she’s here to make the world a better place. She’s seen injustice and tragedy (George Floyd, Parkland, climate change). She’s protested with Black Lives Matter and March for Our Lives and the Sunrise Movement. She’s heard, again and again, how her generation will save us, how they’re giving people hope. She sees law as a career that will let her do good; she is hungry to advocate and determined to make a difference.1 1.Tiffany D. Atkins, #Fortheculture: Generation Z and the Future of Legal Education, 26 Mich. J. Race & L. 115, 127–32 (2020) (describing Gen Z and noting that “many . . . consider themselves activists”).Show More

Classes begin. She’s assigned the same slate of courses that most law students have taken for the last 150 years.2 2.See Edward Rubin, What’s Wrong with Langdell’s Method, and What to Do About It, 60 Vand. L. Rev. 609, 616 (2007) (describing Langdell’s focus on the common law as “real law” and insistence that the first year be composed of mandatory common-law courses).Show More For each of these classes, she reads judicial opinions, mostly appellate decisions, often trimmed by the authors of her textbooks and organized around discrete legal topics.

The cases she reads deal with human tragedy—a fire that killed 492 people,3 3.Commonwealth v. Welansky, 55 N.E.2d 902, 907 (1944); Jack Thomas, The Cocoanut Grove Inferno: 50 Years Ago This Week, 492 Died in a Tragedy for the Ages, Bos. Globe, Nov. 22, 1992.Show More a boy with a badly burned hand4 4.Hawkins v. McGee, 84 N.H. 114, 115 (1929).Show More—but class discussions ignore these details and instead hone in on the legal rules governing the outcome. Dialogue quickly becomes abstract; the student places facts in one box or another—involuntary manslaughter or not, recoverable damages or not—and concerns about justice or morality are quietly jettisoned.5 5.See Elizabeth Mertz, Inside the Law School Classroom: Toward a New Legal Realist Pedagogy, 60 Vand. L. Rev. 483, 506 (2007) (observing law school classrooms and finding that the class discussions require students to “distance [themselves] from everyday contexts and meanings, and to concentrate upon abstract cognitive features of the environment” (quoting William M. Sullivan et al., The Carnegie Found. for the Advancement of Teaching, Educating Lawyers: Preparation for the Profession of Law (2007))).Show More

The student senses something is missing. She reads about gruesome murders in her Criminal Law class, but little about the crimes largely responsible for mass incarceration.6 6.SeeAlice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631, 1664–67 (2020).Show More She reads about ownership of dead foxes in her Property class, but little about Indian displacement or slavery.7 7.See K-Sue Park, Conquest and Slavery in the Property Law Course: Teaching Notes (Jul. 24, 2020) (Geo. L. Fac. Publ’ns & Other Works) (manuscript at 3–5), https://ssrn.com/abstract=3659947 [https://perma.cc/MX5M-3U47].Show More Race and gender come up on occasion—the Bernard Goetz case prompted a vigorous discussion of how case theories rooted in racial stereotypes can appeal to a jury—but even these discussions focus on past inequities, offering critique with the benefit of hindsight, suggesting that these problems are far behind us.

This seeming disconnect extends to her Legal Writing class, where she represents a client in a criminal appeal. Finally, she thinks. A chance to practice doing some good. But the conversations focus on how to argue within the limits of the law. Even here, there is little discussion about matters outside the boundaries of precedent, such as racial or gender bias, that may also impact the case. There is little talk about how to combat this invisible evidence in court. There is no discussion of how to reveal what is not said in opinions. There is no acknowledgement of the need to find a way for attorneys to push the envelope of the existing framework of the law to address deeply embedded inequities and pursue meaningful social change.

This student will likely begin to accept the message that she has received, that law, as found in the opinions she is reading, is normal and natural, largely static and unflinching, and something to be understood and sometimes critiqued, but not fundamentally disrupted.8 8.SeeMertz, supra note 5, at 504 (finding that the legal analytical process “is capable of devouring all manner of social detail, but without budging in its core assumptions”); see also Robert W. Gordon, Unfreezing Legal Reality: Critical Approaches to Law, 15 Fla. State Univ. L. Rev. 195, 215 (1987) (“[T]he discourse of courts and lawyers . . . constantly, subtly, almost unconsciously, keeps privileging one possible set of regulatory policies—one possible view of the world—as natural, normal, rational, free, efficient, and usually OK and just.”).Show More Because in making opinions the primary focus of the first year, law school legitimates and deifies them. A student’s legal imagination is not trained to see new possibilities; a radical reimagining of the world seems either impossible or inadvisable.9 9.We borrow the term “legal imagination” from the great James Boyd White. See James Boyd White, The Legal Imagination (1985).Show More Students who are shown these opinions as the prime example of legal reasoning, with few counterpoints that introduce outside perspectives or acknowledge alternative realities, are instead subtly encouraged to replicate the status quo.10 10.See, e.g., Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal Educ. 591, 591 (1982) (“Because students believe what they are told, explicitly and implicitly, about the world they are entering, they behave in ways that fulfill the prophecies the system makes about them and about that world.”); cf. Lucille A. Jewel, Old-School Rhetoric and New-School Cognitive Science: The Enduring Power of Logocentric Categories, 13 Legal Commc’n & Rhetoric 39, 41 (2016) (noting that traditional legal reasoning is like “infrastructure,” in that “we do not see it, we take it for granted, and we do not stop to critically consider its role”).Show More

Law students deserve better. Our vision is for a law school, especially a first year, where students do not read opinions in isolation, but in the broader context in which they arose. Where students are asked to assess the opinion not just as a source of rules, but as the product of a human, flawed and biased, who may or may not have been right, who may or may not have been aware of factors beyond the evidence in the case that drove the decision, who is but one player in a far larger legal playing field. Where students are asked to see beyond the boundaries of an opinion to reimagine what the law could be, not just repeat what it is.

What might emerge from such an approach may not be a wholesale revolution in legal education. Others have done inspiring work to push for that kind of ground-up, system-shattering change.11 11.See, e.g.,Kennedy, supra note 10, at 614 (putting forth a “utopian proposal” that restructures the law school to mandate a doctrine course, a clinical program, an interdisciplinary course, and a flexible third year); Gerald P. López, Transform–Don’t Just Tinker With–Legal Education (Part II), 24 Clinical L. Rev. 247, 346–47 (2018) (arguing that law schools should ban the Socratic case method altogether); Bennett Capers,The Law School as a White Space, 106 Minn. L. Rev. 7, 47–55 (2021) (describing a vision of what a truly inclusive law school would look like).Show More Our proposal instead keeps the traditional case method and the valuable analytical training it provides, but surrounds those opinions with context. By humanizing opinions, by pairing them with other perspectives on the same legal questions, and by exploring the complexities that went unaddressed and the influences that went unstated, professors can encourage students to imagine a different legal world.

The end result may be students who both know how to rearrange apples in the apple cart and “how to upset the apple cart altogether.”12 12.Capers, supra note 11, at 32.Show More

I. The Traditional Case Method and Its Discontents

Law school promises to teach students to think like lawyers. At its most basic, this means understanding rules: how to interpret them, how to derive them from legal sources, how to apply them to new sets of facts. The source material students are provided to achieve this learning—at least in the first year—is almost exclusively opinions.13 13.See Rubin, supra note 2, at 649 (“The traditional curriculum provides students with one experience—intensive questioning about the reasoning of judicial decisions.”).Show More Class time is devoted to dissecting opinions, teasing apart the relevant from the irrelevant, drawing out rules, tracing legal reasoning, and using the knowledge gained from the opinion to address hypothetical new sets of facts.

Looked at one way, this is a re-birth, a molding of a young mind so that it is sharper, clearer, more able to deftly solve legal problems. But looked at another way, it is an indoctrination, a blinding of the mind to considerations beyond the boundaries of the opinion, an acceptance of the system as it is, and a refusal to imagine how it could be. In this latter view, something valuable is shed as the lawyer is born.

This focus on opinions is stultifying along three different axes: First, it narrows the aperture and excludes non-legal circumstances that may have been quite important to the decision, giving students the false impression that only “the law” matters in decision making and that external factors do not play a role. Second, it embraces certainty—certainty of results and certainty of facts—which both denies the rhetorical nature of the opinion itself and gives students little preparation to maximize change-making possibilities in the world of ambiguity they are about to enter. Third, it forces students to accept the worldview of a judge or judges—usually white and usually male—as “the law” and dresses up that worldview as an objective, neutral, correct stance.

All of these problems contribute to a student’s sense that law is stable, just, normal, and “usually OK,”14 14.See Gordon, supra note 8.Show More instead of invigorating her imagination as to law’s possibilities and training her to push for legal change.

A. Narrowing the Aperture

The traditional case method’s focus on opinions gives students the impression that it is only the legal rules and rationales that matter, that nothing outside of the law played into the judge’s decision. But as Jerome Frank emphasized nearly a century ago, “an opinion is not a decision.”15 15.Jerome Frank, Why Not a Clinical-Lawyer School?, 81 U. Penn. L. Rev. 907, 910 (1933).Show More A decision is the outcome of the case, which is based on a multitude of factors, some legal and some non-legal, only a fraction of which make their way into opinions.16 16.Id.Show More Opinions are the written justification for the decision, but they do not capture everything that went into the decision.17 17.See id.; see also Linda H. Edwards, Once Upon a Time in Law: Myth, Metaphor, and Authority, 77 Tenn. L. Rev. 883, 884 (2010) (“[W]hen we talk about legal authority, using the logical forms of rules and their bedfellows of analogy, policy, and principle, we are actually swimming in a sea of narrative, oblivious to the water around us.”).Show More

One justification for using opinions as the source material for law school is that opinions are where the legal rules are embedded and the boundaries of the doctrine are defined, and it is the lawyer’s task to unearth and apply those rules to new sets of facts.18 18.See, e.g., Anthony Kronman, The Socratic Method and the Development of the Moral Imagination, 31 U. Toledo L. Rev. 647, 648 (2000) (describing traditional justifications for the case method, including that it helps students learn legal doctrine, gives students a feel for “boundary problems,” and provides them with experience in applying law to concrete problems); see also Russell L. Weaver, Langdell’s Legacy: Living with the Case Method, 36 Vill.L. Rev. 517, 547–61 (1991) (listing various reasons for adhering to the case method).Show More This is certainly true and a necessary skill for any lawyer to have.19 19.See, e.g., Kennedy, supra note 10, at 595–96.Show More Rules have some constraining function, and good lawyers must know how to deploy them effectively.

Yet to present this as the only work of the lawyer gives a distorted and narrow view of the actual foundations of the law. Continued adherence to the traditional case method trusts a judge’s recounting of what led to the decision and allows the vision of a decision governed by rules to flourish. Such an approach ignores the possibility that an opinion is simply window dressing for alternate motivations, backfilling “legal” reasons for choices made on other grounds.20 20.See, e.g., Linda H. Edwards, Where Do the Prophets Stand? Hamdi, Myth, and the Master’s Tools, 13 Conn. Pub. Int. L.J. 43, 52 (2013) (“[F]rom before the first moment of becoming aware of an event, we have already assumed a perspective, most likely by fitting the facts into a familiar narrative pattern. The question is not whether we see the world through the lens of a story, but which story lens we will use.”).Show More

The traditional case method thus both blinds future lawyers to possible injustices baked into the system and leaves them unequipped to counter those injustices when they occur.

First, this focus renders invisible the role of factors other than legal rules, such as bias, assumptions, or policy preferences, in reaching a decision. No judge will ever write, “I am denying this motion to suppress because I trust the testimony of police officers more than I trust the testimony of Black people, and this defendant is Black.” She can couch her decision not to suppress in the language of reasonable suspicion or probable cause. But the real reason for the decision could very well be that the judge overvalues the testimony of police officers and undervalues the testimony of defendants, especially defendants of color. Research into this area lends support to the idea that systematic bias and presumptions about police competence are driving these decisions, not reasoned consideration of the facts of the specific case.21 21.See Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1997, 2002 (2017) (explaining how structural biases and presumptions about police competence “likely pushed judges to systematically overvalue police knowledge”).Show More

Yet the traditional case method misleads students into believing that the legal rules alone led to the result. The opinion may leave no trace of the bias of the judge issuing the decision, or the stock story she believes about police officers as truthful and trustworthy. Failure to contextualize the opinion, leaving the actual drivers of the decision unacknowledged, leads students to trust that the rules are all that matter and that the system is fair and just. It presents a veneer of objectivity and neutrality over a system that is in fact deeply unequal and unfair.

Second, a student who does not understand the role bias, policy preference, or other non-legal factors play in decisions will not be as effective an advocate for their client. Knowing that a particular judge is inclined to believe police officers empowers the lawyer to consider ways to neutralize that preference. Perhaps she reminds the court, respectfully, of the importance of its deliberative and impartial role in reviewing these matters—while the rules encourage judges to defer to police expertise, judges are expected to have the advantage of neutrality in assessing the circumstances that gave rise to a stop. A judge who merely validates a police officer’s purported justifications is not adequately performing their role. A lawyer, anticipating bias to influence perceptions of facts, should know the importance of holding the judge to the task of making sure each asserted fact is supported and every inference explained.

Without training beyond opinions, students would not understand the importance of this framing, how it is necessary (but might not be sufficient) to win a case in the face of influences pushing a decision maker to rule against her client. A student who has only read opinions instead turns into the “helpless practitioner . . . ignorant of how the law should be applied and is applied in daily life.”22 22.Frank, supra note 15, at 919 (quoting Judge Crane of the New York Court of Appeals).Show More

But even more important, the new lawyer also may be unequipped to address the systemic problem when this same issue arises in case after case. Perhaps she has accumulated enough experience and professional competence to address questions of bias head-on for her individual clients and has neutralized some of their effect. But the rules themselves allow for, even encourage, deference to the police. The young lawyer’s training in opinion reading has not prepared her to make arguments that could unsettle the very foundations of the rules that place a thumb on the scales in unjust ways. It has not provided her with tools to push the law forward, instead of only mitigating the damage, piece by piece.

B. Denying the Rhetorical Nature of Opinions

The traditional case method also fails students on another front: the embrace of false certainty. Not only do opinions paint a false picture of the actual basis for the decision, but they also can make the outcome seem inevitable and certain, even when the judge herself may have harbored deep doubts about the result. Moreover, the appellate opinions that form the bread and butter of the traditional case method present the facts as decided and not in dispute, even when those facts may have been bitterly contested. Appellate opinions often leave little trace of the arguments that were not favored, the perspectives that were not prioritized.

Judges themselves recognize that their opinions plaster a face of certainty upon decisions that are anything but. Justice Brandeis once complained, “[T]he difficulty with this place is that if you’re only fifty-five percent convinced of a proposition, you have to act and vote as if you were one hundred percent convinced.”23 23.Brad Snyder, The Judicial Genealogy (and Mythology) of John Roberts: Clerkships from Gray to Brandeis to Friendly to Roberts, 71 Ohio State L.J.1149, 1188 n.235 (2010).Show More And Judge Patricia Wald noted the role that compromise on multi-judge panels plays in which issues are addressed and which conflicts are papered over: “[T]he opinion writer will usually strive to fashion a rationale that does not even discuss the disputed matter, or buries it in a coverall phrase like ‘other issues raised by the appellant do not merit further discussion.’”24 24.Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1378 (1995).Show More

This practice of ignoring conflict harms law students because the resulting opinions convey the impression that law leads to only one unquestionable result, that other avenues are foreclosed or impossible. Instead of asking readers of the opinion to marinate in the complexity or acknowledge the possible reasonable differences of opinion as to how the law should apply, the opinion provides one correct pathway from problem to solution. On occasion, a dissent is introduced, which problematizes the matter a bit, but in most casebooks, the introduction of this contrary voice is the exception rather than the rule.25 25.See infra notes 44–45 and accompanying text (discussing Justice Stevens’ partial concurrence and partial dissent in Illinois v. Wardlow).Show More

A student is left with the impression that to be a successful lawyer, to be able to predict what a judge would do when presented with a set of facts,26 26.See O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 460–61 (1897) (“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”).Show More she must discern what that one true result is in each case. This closes off her legal vision of all the different possible outcomes a set of facts could lead to. She risks becoming myopic in her view of what the law is and unimaginative in her thinking about what it could be.

The other certainty myth perpetrated by the study of opinions is the nature of the facts themselves. Appellate courts are arbiters of law, not fact, and usually accept the facts as they were determined by the trial court. The study of appellate opinions thus presents students with a view of facts as set and fixed and offers them little experience with conflicting witness testimony, fact investigation in the absence of established facts, or narrative framing—all essential parts of competent lawyering.27 27.See Todd D. Rakoff & Martha Minow, A Case for Another Case Method, 60 Vand. L.Rev. 597, 601 (2007) (“The opinions state ‘the facts.’ . . . [T]hese factual statements do little to equip students to navigate overlapping and diverging witness accounts, gaps in forensic material, disputes over significance levels in statistical studies, or the influence of a narrative frame.”).Show More

Just as a student must understand how factors other than the law influence outcomes, she must also know how to navigate a field of factual ambiguity and conflict. Appellate opinions prepare her to do little of this. They “hide, rather than display, how ‘facts’ are constructed and how more than one narrative can be consistent with ‘raw data.’”28 28.Id. at 601.Show More

With appellate opinions as her main lens into the legal world, she is left with a bereft “legal imagination.”29 29.Id. at 602 (“What [students] most crucially lack . . . is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills. And unless they acquire legal imagination somewhere other than in our appellate-case-method classrooms, they will be poorer lawyers than they should be.”).Show More A law student taught in this way has not been trained to see the possibilities in the ambiguities, the new combinations and legal worlds that can result when law or facts are unsettled. For it is often in that confusing, messy dust of ambiguous facts and ambiguous law that new legal galaxies can be born.30 30.See Edwards, supra note 17, at 892 (showing how the first sentence of the brief in Miranda v. Arizona—“We deal here with growing law”—framed established law as unsettled in order to push for a new path forward).Show More

C. Deifying the Judicial Worldview

A third harm wrought by the focus on judicial opinions is the centering of the judicial worldview and judicial voice in the students’ educational experience. At a time when they are entering the legal discourse community for the first time, students are taught that only the judge’s opinion matters, and that the judge’s thinking should be emulated.

This is problematic on a number of levels. First, that voice is often white and male and thus not fully representative of American society. Many of the “classic” cases students read in their required first-year classes are from the nineteenth or early twentieth century,31 31.See Pierson v. Post, 3 Cai. 175 (1805); Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (1928); Hawkins v. McGee, 84 N.H. 114 (1929); Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Commonwealth v. Welansky, 55 N.E.2d 902 (1944).Show More a time when women and people of color were rarely allowed to become lawyers, let alone judges. Even today, the vast majority of judges who sit on the federal bench are white or male or both.32 32.Danielle Root, Grace Oyenubi & Jake Faleschini, Building a More Inclusive Federal Judiciary, Ctr. for Am. Progress (Oct. 3, 2019), https://www.americanprogress.org/article/building-inclusive-federal-judiciary/ [https://perma.cc/2VQF-XJM7 ] (“[M]ore than 73 percent of sitting federal judges are men and 80 percent are white.”).Show More If students read only judicial opinions, they are immersed in an overwhelmingly white and male way of viewing the world.33 33.SeeThe U.S. Feminist Judgments Project: Rewriting Law From a Feminist Perspective, Univ. of Nev. L.V. William S. Boyd Sch. of L., https://law.unlv.edu/us-feminist-judgments [https://perma.cc/J5ZJ-TFYA] (last visited Feb. 11, 2022) (“The touchstone of the project is that the rewritten opinions must use the facts and precedent of the original opinion, but bring to the process of judging a feminist perspective that takes into account race, class, gender, disability and other status groups historically marginalized by the law.”); cf. Capers, supra note 11, at 31 (“The problem . . . is that the whiteness of the curriculum goes unsaid and unremarked upon.”).Show More

This is problematic not just because it is harmful to our female students and our students of color (and it is, and others have powerfully and passionately made this case).34 34.See Shaun Ossei-Owusu, For Minority Law Students, Learning the Law Can Be Intellectually Violent, ABA J. (Oct. 15, 2020, 11:23 AM), https://www.abajournal.‌com/voice/article/for_minority_law_students_learning_the_law_can_be_intellectually_violent [https://perma.cc/HA9Z-65AT] (noting that casebooks “are not teeming with race-conscious messaging” and that the learning of law for racial minorities can be “intellectually violent” because it is “unforgiving, can feel unrelenting and often goes unnamed”).Show More But it also means that students’ model for how to be a lawyer, how to think and write in this space, is tinted with that worldview. As a result, that worldview—which often does not see the injustices wrought by the current system—becomes their default, the legal voice in their heads.

Second, the judicial voice itself, even when that voice is spoken by a woman or person of color, usually normalizes and accepts the laws and the legal system as it exists. Judges see their work as weighing competing arguments and interests, neutrally determining the result, always with the well-being and integrity of the legal system in mind.35 35.SeeKronman, supra note 18, at 649–50, 653.Show More Some scholars have cast this as the saving grace of the case method, that students take on the judge’s “public-spirited attitude” and “care with new intensity about the good of the legal system and the community it represents.”36 36.Id. at 653.Show More

While this perspective is valuable, emphasizing the judicial voice comes at a cost. By asking students to emulate this voice, we are telling them to respect the boundaries, to prioritize consistency within doctrine, to learn how to preserve the status quo. We are dissuading them from making arguments that push the limits of the law, that incorporate different methods and different worldviews, that ask different questions than those allowed for by the law as it exists.

* * *

In short, the traditional case method, for all its benefits, risks freezing legal imaginations and draining young minds of their ability to see injustice and argue for wholesale change.

II. The Contextual Case Method and Teaching For Change

There are no easy solutions to this problem. The traditional case method has been decried for much of its century and a half of existence.37 37.Rubin, supra note 2, at 611 (“The great irony of modern legal education is that it is not only out of date, but that it was out of date one hundred years ago.”).Show More Yet it endures. And it endures because it does something valuable: it trains students in fundamental skills of rule identification and application, issue spotting, and analogical reasoning. These skills have value to practicing lawyers and can even be used to critique and advance law.38 38.Kennedy, supra note 10, at 595–96 (noting that these skills “represent a real intellectual advance” from students’ legal reasoning at the outset of their law school experience).Show More Yet pairing opinions with other materials would better prepare students to become more effective advocates and change agents.

Our proposal is simple: move from the traditional case method to a contextual case method. To do this, we must assign additional materials—perhaps other documents in the case, like briefs, or legal scholarship or non-legal writing that provide a different perspective on the questions answered in the opinion. We must surround the opinion with other voices, other arguments, other approaches, to open the students’ minds and allow them to envision other modes of legal argument or new frameworks for the law.

We are not the first to propose something along these lines. Some professors have made great strides in situating opinions in the broader context in which they emerged.39 39.See, e.g., Richard H. Chused, Cases, Materials and Problems in Property vii (3d ed. 2010) (calling his approach to Property “contextualist,” noting that “full understanding of legal materials is impossible without knowing about the context in which cases, rules and statutes develop”); Park, supra note 7, at 1 (describing a Property course that “show[s] how race has structured property and property law in America”); L. Danielle Tully, The Cultural (Re)Turn: The Case for Teaching Culturally Responsive Lawyering, 16 Stan. J. C.R. & C.L. 201, 237–44 (2020) (arguing that students should be taught “transformative legal analysis,” which uses analysis of briefs and other materials beyond law’s immediate sources to help students become more adept at articulating visions of what the law should be).Show More But we can do more. Many first-year law students still see their experiences reflected in the Introduction to this Essay; they feel hemmed in by opinions and unprepared to move beyond the status quo.

The contextual case method would instead teach students about new perspectives. It would acknowledge that legal decisions involve choices and offer students opportunities to recognize where these choices are made. Ultimately, it would allow students to sharpen their ability to see where some experiences and realities are relevant but nonetheless ignored in legal discourse and thus find spaces to advocate for change.

A. Putting Cases in Context

One way to encourage students’ legal imaginations is to expose them more often to the advocate’s role. Students are often introduced to legal opinions unaccompanied by lawyers’ briefs. This approach disconnects the lawyers’ work from the courts’ decision making; it fails to show how advocates’ efforts impacted the case. And it misses an opportunity to engage students, exposing them to the full breadth of arguments that advocates raise and offering an example of how they can fight for change.

Imagine that the 1L student is now in class and her professor has assigned students to read not only the opinions in Illinois v. Wardlow, but also excerpts of legal briefs filed in the case.40 40.528 U.S. 119 (2000).Show More There, the Court held that a Terry investigative police stop was supported by reasonable suspicion when an individual ran upon seeing police in an area that police described as known for narcotics trafficking.41 41.Id. at 125.Show More In reaching its decision, the Court acknowledged that people can flee from police for innocent reasons and that some people stopped lawfully pursuant to Terry may be innocent.42 42.Id.at 125–26.Show More Describing Terry stops as a “far more minimal intrusion” than an arrest based on probable cause, the Court pronounced that “Terry accepts the risk,” as does the broader Fourth Amendment.43 43.Id.Show More

Unlike the majority opinion, Justice Stevens’ opinion, in which he concurs in part and dissents in part, points out Court language in prior cases describing the severe intrusion even a brief stop can have upon an individual’s security.44 44.Id.at 127 (Stevens, J., concurring in part and dissenting in part) (noting the Supreme Court’s prior recognition that “‘Even a limited search . . . constitutes a severe, though brief, intrusion upon cherished personal security, and it must be an annoying, frightening, and perhaps humiliating experience.’” (quoting Terry v. Ohio, 392 U.S. 1, 24–25 (1968))); Wardlow, 528 U.S.at 127 n.1 (Stevens., J., concurring in part and dissenting in part) (“’[A] Terry frisk ‘is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and is not to be undertaken lightly.’” (quoting Terry, 392 U.S. at 17)).Show More In lengthy footnotes, Stevens goes on to describe police discrimination against racial minorities and demeaning practices in police stops that go beyond what is authorized by law.45 45.Id. at 132 n.7, 133 nn.8 & 10 (Stevens, J., concurring in part and dissenting in part).Show More Textbooks often include both opinions, and reading them in tandem offers students an opportunity to recognize some of the tensions in the case and to have a glimpse beyond the majority’s neat framing of the issues and recitation of the facts.

But the briefs add even more depth. There, the student is introduced to the competing arguments that the lawyers put before the Court for its consideration before the case was decided. The opinions are no longer cast as mere statements of judges’ reasoning, but as products of an adversary process: Amicus raised the issue of widespread police harassment of African Americans and other minorities.46 46.Brief for the NAACP Legal Def. & Educ. Fund, Inc. as Amicus Curiae in Support of Respondent, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 606996, at *9–21.Show More By contrast, the prosecution described police harassment as “isolated incidents” of a few “rogue police officers.”47 47.Reply Brief for Petitioner, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 712587, at *14.Show More

The briefs also offer a broader view into the Court’s decision-making process, revealing arguments that advocates made to the Court that it chose not to discuss. One criticism of the Wardlow decision is that “high crime areas” are not well defined nor geographically limited, or subject to certain requirements.48 48.See, e.g., Ben Frunwald & Jeffrey Fagan, The End of Intuition-Based High Crime Areas, 107 Cal. L. Rev. 345, 396 (2019) (finding that designations of high crime areas are only weakly correlated with actual crime rates, and the racial composition of a neighborhood and the race of officers are strong predictors of whether police designate an area as high crime).Show More Following Wardlow, police can label many areas as high crime and then rely on the ambiguous fact of defendant’s flight alone to establish reasonable suspicion. Justice Stevens noted in his opinion that the facts in Wardlow’s case do not explain what the specific circumstances were on the street when Wardlow was stopped or whether he actually was in an area that had been labeled as high crime.49 49.See Wardlow, 528 U.S. at 138–39 (Stevens, J., concurring in part and dissenting in part).Show More But beyond that, there is no mention of these concerns in the Wardlow opinions.

While students reading just the Wardlow opinions may assume that potential police abuse of the high crime area designation to bolster otherwise weak claims of reasonable suspicion is an issue that the Court simply did not anticipate, the briefs reveal otherwise. Respondent, in his brief, warns of this very issue, yet the Court chose to offer no guidance in its opinion about what qualifies as a high crime area and how these designations are to be made.50 50.Brief for Respondent, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 607000, at *31–36 (arguing that a high crime area should be sufficiently localized to ensure that an individual’s privacy expectations are not subject to unfettered police discretion).Show More Knowing that a lawyer raised these issues before the Court adds important context to the Court’s decision, revealing a concern that went ignored in that case, but may provide a fruitful avenue for argument in the future. Additionally, in reading the briefs and recognizing what went unsaid, a student may realize that they need to look beyond the opinion to determine the complex motivations and interests that really drove a court’s decision.

B. Acknowledging Law’s Rhetorical Nature

Once a student has a clearer sense of the arguments that were before the Court, she can better see the choices underlying legal decisions that are often presented as certainties in legal opinions. A declarative statement of truth may be exposed as the Court’s choice to embrace a familiar worldview and disregard a less familiar one. A clear fact may be revealed as one possible interpretation of the evidence that aligns with a particular bias.

After reading the opinions in Wardlow, the student continues to struggle to articulate why she believes the Court’s decision was in error. The majority opinion states that determinations of reasonable suspicion must be “based on commonsense judgments and inferences about human behavior.”51 51.Wardlow, 528 U.S. at 119 (citation omitted).Show More The Court then concludes that the police were justified in suspecting that Wardlow—who ran upon noticing police while in what was deemed a high crime area—was involved in criminal activity.52 52.Id.at 120.Show More The decision is presented as a clean application of law to facts.

The majority’s use of the word “commonsense” makes the conclusion that follows seem like an inevitable result; it suggests that there is only one way for the Court to reasonably consider these facts. Thus, this language serves to legitimize one possibility—flight from police is suggestive of guilt—while labeling another as aberrant or unusual. But flight from police could just as easily be a fearful response, a point made in the briefs and picked up in Justice Stevens’ opinion.53 53.Justice Stevens discusses this alternative perspective in Wardlow, noting that for some citizens, including minorities and those residing in high crime areas, there is a possibility that their flight is entirely innocent and motivated by fear. Wardlow, 528 U.S. at 132–34 (Stevens, J., concurring in part and dissenting in part) (stating that “[f]or such a person, unprovoked flight is neither ‘aberrant’ nor ‘abnormal’” and “evidence . . . too pervasive to be dismissed as random or rare”).Show More

The student is heartened in class to have a discussion of how the Court’s writing choices are masking uncertainties in the case. While the Court has made the choice to present its conclusion in a definitive manner, the facts are not as clear as the majority’s writing suggests: The “fact” that the defendant was running from police is based on a few police accounts of where the defendant was looking and an assumption that he recognized the police.54 54.See id. at 138 (Stevens, J., concurring in part and dissenting in part); see also id. at 139 n.17. Justice Stevens notes that the police may have been traveling in unmarked cars and it is unclear how many were wearing uniforms, further complicating the matter.Id. at 138.Show More And details about the area in which Wardlow was stopped are not settled, leaving readers to construct their own image of the setting of a high crime area and Wardlow’s placement within it in their own mind.55 55.The Court in Wardlow relies heavily upon the image of a “high crime area,” even starting the opinion with the sentence “Respondent Wardlow fled upon seeing a caravan of police vehicles converge on an area of Chicago known for heavy narcotics trafficking.” Notably little description is provided in the Court’s opinion about why the area was thought to be a high crime area and how the location actually appeared when the police arrived. It would seem important to know whether there was a crowd, if the area seemed rampant with crime, and whether there was drug paraphernalia scattered in the streets or if Wardlow was standing alone on a quiet street. The Court leaves much of the meaning of “high crime area” to the reader’s imagination. Seeid. at 139 (noting the “absence of testimony that anyone else was nearby when respondent began to run”); Brief for Respondent, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 607000, at *34–35 (noting that in Wardlow the Court was presented with a “vast, undefined, heavily populated area,” “a neighborhood of nearly 100,000 people,” and observing that “regardless of the neighborhood’s high level of crime, large numbers of innocent persons still live and work there”).Show More

Briefs offer an alternative reality, a different worldview, that the majority decided not only to reject but to hide through its writing. Amicus raise the issues of police misconduct and harassment of minorities and cite to examples of stops and frisks that go well beyond the scope of even lawful arrests. Here, a view of the encounter is presented from the defendant’s perspective—offering another explanation for the defendant’s flight.56 56.See Brief for the NAACP Legal Def. & Educ. Fund, Inc. as Amicus Curiae in Support of Respondent, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 606996, at *9 (arguing that widespread fear of police encounters is a significant factor relevant to understanding why inner-city African Americans would flee from police); see alsoWardlow, 528 U.S. at 132 (Stevens, J., concurring in part and dissenting in part) (noting the possibility that fleeing can be entirely innocent based on a belief that contact with police can itself be dangerous).Show More

Confronted with these arguments, the majority chose nonetheless to describe Terry stops as a “far more minimal intrusion, simply allowing the officer to briefly investigate further.”57 57.Wardlow, 528 U.S. at 126.Show More While the brief pointed to instances of harassment specific to minorities, the Court spoke of the law’s acceptance of the risk that police may stop innocent people, suggesting that this burden is equally shared. Even more the very use of the term “high crime area” denies the possibility that arrest rates may be impacted by racially discriminatory police practices.

Briefs thus expose the rhetoric within court opinions, which changes the way that students see the law. The 1L student is learning not just what the law is, but how to pierce through the surface of the opinion and get a better sense of how human biases and other external factors may influence legal decision making. Briefs lay bare the opinion’s rhetorical nature, its papering over of conflict, its reliance on factors outside the law to reach its conclusion. And in revealing discrete choices underlying decisions, they make opinions seem more vulnerable to critique, smaller, less certain—and therefore able to be changed.

C. Elevating Other Experiences

Once students better understand the advocates’ role and can identify choices that judges make in the legal decision-making process, they should have a better understanding of where they can focus their advocacy. They should be able to see how a judge’s sense of how the world works can influence legal decisions and appreciate the connection between raising awareness of other perspectives and creating change. They can begin to see the value of learning about other people’s experiences and finding ways to bring those experiences to their important work as lawyers.

But these experiences so often do not find their way into legal opinions. And, in turn, experiences beyond the judge’s worldview are diminished in the law school classroom as well. Even if most legal opinions do not recognize all voices and embrace every experience, it is important that these voices have a place in our teaching about the law. Offering room for these ignored perspectives not only makes our classrooms more inclusive, but it allows our students to gain a broader understanding of the challenges faced by others that are too often ignored. Law schools should expose law students to outside perspectives so they can begin to see where they are important to legal issues, but nonetheless absent in the law.58 58.The focus of the discussion here is on the importance of exposing students to the legal briefs surrounding decisions. But students also should be encouraged to read, and even engage in, other legal writing that critiques and challenges the law. While theory and practice are often seen as competing areas of focus in legal education, it is important for students to be taught how these two forms of advocacy complement one another. Legal scholarship can help lawyers see the law in new ways, articulate the problems that specific laws create, and develop strategies to overcome them. Moreover, students should be introduced to scholarly writing as an opportunity to challenge the law and to argue for ways to improve it.Show More

Briefs can shine a light on experiences that a court may not only disfavor, but also fail to acknowledge or engage. When available, dissenting and concurring opinions may offer a hint at this perspective cast in the framing of the non-winning argument. Briefs can do more, offering a perspective from a more equitable position as a competing argument in the case. When professors emphasize the briefs, they bring these hidden narratives to the forefront, elevating those voices so often silenced in the legal process.

In Wardlow, for example, Amicus put forth the argument that police treat African Americans and other minorities more harshly than their white counterparts and raised the possibility that African Americans may be motivated to run from police out of fear rather than guilt. To support their claim, Amicus not only cited to legal cases but also to studies, investigations, scholarly articles, news reports, and even literature, to shed light on the nature and scope of police racial discrimination and violence.59 59.See generallyBrief for the NAACP Legal Def. & Educ. Fund, Inc. as Amicus Curiae in Support of Respondent, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 606996.Show More As discussed above, this argument was not successful there and went largely unacknowledged in the majority opinion.

In a more recent case, however, a Massachusetts trial court considered the experiences of African Americans in its legal analysis and limited the weight it gave to a defendant’s flight in its assessment of reasonable suspicion.60 60.See Commonwealth v. Warren, 58 N.E. 3d 333, 342 (Mass. 2016) (citing to a local (Boston) police department report documenting a pattern of racial profiling and concluding that a Black man approached by police “might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity,” and noting that a judge should consider the report’s findings in weighing flight as a factor for reasonable suspicion); see alsoUnited States v. Lewis, 295 F. Supp. 3d 1103, 1113 (C.D. Cal. 2018) (citing to Warren and giving no more than “scant weight” to the defendant’s decision not to wave at or greet a border patrol officer).Show More A 1L student who is introduced to these arguments and exposed to that legal opinion will see a modest example of how other forms of advocacy outside of the courtroom can lead to change within. But a student who is familiar with the briefs from Wardlow will also be able to appreciate the connection between lawyers’ long fought efforts to expand the discussion beyond the courts’ narrow worldview and a judge’s choice many years later to acknowledge the existence and impact of “racial profiling” and the “reality for black males in the city of Boston.”61 61.SeeWarren, 58 N.E. 3d at 342.Show More

Conclusion

Despite the legitimate complaints about legal education—and there are many—no lawyer disputes that the first year of law school is transformative. One’s pathway through problems is reoriented to a more rule-based, logical approach.

Yet, at the same time, the traditional case method trains students in a form of thinking that denies alternate realities of how the world works and closes off new visions of how it could be. It asks students to accept the law as it is and does not encourage them to midwife a new legal world into being.

Opinions tell stories of human tragedy often without acknowledging the suffering. They seem to rely only on rules without acknowledging the non-legal drivers of the result. They put a veneer of certainty on a world of complexity. They privilege the speaker—the judge—and make him (and it is usually a him) seem like the unbiased arbiter of purely legal questions. And they make the law seem set in amber, insulated from the prospect of radical change.

But it does not have to be this way. If we moved beyond opinions—especially in the core first-year courses—by deconstructing their rhetorical nature, by surrounding them with other arguments and perspectives, we could pair the valuable thinking-like-a-lawyer training in what the law is with visions of what law could be and examples of how to advocate for that change. It might require paring back topics, going deeper into certain subject matters, and leaving others out altogether. But this is a worthwhile trade, if the end result is law students who become lawyers who change the system from the inside out.

  1. Tiffany D. Atkins, #Fortheculture: Generation Z and the Future of Legal Education, 26 Mich. J. Race & L

    .

    115, 127–32 (2020) (describing Gen Z and noting that “many . . . consider themselves activists”). ↑

  2. See Edward Rubin, What’s Wrong with Langdell’s Method, and What to Do About It, 60 Vand. L. Rev

    .

    609, 616 (2007) (describing Langdell’s focus on the common law as “real law” and insistence that the first year be composed of mandatory common-law courses). ↑

  3. Commonwealth v. Welansky, 55 N.E.2d 902, 907 (1944); Jack Thomas, The Cocoanut Grove Inferno: 50 Years Ago This Week, 492 Died in a Tragedy for the Ages, Bos. Globe, Nov. 22, 1992. ↑

  4. Hawkins v. McGee, 84 N.H. 114, 115 (1929). ↑

  5. See Elizabeth Mertz, Inside the Law School Classroom: Toward a New Legal Realist Pedagogy, 60 Vand. L. Rev. 483, 506 (2007) (observing law school classrooms and finding that the class discussions require students to “distance [themselves] from everyday contexts and meanings, and to concentrate upon abstract cognitive features of the environment” (quoting William M. Sullivan et al., The Carnegie Found. for the Advancement of Teaching, Educating Lawyers: Preparation for the Profession of Law (2007))). ↑

  6. See Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev

    .

    1631, 1664–67 (2020). ↑

  7. See K-Sue Park, Conquest and Slavery in the Property Law Course: Teaching Notes (Jul. 24, 2020) (Geo. L. Fac. Publ’ns & Other Works) (manuscript at 3–5), https://ssrn.com/abstract=3659947 [https://perma.cc/MX5M-3U47]. ↑

  8. See Mertz, supra note 5, at 504 (finding that the legal analytical process “is capable of devouring all manner of social detail, but without budging in its core assumptions”); see also Robert W. Gordon, Unfreezing Legal Reality: Critical Approaches to Law, 15 Fla. State Univ. L. Rev

    .

    195, 215 (1987) (“[T]he discourse of courts and lawyers . . . constantly, subtly, almost unconsciously, keeps privileging one possible set of regulatory policies—one possible view of the world—as natural, normal, rational, free, efficient, and usually OK and just.”). ↑

  9. We borrow the term “legal imagination” from the great James Boyd White. See James Boyd White, The Legal Imagination (1985). ↑

  10. See, e.g., Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal Educ. 591, 591 (1982) (“Because students believe what they are told, explicitly and implicitly, about the world they are entering, they behave in ways that fulfill the prophecies the system makes about them and about that world.”); cf. Lucille A. Jewel, Old-School Rhetoric and New-School Cognitive Science: The Enduring Power of Logocentric Categories, 13 Legal Commc’n & Rhetoric 39, 41 (2016) (noting that traditional legal reasoning is like “infrastructure,” in that “we do not see it, we take it for granted, and we do not stop to critically consider its role”). ↑

  11. See, e.g., Kennedy, supra note 10, at 614 (putting forth a “utopian proposal” that restructures the law school to mandate a doctrine course, a clinical program, an interdisciplinary course, and a flexible third year); Gerald P. López, Transform–Don’t Just Tinker With–Legal Education (Part II), 24 Clinical L. Rev. 247, 346–47 (2018) (arguing that law schools should ban the Socratic case method altogether); Bennett Capers, The Law School as a White Space, 106 Minn. L. Rev

    .

    7, 47–55 (2021) (describing a vision of what a truly inclusive law school would look like). ↑

  12. Capers, supra note 11, at 32. ↑

  13. See Rubin, supra note 2, at 649 (“The traditional curriculum provides students with one experience—intensive questioning about the reasoning of judicial decisions.”). ↑

  14. See Gordon, supra note 8. ↑

  15. Jerome Frank, Why Not a Clinical-Lawyer School?, 81 U. Penn. L. Rev. 907, 910 (1933). ↑

  16. Id. ↑

  17. See id.; see also Linda H. Edwards, Once Upon a Time in Law: Myth, Metaphor, and Authority, 77 Tenn. L. Rev

    .

    883, 884 (2010) (“[W]hen we talk about legal authority, using the logical forms of rules and their bedfellows of analogy, policy, and principle, we are actually swimming in a sea of narrative, oblivious to the water around us.”). ↑

  18. See, e.g., Anthony Kronman, The Socratic Method and the Development of the Moral Imagination, 31 U. Toledo L. Rev. 647, 648 (2000) (describing traditional justifications for the case method, including that it helps students learn legal doctrine, gives students a feel for “boundary problems,” and provides them with experience in applying law to concrete problems); see also Russell L. Weaver, Langdell’s Legacy: Living with the Case Method, 36 Vill.

     

    L. Rev. 517, 547–61 (1991) (listing various reasons for adhering to the case method). ↑

  19. See, e.g., Kennedy, supra note 10, at 595–96. ↑

  20. See, e.g., Linda H. Edwards, Where Do the Prophets Stand? Hamdi, Myth, and the Master’s Tools, 13 Conn. Pub. Int. L.J. 43, 52 (2013) (“[F]rom before the first moment of becoming aware of an event, we have already assumed a perspective, most likely by fitting the facts into a familiar narrative pattern. The question is not whether we see the world through the lens of a story, but which story lens we will use.”). ↑

  21. See Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1997, 2002 (2017) (explaining how structural biases and presumptions about police competence “likely pushed judges to systematically overvalue police knowledge”). ↑

  22. Frank, supra note 15, at 919 (quoting Judge Crane of the New York Court of Appeals). ↑

  23. Brad Snyder, The Judicial Genealogy (and Mythology) of John Roberts: Clerkships from Gray to Brandeis to Friendly to Roberts, 71 Ohio State L.J.

     

    1149, 1188 n.235 (2010). ↑

  24. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev

    .

    1371, 1378 (1995). ↑

  25. See infra notes 44–45 and accompanying text (discussing Justice Stevens’ partial concurrence and partial dissent in Illinois v. Wardlow). ↑

  26. See O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 460–61 (1897) (“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”). ↑

  27. See Todd D. Rakoff & Martha Minow, A Case for Another Case Method, 60 Vand. L.

     

    Rev. 597, 601 (2007) (“The opinions state ‘the facts.’ . . . [T]hese factual statements do little to equip students to navigate overlapping and diverging witness accounts, gaps in forensic material, disputes over significance levels in statistical studies, or the influence of a narrative frame.”). ↑

  28. Id. at 601. ↑

  29. Id. at 602 (“What [students] most crucially lack . . . is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills. And unless they acquire legal imagination somewhere other than in our appellate-case-method classrooms, they will be poorer lawyers than they should be.”). ↑

  30. See Edwards, supra note 17, at 892 (showing how the first sentence of the brief in Miranda v. Arizona—“We deal here with growing law”—framed established law as unsettled in order to push for a new path forward). ↑

  31. See Pierson v. Post, 3 Cai. 175 (1805); Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (1928); Hawkins v. McGee, 84 N.H. 114 (1929); Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Commonwealth v. Welansky, 55 N.E.2d 902 (1944). ↑

  32. Danielle Root, Grace Oyenubi & Jake Faleschini, Building a More Inclusive Federal Judiciary, Ctr. for Am. Progress (Oct. 3, 2019), https://www.americanprogress.org/article/building-inclusive-federal-judiciary/ [https://perma.cc/2VQF-XJM7 ] (“[M]ore than 73 percent of sitting federal judges are men and 80 percent are white.”). ↑

  33. See The U.S. Feminist Judgments Project: Rewriting Law From a Feminist Perspective, Univ. of Nev. L.V. William S. Boyd Sch. of L., https://law.unlv.edu/us-feminist-judgments [https://perma.cc/J5ZJ-TFYA] (last visited Feb. 11, 2022) (“The touchstone of the project is that the rewritten opinions must use the facts and precedent of the original opinion, but bring to the process of judging a feminist perspective that takes into account race, class, gender, disability and other status groups historically marginalized by the law.”); cf. Capers, supra note 11, at 31 (“The problem . . . is that the whiteness of the curriculum goes unsaid and unremarked upon.”). ↑

  34. See Shaun Ossei-Owusu, For Minority Law Students, Learning the Law Can Be Intellectually Violent, ABA J. (Oct. 15, 2020, 11:23 AM), https://www.abajournal.‌com/voice/article/for_minority_law_students_learning_the_law_can_be_intellectually_violent [https://perma.cc/HA9Z-65AT] (noting that casebooks “are not teeming with race-conscious messaging” and that the learning of law for racial minorities can be “intellectually violent” because it is “unforgiving, can feel unrelenting and often goes unnamed”). ↑

  35. See Kronman, supra note 18, at 649–50, 653. ↑

  36. Id. at 653. ↑

  37. Rubin, supra note 2, at 611 (“The great irony of modern legal education is that it is not only out of date, but that it was out of date one hundred years ago.”). ↑

  38. Kennedy, supra note 10, at 595–96 (noting that these skills “represent a real intellectual advance” from students’ legal reasoning at the outset of their law school experience). ↑

  39. See, e.g., Richard H. Chused, Cases, Materials and Problems in Property vii (3d ed. 2010) (calling his approach to Property “contextualist,” noting that “full understanding of legal materials is impossible without knowing about the context in which cases, rules and statutes develop”); Park, supra note 7, at 1 (describing a Property course that “show[s] how race has structured property and property law in America”); L. Danielle Tully, The Cultural (Re)Turn: The Case for Teaching Culturally Responsive Lawyering, 16 Stan. J. C.R. & C.L. 201, 237–44 (2020) (arguing that students should be taught “transformative legal analysis,” which uses analysis of briefs and other materials beyond law’s immediate sources to help students become more adept at articulating visions of what the law should be). ↑

  40. 528 U.S. 119 (2000). ↑

  41. Id. at 125. ↑

  42. Id. at 125–26. ↑

  43. Id. ↑

  44. Id. at 127 (Stevens, J., concurring in part and dissenting in part) (noting the Supreme Court’s prior recognition that “‘Even a limited search . . . constitutes a severe, though brief, intrusion upon cherished personal security, and it must be an annoying, frightening, and perhaps humiliating experience.’” (quoting Terry v. Ohio, 392 U.S. 1, 24–25 (1968))); Wardlow, 528 U.S. at 127 n.1 (Stevens., J., concurring in part and dissenting in part) (“’[A] Terry frisk ‘is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and is not to be undertaken lightly.’” (quoting Terry, 392 U.S. at 17)). ↑

  45. Id. at 132 n.7, 133 nn.8 & 10 (Stevens, J., concurring in part and dissenting in part). ↑

  46. Brief for the NAACP Legal Def. & Educ. Fund, Inc. as Amicus Curiae in Support of Respondent, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 606996, at *9–21. ↑

  47. Reply Brief for Petitioner, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 712587, at *14. ↑

  48. See, e.g., Ben Frunwald & Jeffrey Fagan, The End of Intuition-Based High Crime Areas, 107 Cal. L. Rev. 345, 396 (2019) (finding that designations of high crime areas are only weakly correlated with actual crime rates, and the racial composition of a neighborhood and the race of officers are strong predictors of whether police designate an area as high crime). ↑

  49. See Wardlow, 528 U.S. at 138–39 (Stevens, J., concurring in part and dissenting in part). ↑

  50. Brief for Respondent, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 607000, at *31–36 (arguing that a high crime area should be sufficiently localized to ensure that an individual’s privacy expectations are not subject to unfettered police discretion). ↑

  51. Wardlow, 528 U.S. at 119 (citation omitted). ↑

  52. Id. at 120. ↑

  53. Justice Stevens discusses this alternative perspective in Wardlow, noting that for some citizens, including minorities and those residing in high crime areas, there is a possibility that their flight is entirely innocent and motivated by fear. Wardlow, 528 U.S. at 132–34 (Stevens, J., concurring in part and dissenting in part) (stating that “[f]or such a person, unprovoked flight is neither ‘aberrant’ nor ‘abnormal’” and “evidence . . . too pervasive to be dismissed as random or rare”). ↑

  54. See id. at 138 (Stevens, J., concurring in part and dissenting in part); see also id. at 139 n.17. Justice Stevens notes that the police may have been traveling in unmarked cars and it is unclear how many were wearing uniforms, further complicating the matter. Id. at 138. ↑

  55. The Court in Wardlow relies heavily upon the image of a “high crime area,” even starting the opinion with the sentence “Respondent Wardlow fled upon seeing a caravan of police vehicles converge on an area of Chicago known for heavy narcotics trafficking.” Notably little description is provided in the Court’s opinion about why the area was thought to be a high crime area and how the location actually appeared when the police arrived. It would seem important to know whether there was a crowd, if the area seemed rampant with crime, and whether there was drug paraphernalia scattered in the streets or if Wardlow was standing alone on a quiet street. The Court leaves much of the meaning of “high crime area” to the reader’s imagination. See id. at 139 (noting the “absence of testimony that anyone else was nearby when respondent began to run”); Brief for Respondent, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 607000, at *34–35 (noting that in Wardlow the Court was presented with a “vast, undefined, heavily populated area,” “a neighborhood of nearly 100,000 people,” and observing that “regardless of the neighborhood’s high level of crime, large numbers of innocent persons still live and work there”). ↑

  56. See Brief for the NAACP Legal Def. & Educ. Fund, Inc. as Amicus Curiae in Support of Respondent, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 606996, at *9 (arguing that widespread fear of police encounters is a significant factor relevant to understanding why inner-city African Americans would flee from police); see also Wardlow, 528 U.S. at 132 (Stevens, J., concurring in part and dissenting in part) (noting the possibility that fleeing can be entirely innocent based on a belief that contact with police can itself be dangerous). ↑

  57. Wardlow, 528 U.S. at 126. ↑

  58. The focus of the discussion here is on the importance of exposing students to the legal briefs surrounding decisions. But students also should be encouraged to read, and even engage in, other legal writing that critiques and challenges the law. While theory and practice are often seen as competing areas of focus in legal education, it is important for students to be taught how these two forms of advocacy complement one another. Legal scholarship can help lawyers see the law in new ways, articulate the problems that specific laws create, and develop strategies to overcome them. Moreover, students should be introduced to scholarly writing as an opportunity to challenge the law and to argue for ways to improve it. ↑

  59. See generally Brief for the NAACP Legal Def. & Educ. Fund, Inc. as Amicus Curiae in Support of Respondent, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 606996. ↑

  60. See Commonwealth v. Warren, 58 N.E. 3d 333, 342 (Mass. 2016) (citing to a local (Boston) police department report documenting a pattern of racial profiling and concluding that a Black man approached by police “might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity,” and noting that a judge should consider the report’s findings in weighing flight as a factor for reasonable suspicion); see also United States v. Lewis, 295 F. Supp. 3d 1103, 1113 (C.D. Cal. 2018) (citing to Warren and giving no more than “scant weight” to the defendant’s decision not to wave at or greet a border patrol officer). ↑

  61. See Warren, 58 N.E. 3d at 342. ↑

The Gender Participation Gap and the Politics of Pedagogy

“When it comes to silencing women, Western culture has had thousands of years of practice.”

–Mary Beard1 1.Mary Beard, Women & Power: A Manifesto, at xi (2017).Show More

Introduction

“Speak Up” and similar studies documented something that many thought they already knew about large law school classes: Male students talk a heck of a lot more than female students do. A recent study of the University of Virginia School of Law2 2.Molly Shadel, Sophie Trawalter & J.H. Verkerke, Gender Differences in Law School Classroom Participation: The Key Role of Social Context, 108 Va. L. Rev Online 30 (2022).Show More adds important nuance to this observation. The gender participation gap is not set in stone but responds to, among other things, shifts in pedagogy. For example, the gap expands when professors achieve participation by calling on the students who volunteer to answer questions at the moment they are posed, and it retracts when professors use a system for choosing in advance the students on whom they will call.3 3.The participation gap closes as well when class size is smaller, and it seems to be driven by concerns that the student who speaks will be the recipient of backlash. Therefore, one may hypothesize that the gap will close if the threat of backlash is removed. Seeid at 43–45.Show More Some readers may construe this finding to be an endorsement of the law-teaching technique known as the Socratic Method, an umbrella title bestowed on a motley collection of question-and-answer strategies used by law professors for the last century or so, including the technique of “cold-calling.”4 4.Cold-calling occurs when an instructor directs questions about assigned readings, which in large law school classes invariably consist of appellate cases, to a student whose hand is not raised and who has not been given advance notice that they will be put on the spot. Cold-calling varies in intensity in terms of the length of time the student remains on call and the complexity of the professor’s questioning, which may range from the factual to the procedural to the doctrinal to the political to the ethical.Show More Were it correct, this takeaway from the University of Virginia study would be a painful irony for the numerous women who have reported over the years that the Method, particularly a version that relies heavily on cold-calling, fosters a classroom “dynamic in which they feel that their voices were ‘stolen’ from them.”5 5.See Lani Guinier, Michelle Fine, Jane Balin, Ann Bartow & Deborah Lee Stachel, Becoming Gentlemen: Women’s Experiences at One Ivy League Law School, 143 U. Pa. L. Rev. 1, 4 (1994).Show More

As we read it, however, the University of Virginia study comes neither to praise nor to bury the Socratic Method and its cold-calling kin. Instead, the study reveals only that professors may help to shrink the gender gap by using a participation method that does not depend solely on the alacrity of student volunteers.6 6.See Shadel et al., supra note 2, at 40.Show More Cold-calling is one such method, but there are many others that law professors could adopt. Since that is the case, our agenda in this Essay is to provoke a conversation about the value of retaining cold-calling at all. Like other law professors, we have found cold-calling to be an ineffective way of teaching important topics with which some students—and, surely, some instructors too—have had painful experiences. If cold-calling impedes the teaching of materials in which many of us have the deepest interest and investment, why would we continue to use it?

For purposes of this initial foray, we assume that it is beneficial for women law students to participate in the classroom discussion, just as it is for law students who happen to be men or to be non-binary. In some cultures and contexts, talking and being heard might not be the preserve of the powerful. Instead, silence may be that which confers authority and prestige. However, in our legal profession and myriad other contemporary locations where momentous decisions are made—places ranging from the Oval Office to the boardroom to the factory floor—effective participation in public discourse is all but synonymous with political muscle.7 7.See Beard, supra note 1, at i–xi.Show More Although public speech may no longer be the sine qua non of masculinity, the gender participation gap reveals that it still tends to “be the business of men”8 8.See id. at 4.Show More and not of women. Therefore, the University of Virginia study demands that—once again—we inspect and resist pedagogical strategies and communication conventions that mute women’s voices and diminish their power in the public sphere.

The Essay proceeds as follows. We start by sketching the emergence of the cold-calling version of the Socratic Method as the dominant pedagogy in American legal education. Next, we invite readers to contemplate the challenge of using cold-calling to teach hurtful material, with specific examples drawn from teaching the law of rape. We conclude with some thoughts about how to teach such topics, based both on the data from the University of Virginia study and our own classroom experiences. In short, we offer the Essay as an agenda for future work that we hope will be done by the authors of the University of Virginia study and other commentators.

I. A Very Brief History of the Socratic Method in Law Teaching

According to received wisdom, most law schools in the United States today use some form of the Socratic Method, particularly in first-year classes.9 9.SeeWilliam M. Sullivan, Ann Colby, Judith Welch Wegner, Lloyd Bond & Lee S. Shulman, Educating Lawyers: Preparation for the Profession of Law 47 (2007); see alsoEdwin W. Patterson, The Case Method in American Legal Education: Its Origins and Objectives, 4. J. Legal Educ. 1, 17 (1951) (describing the key features of the Socratic Method). As William Sullivan and his colleagues declare in their report for the Carnegie Foundation for the Advancement of Teaching, the “case-dialogue method” is the “signature pedagogy” through which law schools induct new members into the field. Sullivan et al., supra, at 23–24.Show More Said to be the brainchild of Christopher Columbus Langdell, this dominant pedagogy could be, and has been, given a number of different labels, including the Socratic Method, the Case Method, the Langdell Method, and (most hilariously) the Scientific Method.10 10.See Patterson, supra note 9, at 2; Jeannie Suk Gerson, The Socratic Method in the Age of Trauma, 130 Harv. L. Rev. 2320, 2321 (2017).Show More Whatever handle you prefer, key features of the Method are said to be derived from a mode of disruptive teaching first used by Socrates in ancient Greece.11 11.See, e.g.,The Collected Dialogues of Plato 353, 359 (Edith Hamilton & Huntington Cairns eds., W.K.C. Guthrie trans., 1973) (excerpting a dialogue between Socrates and Meno). If our word allotment and time allowed, we might venture to describe the episodes in Socrates’s life and work that are relevant to the legal pedagogy with which his name is associated. However, we happily ditched that plan entirely after reading one expert’s warning that securing any image of Socrates is “difficult,” even “impossible, or at least as baffling as trying to depict an elf wearing a hat that makes him invisible.” See Soren Kierkegaard, The Concept of Irony, With Constant Reference to Socrates 50 (Lee M. Capel trans., 1965).Show More Langdell allegedly introduced the Method to law schools in 1870, and, depending on which source you read, the Method transformed law teaching with the speed either of wildfire or of molasses in winter.12 12.In a speech he gave at Harvard College’s Phillips Brooks House, K.N. Llewellyn noted that it took several decades for Langdell’s “genius” to “dent his guild” even though his pedagogy carried over many of the outworn traditions against which he himself “had rebelled.” SeeK.N. Llewellyn, On What Is Wrong with So-Called Legal Education, 35 Colum. L. Rev. 651, 661 (1935). See also Suk Gerson, supra note 10, at 2323–24.Show More Since the authorship and ascendancy of the Method are among the legal academy’s foundational myths, we here offer only a brief account of its arrival, together with anecdotal material that suggests that the coming of women law students created anxiety for the Method’s most prominent practitioners and promoters, not to mention for the women themselves.

Back in the dark days—before Harvard Law School got its act together and laid down the pedagogical law—men who desired to join the bar could travel there by more than one route. The avenues included self-directed reading and study of well-regarded legal treatises and, for those who could not buy or borrow a book, service as an apprentice to a member of the bar who had treatises of his own.13 13.Charles R. McManis, The History of First Century American Legal Education: A Revisionist Perspective, 59 Wash. U. L.Q. 597, 601–03 (1981); seealso D. Kelly Weisberg, Barred from the Bar: Women and Legal Education in the United States 1870–1890, 28 J. Legal Educ. 485, 485 (1977) (citing Chroust, The Rise of the Legal Profession in America 173 (1965)) (describing four ways colonial Americans could pursue legal education).Show More For now, we will leave unfocused the toils of the legal apprentice14 14.As is true of so many other subjects political and legal, Thomas Jefferson had something to say—and, yes, it was critical—about “the apprentice system of legal training in which he had been schooled.” McManis, supra note 13, at 604 (quoting a private letter in which Jefferson said that a legal apprenticeship “was rather a prejudice than a help”). John Adams also had bad things to say about his legal apprenticeship. See Gerard W. Gawalt, Massachusetts Legal Education in Transition, 1766–1840, 17 Am. J. Legal Hist. 27, 32 (1973).Show More as our plot commences with the creation of formal law schools and the emergence of a pedagogy that was “‘intended to exclude the traditional methods of learning law by work in a lawyer’s office, or attendance upon the proceedings of courts of justice.’”15 15.Jerome Frank, What Constitutes a Good Legal Education?, 19 ABA J. 723, 723 (1933) (citing Centennial History of the Harvard Law School 231 (Harv. L. Sch. Ass’n 1918)).Show More According to one historian of the legal profession, these developments had the effect of preserving for the “best men” the “best professional opportunities.”16 16.See Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 14–39 (1976).Show More Apart from a few conspicuous exceptions, the “best men” were wealthy, white, and Christian.17 17.See id. at 29.Show More

The earliest law schools were proprietary. These academies provided students with the opportunity to learn the law not by reading books all on their own, but by attending lectures, “which frequently amounted to little more than a professor standing before a class reading one or two chapters from a legal treatise and which, even in the hands of a brilliant scholar, often left the majority of students in dazed incomprehension.”18 18.Anthony Chase, The Birth of the Modern Law School, 23 Am. J. Legal Hist. 329, 336–37 (1979).Show More The first and most famous proprietary school was the Litchfield Law School, which was founded by Tapping Reeve in 1784 and which allowed him to supervise the increasing number of young men who sought to apprentice themselves to him.19 19.SeeMcManis, supra note 13, at 617–18.Show More Rather than taking on apprentices one-by-one, Reeve must have thought, why not build a roomy hall where many apprentices can gather and pay me their fees to read treatises together? Eureka!

Impressed by the success of this entrepreneurial model, universities followed suit and began creating their own law schools in the opening decades of the nineteenth century. Alas, however, models of academic rigor these early law schools were not. The schools had no prerequisites whatsoever for admission, no formal plan of studies, and no examinations.20 20.See Peggy C. Davis & Elizabeth E. Steinglass, A Dialogue About Socratic Teaching, 23 NYU Rev. L. & Soc. Change 249, 261 (1997); William Epstein, The Classical Tradition of Dialectics and American Legal Education, 31 J. Legal Educ. 399, 399 (1981).Show More Students self-reported their progress on their way to earning a diploma.21 21.SeeDavis & Steinglass, supra note 20, at 261.Show More This to us unimaginable and lethargic system appears to have made university leaders worry that some law graduates might be illiterate, not to mention incompetent to represent clients in even the most basic legal matters.22 22.See Brainerd Currie, The Materials of Law Study, 3. J. Legal Educ. 331, 368–72 (1951).Show More While it is impossible to know what Langdell actually was thinking about this sorry state of affairs—some commentators have remarked that he wrote very little and said even less about the voyages that our histories associate with his name23 23.See McManis, supra note 13, at 636.Show More—it is plausible to infer that he too had some misgivings. Appointed Dean of the Harvard Law School in 1870, Langdell’s first order of business was curricular and pedagogical reform.

Langdell busied himself. He drew up a roster of required classes, instituted mandatory final exams, and wrote a Contracts casebook. But it is his work in the classroom for which he is most celebrated, and it is the remnants of that pedagogy that concern us here. According to Langdell, law is “a science” that students are to master “by studying the cases in which it is embodied”24 24.See C.C. Langdell, A Selection of Cases on the Law of Contracts, at vi (1871).Show More and by participating one-by-one in teacher-initiated question-and-answer sessions to work out for themselves the significance of those cases.25 25.See Patterson, supra note 9, at 17–19.Show More And so, it is said, it came to pass that law students ceased absorbing legal knowledge solely by reading treatises, and law professors ceased imparting legal knowledge solely by lecturing. The case-dialogue strategy was born, and its “logical structure and pedagogical drama” became the distinctive teaching technology used in virtually every American law school.26 26.See Sullivan et al., supra note 9, at 48; see also Davis & Steinglass, supra note 21, at 263–64 (explaining the genesis of Langdell’s teaching style).Show More

As is true of most complex and useful technologies, the Method’s angels and devils are in its details. As William Sullivan and his colleagues asked when preparing their report on legal pedagogy for the Carnegie Foundation for the Advancement of Teaching, one crucial question is: “How is it done?”27 27.See Sullivan et al., supra note 9, at 47.Show More Although the Method is practiced in a variety of ways, researchers claim—and we have found—that it generally proceeds as follows. Aided by a classroom seating chart, the professor calls on students one-by-one and asks them a range of questions about cases they were assigned to read before they arrived in class. Often, the on-call student has the impression that their name was picked out of a hat, and that may well be true. Probably, the professor will ask that student to recite the facts of the case, its procedural posture, and the rule it articulates. The professor likely will pose for the student a number of hypothetical problems that are designed to test their grasp on the meaning and boundaries of the rule in the principal case. The professor usually sticks with one student for a considerable time before letting the first one off the hook and turning to another.

There is a consensus that the pedagogy accomplishes a lot of things well. It allows law schools to gather a large number of students in a single classroom and train them there to think in at least one of the important ways that lawyers supposedly are supposed to think. The Method also offers students the opportunity to work out the answers for themselves, to see that one question may have more than one “correct” answer, and to understand that lawyers assist courts to arrive at the truth of the matters before them by reducing complex lived experiences into stripped-down narratives in which human beings are presented as legal strategizers.28 28.See id. at 63.Show More Cold-calling also is said to duplicate the public speaking experience that students will need after they graduate.

Over the years, law students and law professors have raised objections to many different aspects of the cold-calling pedagogy. We here offer just a brief summary of a few relevant criticisms from this vast literature. Some students find the Method to be useful as a means of learning to articulate an idea aloud under pressure, but others experience it as a sort of ritualized hazing, whose primary purpose is to indoctrinate them into the elite ranks of a professional hierarchy.29 29.See id. at 2 (noting that for some students, “there is often excitement,” while others experience the method as a “game of ‘hide the ball”), 57 (citing the Best Practices for Legal Education project, which argues that case-dialogue teaching can be used as a “tool for humiliating or embarrassing students”).Show More In a book based on essays he wrote while a student at Yale Law School, Harvard Law professor Duncan Kennedy famously described the Socratic law classroom as follows:

The classroom is hierarchical with a vengeance, the teacher receiving a degree of deference and arousing fears that remind one of high school rather than college. The sense of autonomy one has in a lecture—with the rule that you must let the teacher drone on without interruption, balanced by the rule that he can’t do anything to you—is gone. In its place is a demand for pseudo-participation in which one struggles desperately, in front of a large audience, to read a mind determined to elude you.30 30.Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal Educ. 591, 593 (1982) [hereinafter Kennedy, Legal Education]; see Duncan Kennedy, How the Law School Fails: A Polemic, Yale Rev. L. & Soc. Action, Spring 1970, at 71, 72–73.Show More

According to Kennedy, the Socratic Method reinforces and replicates hierarchy. It places the professors at the top of the heap, teaching students to respond cheerfully to humiliation by an authoritarian figure—behavior that they will reproduce once they enter the profession of law. Students are also ranked based on grades, teaching the “inevitability and also the justice of hierarchy,” when in fact the hierarchy is false and unnecessary.31 31.Kennedy, Legal Education, supra note 30, at 600.Show More Kennedy writes that students are further incapacitated because the Socratic classroom fails to teach practical lawyering skills, leaving students with little understanding of how to acquire them and without a clear career path other than to join a large law firm, where presumably they will learn the rest of what they need to know.32 32.Id. at 601.Show More To Kennedy, the value of the Socratic Method in teaching a student to “think like a lawyer” is outweighed by the lessons it also transmits in succumbing to, and then replicating, a dangerous hierarchy.

In their report, Sullivan and his co-authors echoed Kennedy’s concerns about how well the Socratic Method actually imparts basic lawyering skills.33 33.SeeSullivan et al., supra note 9, at 76.Show More Reading cases and answering questions about them offers students practice in analytical thinking, teaching them to be good law clerks or academics or judges. But it does not offer useful practice in other essential skills that make up the professional activity of being a lawyer, such as collaboration, communication, listening, or advocacy, let alone how to gain an understanding of the social context and cultural expectations of what it means to be a lawyer.34 34.Id. at 187–88, 197–98.Show More Sullivan and his colleagues emphasized the declining trust in the legal profession and the erosion of morale among attorneys, which they believe arise because “law school typically blares a set of salient, if unintentional, messages that undercut the likely success of efforts to make students more attentive to ethical matters.”35 35.Id. at 31.Show More They connect this falling-off directly to the Socratic Method, which requires students to set moral norms aside, and teaches them that the safest and quickest route to professional success is to compete, rather than collaborate, with each other.

In her powerful critique of the Socratic Method, Kimberlé Williams Crenshaw of Columbia Law School observes that the pedagogy requires students to take a “neutral” stance that privileges the dominant white male perspective.36 36.SeeKimberlé Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 Nat’l Black L.J. 1, 2–3 (1988).Show More To adopt that allegedly “objective” point of view, students must discard their own lived experiences and reactions. Answering a question in a Socratic classroom is anxiety-provoking for just about anyone. Mandated to do so while also being required to assume a stance that denies one’s own identity multiplies this stress and imposes extra burdens on women and students of color.37 37.Id.Show More

A recent study of gender dynamics at the University of Virginia School of Law found that women, more than men, dislike the Socratic Method.38 38.SeeShadel et al., supranote 2,at 44.Show More One crucial finding of the study is that women are more likely to be subject to backlash than are men for speaking in class and that the Method triggers greater perceived costs for women because of that backlash. Similarly, studies of student experiences at Harvard, Yale, the University of Chicago, and the University of Pennsylvania point specifically to the Socratic Method as a likely cause of the gender differences in experiences by law students.39 39.SeeAdam Neufeld, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13 J. Gender, Soc. Pol’y & L. 511, 536 (2005); Yale Law Women, Yale Law School Faculty and Students Speak Up about Gender: Ten Years Later 13(2012); Mallika Balachandran, Roisin Duffy-Gideon & Hannah Gelbort, Speak Now: Results of a One-Year Study of Women’s Experiences at the University of Chicago Law School, 2019 U. Chi. Legal F. 647, 661–62; Lani Guinier et al., Becoming Gentlemen: Women, Law School, and Institutional Change 13 (1997).Show More However, the University of Virginia study also showed that the Socratic Method closed participation gaps in speaking. In classes in which the professor called on students, men and women spoke in measures roughly proportional to their enrollment numbers in the class. By contrast, in classes in which participation was driven by volunteers, men dominated the class time.40 40.See Shadel et al., supra note 2, at 40.Show More

At the end of the day, our assessment of the Socratic Method is mixed. It can be an active way for students to engage with difficult and unfamiliar material. It can offer students the opportunity to practice analytical thinking and articulating their ideas aloud. It can encourage equal participation in classroom discussion between men and women when used systematically. It can also cause intense anxiety in students, which can obstruct their ability to learn. It can reinforce pernicious hierarchies. It can be used to inflict harm. And it may not be the best tool to teach some of the subjects that lawyers most need to learn. With these issues in mind, we turn now to a discussion about teaching the law of rape.

II. Teaching the Law of Rape

When the Socratic Method was adopted in 1870, law schools, like the legal profession itself, were “masculine sanctuar[ies].”41 41.See Cynthia Fuchs Epstein, Women in Law 38 (4th ed. 2012); Michael Grossberg, Institutionalizing Masculinity: The Law as a Masculine Profession,in Meanings for Manhood: Constructions of Masculinity in Victorian America 133, 134–35, 143–44 (Mark C. Carnes & Clyde Griffen eds., 1990).Show More At that time, women had just started seeking admission to the bar, as well as access to the educational portals that led there. Institutional leaders were not keen to bring women on board, putting forward a range of arguments about women’s unfitness for higher education in general and for law training in particular. As for why women should be excluded from higher education, the claims ranged from the notion that women’s health—especially their reproductive capacities—would be destroyed if some of their vital energy was spent studying to the idea that women lacked the necessary cognitive function for complex intellectual work to the proposition that nature had designed women only for service in the home and other domestic spaces.42 42.See Edward H. Clarke, Sex in Education; Or, A Fair Chance for Girls 21–29 (1873). To be fair to Dr. Clarke, just as he wanted to be fair to the girls, he believed that “[t]he real question is not, Shall women learn the alphabet? but How shall they learn it?” Id. at 16.Show More As for why women should not be trained to practice law, a prominent and recurring explanation was that women would be rendered unfit for their role as virtuous wives and mothers if they were exposed to legal speech, especially to legal speech about sex.43 43.As the Supreme Court of Wisconsin proclaimed in 1875 when denying Lavinia Goodell’s motion for admission to the bar:There are many employments in life not unfit for female character. The profession of the law is surely not one of these . . . . Nature has tempered woman as little for the juridical conflicts of the court room, as for the physical conflicts of the battle field. Womanhood is moulded for gentler and better things. And it is not the saints of the world who chiefly give employment to our profession. It has essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene, in human life. It would be revolting to all female sense of the innocence and sanctity of their sex, shocking to man’s reverence for womanhood and faith in woman, on which hinge all the better affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice.In re Goodell, 39 Wis. 232, 245–46 (1875).Show More Law school deans, faculty, and students also expressed concern that the sight, sound, and scent of women would be distracting to male students and that the admission of a woman would have the effect of denying a precious seat to a man.44 44.Epstein, supranote 41, at 38–40, 49.Show More However, as has proved to be their way, women just kept knocking on the door. In the late nineteenth and early twentieth century, women started gaining admission to law schools throughout the country, including a select few who were allowed to enroll at the University of Virginia School of Law in 1920, Columbia Law School in 1928, and Harvard Law School in 1950.45 45.Id.at 38;see alsoCommon Law, Teaching the Law of Sexual Assault (Mar. 3, 2020),https://www.law.virginia.edu/commonlaw/show-notes-teaching-law-sexual-assault [https://perma.cc/4R2Y-5A43] (describing the experiences and successes of the women who were among the first female students to graduate from law schools in the country).Show More

When called upon to explain why Harvard finally threw in the towel on women, Dean Erwin Griswold gave a grudging statement that may have provided some solace to those of his constituents who remained opposed to women’s presence:

It does not seem to me that this particular development is either very important or very significant. Most of us have seen women from time to time during our lives, and have managed to survive the shock. We have even had a few around Langdell and Austin Halls for a good many years now, with no serious consequences. . . . I think we can take it, and I doubt if it will change the character of the School or even its atmosphere to any detectable extent. As of today, I doubt if this change alone will require any of our faculty members to revise many of their lectures.46 46.SeeErwin N. Griswold, Developments at the Law School, 1950 Harv. L. Sch. Y.B. 10.Show More

Just as Griswold predicted, law schools did not swiftly reform their curricular requirements or pedagogical strategies in response to the coming of women. And some of the earliest changes that did take place seem to have been calculated to mute women’s full participation.

For example, women in some law school classes were silenced by a simple expedient: Their professors did not call on them at all.47 47.See Epstein, supra note 41, at 51.Show More Perhaps, these professors did not expect that women would function as strong or shiny foils in the professor-led classroom “banter” through which—among other things—“the professor demonstrates his verbal virtuosity.”48 48.See id.Show More Or professors may have wanted to “spare” women from the embarrassment of breaking down under the pressure of a cold call.49 49.See id. (reporting that one respondent stated that, as of 1969, “[e]ven the most liberal professors rarely called on women, and when they did, hurried to get on to a man whom they could harass without fear of provoking overt (i.e. feminine) emotional collapse”).Show More Then too, still other professors may have avoided calling on the women because they suspected what the women themselves knew, i.e., that the women were capable of doing analytical work as accomplished as that of their male peers.50 50.See Shadel et al., supra note 2, at 39.Show More

For other professors, the whole point of calling on women was to humiliate them. According to many women, their professors hosted what were known as “Ladies’ Days,” an institution common in many schools until the 1960s. During these classes, women students were called on to recite for the purpose of providing “entertainment,” or a special play within the larger Socratic play for the amusement of their male professors and male classmates.51 51.See Epstein, supra note 41, at 51–52.Show More As late as the mid-1960s, one professor would kick off his Ladies’ Day by saying, “Will all the little virgins please come to the front of the room.”52 52.See id. at 51.Show More Surely, the women must have felt somewhat anxious about the nature and content of the exercise to which they were being summoned, but, after the passing of the first Ladies’ Day or two, everyone knew what was coming their way. For these sessions, professors pulled together—and examined the women about—“all the embarrassing and difficult-to-discuss problems” thought to be of special interest to women, such as the “intricacies of dower.”53 53.See id. at 51–52.Show More

Rape was another topic that seems to have provided plenty of humorous fodder for the Ladies’ Day spectacles. The law of rape itself was not included in the curriculum when women first arrived in law schools, but rape cases tended to appear at various points in the criminal law syllabus as vehicles for analyzing the mechanics of “general” problems, such as the exculpatory power of so-called “mistake of fact” defenses.54 54.It is in large part thanks to Nancy Erickson that rape began to be covered as a topic in its own right. In the mid-1980s, Erickson, then a professor at the Ohio State Law School, surveyed criminal law case books and professors to determine what was being taught in their classes. She found that the vast majority of criminal law case books did not cover rape at all, or touched on the topic only marginally, as part of other subjects. See Nancy S. Erickson, Final Report: “Sex Bias in the Teaching of Criminal Law,” 42 Rutgers L. Rev. 309, 345–46 (1990).Show More One professor used the sessions as an opportunity to investigate the nature of the actus reus of rape, questioning the women who were on call about “the degree of penile penetration required” to constitute the crime.55 55.See Epstein, supra note 41, at 51. In 1968, women students at Harvard Law School took it upon themselves to put an end to Ladies’ Day. Knowing that the questioning was sure to include a property case that had something to do with underwear, at the end of the session, the women pulled lingerie from their briefcases and threw it at the professor. And that was that. See id. at 52.Show More Over time, we believe, these formal Ladies’ Days have faded entirely from the scene, but classroom conversations about rape have remained uncomfortable for women students to navigate in part because of their perception that professors are treating the topic cavalierly or belligerently. According to students who contributed to a recent profile of a prominent criminal law professor at Harvard, his classroom discussions in the 1990s returned repeatedly to the subject of rape, even when the topic was not on the syllabus, and he tended to emphasize convoluted and sexist theories for finding that the accused man had made a reasonable mistake about his partner’s consent.56 56.See Connie Bruck, Alan Dershowitz, Devil’s Advocate, The New Yorker (July 29, 2019), https://www.newyorker.com/magazine/2019/08/05/alan-dershowitz-devils-advocate, [https://perma.cc/7CYT-CVE6].Show More Finally, a woman student raised her hand in class and “said, essentially, O.K., enough rape examples! There are women in this class who have been raped. Can we move on to something else?” According to other students in the room, the professor did not take kindly to this intervention.57 57.One male student recounted that the professor’s “hair just caught on fire . . . He seemed to take that as a challenge to his authority, and he made it clear he was going to teach what he wanted to teach.” Id.Show More

We don’t know how long these sorts of stories have stuck in students’ minds. At least in some classrooms—including perhaps one of ours—students seem to perceive that the days devoted to studying the law of rape will serve some of the same functions as the Ladies’ Days did. Today, our students call those days “Rape Week,” a label that is challenging for us to interpret as an improvement.58 58.SeeKatie J.M. Baker, Teaching Rape Law in the Age of the Trigger Warning,BuzzFeed News (Apr. 3, 2015), https://www.buzzfeednews.com/article/katiejmbaker/teaching-rape-law-in-the-age-of-the-trigger-warning, [https://perma.cc/Y4WZ-4KAB].Show More More to the point, we keep reading and being told directly that students do fear their arrival at this point in the criminal law syllabus, and they are asking for our help.

Some professors seem inclined to throw in the towel on teaching rape.59 59.See id.;Jeannie Suk Gersen, The Trouble with Teaching Rape Law, The New Yorker (Dec. 15, 2014), https://www.newyorker.com/news/news-desk/trouble-teaching-rape-law. [https://perma.cc/AQT5-TCAU].Show More In our estimation, that would be a big loss because rape is among the most dynamic areas in the criminal law curriculum in terms of law reform and the public has a deep interest in the topic. After all, most people want to—and do—have sex, and rape law speaks directly to the question of whether—and under what circumstances—our sexual activity is lawful or unlawful. And because so many people have themselves been survivors of rape, it is likely that some of those survivors are present in the classroom. They have a personal stake in the discussion and in what reforms should look like. Handled poorly, classroom conversations about rape can be quite difficult because those conversations remind those students about—and perhaps cause them to re-experience—the painful events that we are aiming to eliminate. Surely, we can do better.

III. What Now?

We propose that it is essential to continue to teach topics that, like rape, are legally, politically, and culturally loaded. It is equally essential to teach these subjects carefully so that professors and students have a shot at studying the material free from the special anxieties its coverage historically has created for women entrants to this masculine citadel. We know that if a discussion is left uncontrolled, men are more likely to speak than women. For this topic, like so many others, women’s voices are critical to the conversation. For these reasons, we believe that it is important for professors to be mindful of the students’ experiences in the classroom, and to be intentional in their pedagogical choices.

Cold-calling is an ineffective way to teach topics like rape. This pedagogy ends up being “cold” along at least two different dimensions. First, the student experience can be quite chilly.60 60.SeeBernice Resnick Sandler, Lisa A. Silverberg & Roberta M. Hall, The Chilly Classroom Climate: A Guide to Improve the Education of Women 38 (1996).Show More Cold-calls are cold because they take students by surprise, requiring them to answer the questions of the professor in front of their classmates. Public speaking is an activity that makes most people anxious. Being forced to do it without advance notice—and about a topic in which the speaker has little expertise and almost no language—compounds the pressure. Indeed, this is the stuff of actual nightmares. If the student has personal experience with the subject matter at hand, the student’s pain is likely to be multiplied. Because a cold call is public, there is no way for the student to opt out of the discussion privately—even the request to “pass” becomes a public moment, and sometimes a moment of humiliation for the student. That student certainly will not have learned anything about the material from such an interaction, nor is it likely to foster cheerful participation from the rest of the students.

Second, cold-calling and the Socratic Method generally can also be “cold” in that the practices usually require students to strip away their own human reactions to material in the process of extracting a legal principle from the cases they are reading. Pain lies below the surface of every case we read in law school—at the heart of each case, something has gone terribly wrong, leading to a lawsuit. When we learn to “think like a lawyer,” we may be learning to treat human beings as legal abstractions. An injured child is “the plaintiff.” A dead child is part of “an estate.” Gruesome torts and contracts cases become the stuff of in-class jokes. In an effort to master the doctrine, we sometimes lose sight of our own human intuition and sympathies.

No, we are not recommending that law school classes should become group therapy sessions, though more and more law schools are including professional counselors on their administrative staffs. Certainly, students must learn how to master the art of legal analysis. Discussions centered only on students’ intuitions about and personal reactions to the topic at hand are insufficient. However, as Kennedy and Crenshaw note, our law schools are now, thankfully, populated by students with myriad backgrounds and perspectives. The ostensibly “objective” perspective of an appellate judge or the author of the casebook being used in class is sure to be inconsistent with the lived experiences of many of our students and the communities from which they come. Requiring students to sublimate their experiences—to behave as if there is no humanity at play here—unfairly burdens the students with the highest stakes in the material and is likely to impede their ability to learn.61 61.See Crenshaw, supra note 36, at 3; Kennedy, Legal Education, supra note 30, at 594–95.Show More

So, if conventional cold-calling should be off the table, what should you do? Start with the obvious: Faculty teaching cases about painful and all-too-common experiences such as rape—and, really, all other topics in law school—should keep in mind their objectives, what they are hoping their pedagogy may achieve.

For our part, first, we want to teach students to engage in analytical thinking. The Socratic Method can help achieve that goal in that it offers students the opportunity to have focused and disciplined conversations about the material. However, there is no reason that the conversation needs to happen without notice. A system in which students know when they will be expected to speak leads to better preparation and often a better classroom discussion. Then too, professors can give students guidance about the general or particular questions that will be explored in class so that they can be prepared to do a decent job. Moreover, the conversation need not be between one student and the professor. Allowing or requiring students to speak to one another in pairs or groups—before or during the classroom session—can be beneficial as well.

Second, we want to teach students to be able to articulate their ideas aloud. With that goal in mind, a single cold-call is counterproductive. Speaking up is more easily done with practice. In a class that fosters active conversation, students have practice at expressing their ideas, and they will get better at it. A class in which a student is only called upon to speak once does not offer that student an opportunity to practice, and that single recitation feels magnified because it is a stand-alone experience. Ideally, all law school classes would be smaller in size to offer students multiple opportunities to speak—the University of Virginia study shows that classes of 30 or less result in more gender parity in conversation.62 62.See Shadel et al., supra note 2, at 35.Show More In larger classes, it is helpful to give students notice when they will be on call so that they are more likely to be able to answer questions effectively and feel good about the experience.

We also suggest that the conversation will be better if the students are made aware of their responsibility for their contributions to the dialogue. This may require a professor and the students to spend time at the start of a course agreeing on norms that encourage classroom participation, so that students understand that they empower themselves by speaking and take it as part of their job to unlearn patterns of disengagement.63 63.See, e.g.,Crenshaw, supra note 366, at 13.Show More Such a conversation also offers the professor the opportunity to remove some of the threat of backlash that women in the classroom might face for speaking up by framing participation as a requirement of the class. It can be very useful for a professor to create a schedule of when students are expected to speak so that the “job” of who is speaking is clear.

Third, we want to teach students to manage the human side of what it means to be a lawyer. Just as a doctor must learn to treat a suffering patient without falling apart in the face of that patient’s pain, so too a lawyer must be able to manage the emotions at play when a client needs help. If we use the Socratic Method to teach students to dehumanize their clients or to ignore their own human intuitions and experiences, then we are not teaching them to be effective lawyers. We suggest foregrounding the emotional component of the topic—to state explicitly that the legal principles are not the only things that are important about these cases. It is useful for students to be reminded that these cases are about human beings, and by exploring them, we are trying to make the law a tool that can make things better in these traumatic situations. By tackling hard cases, students are practicing managing their own emotions so that they can think strategically. Students should also have the right to opt out of being on call if a public recitation about a subject would impede their learning, privately and without penalty. Lawyers are able to avoid certain kinds of cases if they choose to. Law students should have similar freedom.

Sometimes, the silent students have the most useful insights. Their participation lights up the whole classroom and, with it, the legal world. That is why we believe that it behooves professors to design classes that encourage student participation from the beginning, so that students feel comfortable speaking and listening to one another. It is possible to create an environment in which a student will choose to speak, which benefits both the student and the class as a whole. It is the job of the professor to take on the challenge of creating such an environment.

  1. * We are indebted to Rip Verkerke and Sophie Trawalter for their insights into gender-related classroom dynamics and for working tirelessly for almost a decade on their study investigating this issue, and also to Naomi Cahn for sharing her wisdom and experiences. ↑
  2. Mary Beard, Women & Power: A Manifesto, at xi (2017). ↑
  3. Molly Shadel, Sophie Trawalter & J.H. Verkerke, Gender Differences in Law School Classroom Participation: The Key Role of Social Context, 108 Va. L. Rev Online 30 (2022). ↑
  4. The participation gap closes as well when class size is smaller, and it seems to be driven by concerns that the student who speaks will be the recipient of backlash. Therefore, one may hypothesize that the gap will close if the threat of backlash is removed. See id at 43–45. ↑
  5. Cold-calling occurs when an instructor directs questions about assigned readings, which in large law school classes invariably consist of appellate cases, to a student whose hand is not raised and who has not been given advance notice that they will be put on the spot. Cold-calling varies in intensity in terms of the length of time the student remains on call and the complexity of the professor’s questioning, which may range from the factual to the procedural to the doctrinal to the political to the ethical. ↑
  6. See Lani Guinier, Michelle Fine, Jane Balin, Ann Bartow & Deborah Lee Stachel, Becoming Gentlemen: Women’s Experiences at One Ivy League Law School, 143 U. Pa. L. Rev. 1, 4 (1994). ↑
  7. See Shadel et al., supra note 2, at 40. ↑
  8. See Beard, supra note 1, at i–xi. ↑
  9. See id. at 4. ↑
  10. See William M. Sullivan, Ann Colby, Judith Welch Wegner, Lloyd Bond & Lee S. Shulman, Educating Lawyers: Preparation for the Profession of Law 47 (2007); see also Edwin W. Patterson, The Case Method in American Legal Education: Its Origins and Objectives, 4. J. Legal Educ. 1, 17 (1951) (describing the key features of the Socratic Method). As William Sullivan and his colleagues declare in their report for the Carnegie Foundation for the Advancement of Teaching, the “case-dialogue method” is the “signature pedagogy” through which law schools induct new members into the field. Sullivan et al., supra, at 23–24. ↑
  11. See Patterson, supra note 9, at 2; Jeannie Suk Gerson, The Socratic Method in the Age of Trauma, 130 Harv. L. Rev. 2320, 2321 (2017). ↑
  12. See, e.g.,The Collected Dialogues of Plato 353, 359 (Edith Hamilton & Huntington Cairns eds., W.K.C. Guthrie trans., 1973) (excerpting a dialogue between Socrates and Meno). If our word allotment and time allowed, we might venture to describe the episodes in Socrates’s life and work that are relevant to the legal pedagogy with which his name is associated. However, we happily ditched that plan entirely after reading one expert’s warning that securing any image of Socrates is “difficult,” even “impossible, or at least as baffling as trying to depict an elf wearing a hat that makes him invisible.” See Soren Kierkegaard, The Concept of Irony, With Constant Reference to Socrates 50 (Lee M. Capel trans., 1965). ↑
  13. In a speech he gave at Harvard College’s Phillips Brooks House, K.N. Llewellyn noted that it took several decades for Langdell’s “genius” to “dent his guild” even though his pedagogy carried over many of the outworn traditions against which he himself “had rebelled.” See K.N. Llewellyn, On What Is Wrong with So-Called Legal Education, 35 Colum. L. Rev. 651, 661 (1935). See also Suk Gerson, supra note 10, at 2323–24. ↑
  14. Charles R. McManis, The History of First Century American Legal Education: A Revisionist Perspective, 59 Wash. U. L.Q. 597, 601–03 (1981); see also D. Kelly Weisberg, Barred from the Bar: Women and Legal Education in the United States 1870–1890, 28 J. Legal Educ. 485, 485 (1977) (citing Chroust, The Rise of the Legal Profession in America 173 (1965)) (describing four ways colonial Americans could pursue legal education). ↑
  15. As is true of so many other subjects political and legal, Thomas Jefferson had something to say—and, yes, it was critical—about “the apprentice system of legal training in which he had been schooled.” McManis, supra note 13, at 604 (quoting a private letter in which Jefferson said that a legal apprenticeship “was rather a prejudice than a help”). John Adams also had bad things to say about his legal apprenticeship. See Gerard W. Gawalt, Massachusetts Legal Education in Transition, 1766–1840, 17 Am. J. Legal Hist. 27, 32 (1973). ↑
  16. Jerome Frank, What Constitutes a Good Legal Education?, 19 ABA J. 723, 723 (1933) (citing Centennial History of the Harvard Law School 231 (Harv. L. Sch. Ass’n 1918)). ↑
  17. See Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 14–39 (1976). ↑
  18. See id. at 29. ↑
  19. Anthony Chase, The Birth of the Modern Law School, 23 Am. J. Legal Hist. 329, 336–37 (1979). ↑
  20. See McManis, supra note 13, at 617–18. ↑
  21. See Peggy C. Davis & Elizabeth E. Steinglass, A Dialogue About Socratic Teaching, 23 NYU Rev. L. & Soc. Change 249, 261 (1997); William Epstein, The Classical Tradition of Dialectics and American Legal Education, 31 J. Legal Educ. 399, 399 (1981). ↑
  22. See Davis & Steinglass, supra note 20, at 261. ↑
  23. See Brainerd Currie, The Materials of Law Study, 3. J. Legal Educ. 331, 368–72 (1951). ↑
  24. See McManis, supra note 13, at 636. ↑
  25. See C.C. Langdell, A Selection of Cases on the Law of Contracts, at vi (1871). ↑
  26. See Patterson, supra note 9, at 17–19. ↑
  27. See Sullivan et al., supra note 9, at 48; see also Davis & Steinglass, supra note 21, at 263–64 (explaining the genesis of Langdell’s teaching style). ↑
  28. See Sullivan et al., supra note 9, at 47. ↑
  29. See id. at 63. ↑

  30. See id. at 2 (noting that for some students, “there is often excitement,” while others experience the method as a “game of ‘hide the ball”), 57 (citing the Best Practices for Legal Education project, which argues that case-dialogue teaching can be used as a “tool for humiliating or embarrassing students”). ↑

  31. Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal Educ. 591, 593 (1982) [hereinafter Kennedy, Legal Education]; see Duncan Kennedy, How the Law School Fails: A Polemic, Yale Rev. L. & Soc. Action, Spring 1970, at 71, 72–73. ↑
  32. Kennedy, Legal Education, supra note 30, at 600. ↑
  33. Id. at 601. ↑
  34. SeeSullivan et al., supra note 9, at 76. ↑
  35. Id. at 187–88, 197–98. ↑
  36. Id. at 31. ↑
  37. See Kimberlé Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 Nat’l Black L.J. 1, 2–3 (1988). ↑
  38. Id. ↑
  39. See Shadel et al., supra note 2, at 44. ↑
  40. See Adam Neufeld, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13 J. Gender, Soc. Pol’y & L. 511, 536 (2005); Yale Law Women, Yale Law School Faculty and Students Speak Up about Gender: Ten Years Later 13 (2012); Mallika Balachandran, Roisin Duffy-Gideon & Hannah Gelbort, Speak Now: Results of a One-Year Study of Women’s Experiences at the University of Chicago Law School, 2019 U. Chi. Legal F. 647, 661–62; Lani Guinier et al., Becoming Gentlemen: Women, Law School, and Institutional Change 13 (1997). ↑
  41. See Shadel et al., supra note 2, at 40. ↑
  42. See Cynthia Fuchs Epstein, Women in Law
    38

    (4th ed. 2012); Michael Grossberg, Institutionalizing Masculinity: The Law as a Masculine Profession, in Meanings for Manhood: Constructions of Masculinity in Victorian America 133, 134–35, 143–44 (Mark C. Carnes & Clyde Griffen eds., 1990). ↑

  43. See Edward H. Clarke, Sex in Education; Or, A Fair Chance for Girls 21–29 (1873). To be fair to Dr. Clarke, just as he wanted to be fair to the girls, he believed that “[t]he real question is not, Shall women learn the alphabet? but How shall they learn it?” Id. at 16. ↑
  44. As the Supreme Court of Wisconsin proclaimed in 1875 when denying Lavinia Goodell’s motion for admission to the bar:There are many employments in life not unfit for female character. The profession of the law is surely not one of these . . . . Nature has tempered woman as little for the juridical conflicts of the court room, as for the physical conflicts of the battle field. Womanhood is moulded for gentler and better things. And it is not the saints of the world who chiefly give employment to our profession. It has essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene, in human life. It would be revolting to all female sense of the innocence and sanctity of their sex, shocking to man’s reverence for womanhood and faith in woman, on which hinge all the better affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice.In re Goodell, 39 Wis. 232, 245–46 (1875). ↑
  45. Epstein, supra note 41, at 38–40, 49. ↑
  46. Id. at 38; see also Common Law, Teaching the Law of Sexual Assault (Mar. 3, 2020), https://www.law.virginia.edu/commonlaw/show-notes-teaching-law-sexual-assault [https://perma.cc/4R2Y-5A43] (describing the experiences and successes of the women who were among the first female students to graduate from law schools in the country). ↑
  47. See Erwin N. Griswold, Developments at the Law School, 1950 Harv. L. Sch. Y.B. 10. ↑
  48. See Epstein, supra note 41, at 51. ↑
  49. See id. ↑
  50. See id. (reporting that one respondent stated that, as of 1969, “[e]ven the most liberal professors rarely called on women, and when they did, hurried to get on to a man whom they could harass without fear of provoking overt (i.e. feminine) emotional collapse”). ↑
  51. See Shadel et al., supra note 2, at 39. ↑
  52. See Epstein, supra note 41, at 51–52. ↑
  53. See id. at 51. ↑
  54. See id. at 51–52. ↑
  55. It is in large part thanks to Nancy Erickson that rape began to be covered as a topic in its own right. In the mid-1980s, Erickson, then a professor at the Ohio State Law School, surveyed criminal law case books and professors to determine what was being taught in their classes. She found that the vast majority of criminal law case books did not cover rape at all, or touched on the topic only marginally, as part of other subjects. See Nancy S. Erickson, Final Report: “Sex Bias in the Teaching of Criminal Law,” 42 Rutgers L. Rev. 309, 345–46 (1990). ↑
  56. See Epstein, supra note 41, at 51. In 1968, women students at Harvard Law School took it upon themselves to put an end to Ladies’ Day. Knowing that the questioning was sure to include a property case that had something to do with underwear, at the end of the session, the women pulled lingerie from their briefcases and threw it at the professor. And that was that. See id. at 52. ↑
  57. See Connie Bruck, Alan Dershowitz, Devil’s Advocate, The New Yorker (July 29, 2019), https://www.newyorker.com/magazine/2019/08/05/alan-dershowitz-devils-advocate, [https://perma.cc/7CYT-CVE6]. ↑
  58. One male student recounted that the professor’s “hair just caught on fire . . . He seemed to take that as a challenge to his authority, and he made it clear he was going to teach what he wanted to teach.” Id. ↑
  59. See Katie J.M. Baker, Teaching Rape Law in the Age of the Trigger Warning, BuzzFeed News (Apr. 3, 2015), https://www.buzzfeednews.com/article/katiejmbaker/teaching-rape-law-in-the-age-of-the-trigger-warning, [https://perma.cc/Y4WZ-4KAB]. ↑
  60. See id.; Jeannie Suk Gersen, The Trouble with Teaching Rape Law, The New Yorker (Dec. 15, 2014), https://www.newyorker.com/news/news-desk/trouble-teaching-rape-law. [https://perma.cc/AQT5-TCAU]. ↑
  61. See Bernice Resnick Sandler, Lisa A. Silverberg & Roberta M. Hall, The Chilly Classroom Climate: A Guide to Improve the Education of Women 38 (1996). ↑
  62. See Crenshaw, supra note 36, at 3; Kennedy, Legal Education, supra note 30, at 594–95. ↑
  63. See Shadel et al., supra note 2, at 35. ↑

  64. See, e.g., Crenshaw, supra note 366, at 13. ↑

Foreword

This symposium about the future of legal pedagogy could not be more timely. Its four thought-provoking papers raise a constellation of questions about how law schools educate lawyers and toward what purposes. These papers describe and assess the impact of the shifting demographics of law students and faculty and the variety of life experiences these students and teachers bring with them to law school. They highlight different approaches to pedagogy and how those approaches can better train students for effective and humane advocacy. They argue for the need to historicize and contextualize the law in order to understand its power, its impact on people, and how it operates in the world.

At their core, these essays grapple with the question—still ongoing many years after women and people of color began attending law schools in significant numbers—of how institutions adapt when the people who inhabit them change. According to the American Bar Association, in the fall of 2021, women made up more than 56% of first-year law students. One in three entering law students are students of color.1 1.Statistics: ABA Required Disclosures, A.B.A., https://www.americanbar.org/groups/‌legal_‌education/‌resources/statistics/ [https://perma.cc/UDF8-P4LP] (last visited Feb. 14, 2022) (download spreadsheet titled “2021 1L Enrollment by Gender & Race/Ethnicity”).Show More Law students are LGBTQ+ and veterans, first-generation and low-income. They are students with disabilities and students from all over the world. Unsurprisingly, they arrive at law school with a far wider array of personal experiences than ever before.

So too do the faculty who teach these students. Drawn largely from the ranks of these increasingly diverse law graduates, faculty are also more diverse—although still far less so than the student population.2 2.In 2011, 40% of full-time law faculty were women and 17% were minorities; in 2021, 46% of full-time law faculty were women and 22% were minorities. Compare 509 Required Disclosures, A.B.A., https://www.abarequireddisclosures.org/‌Disclosure‌509.aspx [https://‌perma.cc/T75B-ACSQ] (last visited Feb. 16, 2022) (select “2021” and “Faculty Resources” under “Compilation – All Schools Data” to generate report), with id. (select “2011” and “Faculty and Administrators” under “Compilation – All Schools Data” to generate report); see also Justin McCrary, Joy Milligan & James Phillips, The Ph.D. Rises in American Law Schools, 1960–2011: What Does It Mean for Legal Education?, 65 Legal Educ. 543, 549 (2016).Show More As law schools become more diverse, legal pedagogy has begun, in fits and starts, with more and less intentionality, to adjust.

Identifying, commenting on, and exploring the effects of these demographic changes on legal pedagogy, the essays in this symposium offer nuanced and complex approaches to a series of inherently nuanced and complex questions. To take one: Has the moment—the nearly century and a half moment—of the Socratic method now passed? The jury, as they say, remains out. What is clear is that we are asking new and harder questions of this classic law school teaching method. Does it silence or alienate some students, often women and people of color, more than others? Does it overemphasize judicial opinions to the exclusion of a fuller understanding of how cases come to be, the other actors involved in their development, and the very human problems out of which they arise and on which they exercise coercive power? Does it reinforce existing hierarchies and fail to rectify disparities deeply entrenched in societal structures?

Molly Shadel, Sophie Trawalter, and Rip Verkerke approach these questions empirically, leveraging quantitative methods to examine gender disparity in classroom participation.3 3.Molly Bishop Shadel, Sophie Trawalter & J.H. Verkerke, Gender Differences in Law School Classroom Participation: The Key Role of Social Context, 108 Va. L. Rev. Online 30 (2022).Show More By combining the coding of classroom participation with longitudinal and survey studies, the authors document such gender disparity, provide insights about why it exists, and suggest possible ways to remedy it. Molly Shadel and Anne Coughlin develop these empirical insights into a compelling critique of the modern Socratic Case Method, highlighting how it fails to escape its history of hierarchy and sexism.4 4.Anne M. Coughlin & Molly Bishop Shadel, The Gender Participation Gap and the Politics of Pedagogy, 108 Va. L. Rev. Online 55 (2022).Show More Going forward, they argue, law schools must foster collaboration, encourage listening, and empower diverse perspectives so as to better prepare students for the challenges and opportunities of legal practice.

If the first two papers take aim at the method of pedagogical inquiry, the latter two focus on the substance of what law schools teach. Sherri Lee Keene and Susan A. McMahon suggest moving beyond a curriculum focused on judicial opinions.5 5.Sherri Lee Keene & Susan A. McMahon, The Contextual Case Method: Moving Beyond Opinions to Spark Students’ Legal Imaginations, 108 Va. L. Rev. Online 72 (2022).Show More Such opinions, they argue, systematically dehumanize tragedy, ignore non-legal drivers of legal outcomes, suggest certainty in a complex world, frequently privilege unrepresentative speakers, and foreclose the imagination of transformational, systemic change. The authors advocate instead contextualizing opinions within the human experience, presenting them alongside competing and often overlooked perspectives, and viewing them as one facet of a broader legal framework in need of radical reimagination. Similarly, Paula A. Monopoli argues that feminist legal theory and history are essential reading for law students, particularly in core curricula relating to constitutional development.6 6.Paula A. Monopoli, Feminist Legal History and Legal Pedagogy, 108 Va. L. Rev. Online 91 (2022).Show More Invoking historical examples, Monopoli views the vital role that women advocates have played in creating constitutional and social change as empowering law students to become more effective advocates today.

As these brief descriptions suggest, these essays not only engage with the major demographic shifts law schools have experienced over the past half century. They also reflect, in more and less direct ways, other changes that have substantially transformed legal pedagogy over the same general period—changes that make this moment a particularly fertile one for legal education.7 7.One important trend beyond the scope of this Foreword is the penetration of technology into every aspect of life and law, which has had, and will continue to have, profound effects on both what we teach and how we teach it. The speed of communication, the explosion in the production of information, and the complexity of technological systems require law schools to educate students more extensively and with more specialized knowledge about technology. See generally Michele Pistone, Law Schools and Technology: Where We Are and Where We Are Heading, 64 J. Legal Educ. 586, 586 (2015) (arguing that “technology offers the attractive possibility of making legal education both more efficient and more effective”). Technology has also altered how we learn, teach, and collaborate. See, e.g., Kennedy M. Maranga, The Role and Impact of Technology in Legal Education (June 9, 2010) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520831 [https://perma.cc/WT9F-HGRQ] (suggesting that technology has changed both the classroom and legal practice). The ongoing COVID-19 pandemic has both accelerated the use of online teaching of various forms and reinforced for many the continued importance of in-person teaching and intellectual exchange. See, e.g., Morenike Saula, Crisis-Induced Innovation in U.S. Legal Education, 69 J. Legal Educ. 679 (2020).Show More Two such trends are especially relevant to this symposium and to the direction in which these essays both see legal pedagogy heading and view as salutary, if not necessary.

First, alongside the demographic shifts that have taken place among law faculty is a methodological one. As recently as 2000, most law professors were trained exclusively in law, and they came to law teaching after judicial clerkships and brief stints in legal practice.8 8.McCrary et al., supra note 2, at 553 (“As for credentials, in 2000 ‘the prototypical new law teacher graduated from an elite school (most often from Harvard or Yale), was on the staff of the law review or another journal while in law school, clerked for a judge (usually a federal judge), published one or two articles or notes (though many published nothing at all), and practiced for several years (usually in a law firm or a corporate counsel’s office) before entering academia.’”) (quoting Richard E. Redding, Where Did You Go to Law School? Gatekeeping for the Professoriate and Its Implications for Legal Education, 53 J. Legal Educ. 594, 596 (2003)).Show More Historically, law schools were more closely connected both intellectually and institutionally to the legal profession and the practice of law than to the rest of the university. In recent decades, however, more and more law professors have engaged in formal doctoral training in complementary cognate fields alongside their law degrees—economics, psychology, politics, history, philosophy, literature, and more.9 9.Id. (noting that 28% of law professors at the top thirty-four law schools hold Ph.Ds, compared to 5% of all law professors in 1989); see also Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 J. Legal Educ. 506, 507 (2016) (“[T]he overall trend is unmistakable. Ph.D. hiring is increasing rapidly.”).Show More As a result of this increased interdisciplinarity—and despite some criticism by legal practitioners—law schools and legal scholarship have moved closer intellectually to the universities of which they are a part.10 10.Kim Diana Connolly, Elucidating the Elephant: Interdisciplinary Law School Classes, 11 Wash. U. J.L. & Pol’y 11, 19–20 (2003). A full reply to such criticism is beyond the scope of this brief Foreword.Show More

Both what and how we teach have changed as a result. The law school curriculum has unsurprisingly become more interdisciplinary, offering more courses in critical theories, the humanities, and the social sciences. At UVA Law School, and I am sure at other schools as well, small seminars have displaced a substantial portion of large Socratic lecture courses in the law school curriculum, and students learn the disciplinary approaches of multiple methodologies alongside the analytical reasoning of blackletter fundamentals. The result is a legal education attuned not only to the logic of the law but also to the big picture within which that logic operates.

Second, even as law schools have expanded the curriculum into new theoretical horizons, we have also begun to offer far more practical training than ever before. Law schools have long described their core pedagogical mission as training students to “think like a lawyer”—how to problem solve through analytical reasoning. Learning the nuts and bolts of legal practice was left largely to summer and post-graduation employers.11 11.Peter A. Joy, The Uneasy History of Experiential Education in U.S. Law Schools, 122 Dickinson L. Rev. 551, 574 (2018); see also Daniel Thies, Rethinking Legal Education in Hard Times: The Recession, Practical Legal Education, and the New Job Market, 59 J. Legal Educ. 598, 599 (2010) ([T]he recession “put a premium on job candidates with practical skills, those on whom [legal employers] will not have to spend time and money before they are ready to practice.”).Show More

That is no longer the case. Clinical and experiential education had grown in law schools even before the Great Recession of 2008, but their growth accelerated in its wake. Partially due to the market pressures facing law firms in the succeeding years, the American Bar Association (and some prominent state bars) established new experiential course requirements for law students. This shifted practice-oriented training from law firms to law schools.12 12.Joy, supra note 11, at 576–80.Show More Law schools have since embraced and proliferated numerous types of experiential education. Clinical education in particular has grown dramatically from its origins as student adjuncts to a local legal aid into its own major branch of legal education. This increase in clinical and experiential education leads not only to greater fluency with the practice of law but also greater understanding of the human dimension for which several of the essays in this symposium call.

The combined effect of the interdisciplinary turn and the expansion of practical training is a law school curriculum with three approaches to law teaching—analytical reasoning, interdisciplinary perspectives, and practical training—each distinct in goal, method, and subject matter. Here at the University of Virginia School of Law, for example, our curriculum is now roughly evenly split between lecture courses, experiential courses, and small seminars.13 13.See University of Virginia School of Law, Courses, https://www.law.virginia.edu/courses [https://perma.cc/2L28-QYBX] (last visited Feb. 14, 2022).Show More The Socratic method still dominates much of the first-year curriculum and our imagination about legal pedagogy. But it has ceded its monopoly over legal education as it now exists. This is hardly Langdell’s law school any longer.

This is all to the good, for many of the reasons the essays in this symposium suggest. At the end of the day, as I tell my students frequently, practicing law is not just a job. It is not just about private gain or personal glory. Those privileged to access the knowledge and license to practice law hold a public trust, a responsibility to fulfill public obligations. As members of a “learned profession,” lawyers “profess” to uphold and promote the rule of law, democracy, and justice and to promote the public good.

That means, and has long meant, that law schools are in the business of training leaders and public servants. Today, that training is both more important and more challenging than ever, in light of widespread social crises, polarization, and political uncertainty. The developments in legal education the essays in this symposium discuss, and those I have briefly sketched, help prepare law students to lead and serve in this challenging moment. This three-pronged approach to legal education helps aspiring and diverse lawyers learn to respect opposing views, listen with empathy, and speak with respect. It makes advocates and counselors of our students, teaches them to take seriously their own humanity and the humanity of others, and inculcates in them the civic obligations they incur by virtue of their legal educations.

It is unsurprising that law schools have changed as our political, moral, and economic cultures have changed. It is equally unsurprising that these changes would affect who we teach, who does that teaching, what we teach, and how we teach it. In engaging with these changes, the essays in this symposium prompt us to ask how law schools can, and why they should, continue to live up to the lofty and critically important aspirations of our profession. As these and other changes remain very much in motion, this symposium locates us in our particular historical moment and prompts us to envision how we will continue to pursue our mission into the future.

  1. * Dean, Arnold H. Leon Professor of Law and Professor of History. The Author would like to thank Christopher Benos for excellent research assistance, as well as Grace Cleveland and Rich Schragger. ↑

  2. Statistics: ABA Required Disclosures, A.B.A., https://www.americanbar.org/groups/‌legal_‌education/‌resources/statistics/ [https://perma.cc/UDF8-P4LP] (last visited Feb. 14, 2022) (download spreadsheet titled “2021 1L Enrollment by Gender & Race/Ethnicity”). ↑

  3. In 2011, 40% of full-time law faculty were women and 17% were minorities; in 2021, 46% of full-time law faculty were women and 22% were minorities. Compare 509 Required Disclosures, A.B.A., https://www.abarequireddisclosures.org/‌Disclosure‌509.aspx [https://‌perma.cc/T75B-ACSQ] (last visited Feb. 16, 2022) (select “2021” and “Faculty Resources” under “Compilation – All Schools Data” to generate report), with id. (select “2011” and “Faculty and Administrators” under “Compilation – All Schools Data” to generate report); see also Justin McCrary, Joy Milligan & James Phillips, The Ph.D. Rises in American Law Schools, 1960–2011: What Does It Mean for Legal Education?, 65 Legal Educ. 543, 549 (2016). ↑

  4. Molly Bishop Shadel, Sophie Trawalter & J.H. Verkerke, Gender Differences in Law School Classroom Participation: The Key Role of Social Context, 108 Va. L. Rev. Online 30 (2022). ↑

  5. Anne M. Coughlin & Molly Bishop Shadel, The Gender Participation Gap and the Politics of Pedagogy, 108 Va. L. Rev. Online 55 (2022). ↑

  6. Sherri Lee Keene & Susan A. McMahon, The Contextual Case Method: Moving Beyond Opinions to Spark Students’ Legal Imaginations, 108 Va. L. Rev. Online 72 (2022). ↑

  7. Paula A. Monopoli, Feminist Legal History and Legal Pedagogy, 108 Va. L. Rev. Online 91 (2022). ↑

  8. One important trend beyond the scope of this Foreword is the penetration of technology into every aspect of life and law, which has had, and will continue to have, profound effects on both what we teach and how we teach it. The speed of communication, the explosion in the production of information, and the complexity of technological systems require law schools to educate students more extensively and with more specialized knowledge about technology. See generally Michele Pistone, Law Schools and Technology: Where We Are and Where We Are Heading, 64 J. Legal Educ. 586, 586 (2015) (arguing that “technology offers the attractive possibility of making legal education both more efficient and more effective”). Technology has also altered how we learn, teach, and collaborate. See, e.g., Kennedy M. Maranga, The Role and Impact of Technology in Legal Education (June 9, 2010) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520831 [https://perma.cc/WT9F-HGRQ] (suggesting that technology has changed both the classroom and legal practice). The ongoing COVID-19 pandemic has both accelerated the use of online teaching of various forms and reinforced for many the continued importance of in-person teaching and intellectual exchange. See, e.g., Morenike Saula, Crisis-Induced Innovation in U.S. Legal Education, 69 J. Legal Educ. 679 (2020). ↑

  9. McCrary et al., supra note 2, at 553 (“As for credentials, in 2000 ‘the prototypical new law teacher graduated from an elite school (most often from Harvard or Yale), was on the staff of the law review or another journal while in law school, clerked for a judge (usually a federal judge), published one or two articles or notes (though many published nothing at all), and practiced for several years (usually in a law firm or a corporate counsel’s office) before entering academia.’”) (quoting Richard E. Redding, Where Did You Go to Law School? Gatekeeping for the Professoriate and Its Implications for Legal Education, 53 J. Legal Educ. 594, 596 (2003)). ↑

  10. Id. (noting that 28% of law professors at the top thirty-four law schools hold Ph.Ds, compared to 5% of all law professors in 1989); see also Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 J. Legal Educ. 506, 507 (2016) (“[T]he overall trend is unmistakable. Ph.D. hiring is increasing rapidly.”). ↑

  11. Kim Diana Connolly, Elucidating the Elephant: Interdisciplinary Law School Classes, 11 Wash. U. J.L. & Pol’y 11, 19–20 (2003). A full reply to such criticism is beyond the scope of this brief Foreword. ↑

  12. Peter A. Joy, The Uneasy History of Experiential Education in U.S. Law Schools, 122 Dickinson L. Rev. 551, 574 (2018); see also Daniel Thies, Rethinking Legal Education in Hard Times: The Recession, Practical Legal Education, and the New Job Market, 59 J. Legal Educ. 598, 599 (2010) ([T]he recession “put a premium on job candidates with practical skills, those on whom [legal employers] will not have to spend time and money before they are ready to practice.”). ↑

  13. Joy, supra note 11, at 576–80. ↑

  14. See University of Virginia School of Law, Courses, https://www.law.virginia.edu/courses [https://perma.cc/2L28-QYBX] (last visited Feb. 14, 2022). ↑

©Virginia Law Review Association. All rights reserved.