Imagining Law: Visual Thinking Across the Law School Curriculum

This essay suggests change through evolution, not revolution. It argues that it is possible—and worthwhile—to integrate visual learning and visual analysis into doctrinal, clinical, and writing courses without tossing your textbooks or reconceptualizing your pedagogical methods. And you don’t need to kill yourself, or even expose yourself to ennui, doing it. In that vein, this essay offers three low-friction, hands-on ways to incorporate a visual element into whichever courses you teach. Use these visually inspired ideas for topics that interest you, or when you see a video or photo in a case or in the news that captures your imagination

The Socratic Method

The Socratic method, one of Langdell’s most well-entrenched reforms to legal education, remains the law’s signature pedagogical technique. Although the term means different things to different people, its essence in the law school classroom is student analysis of cases led by a teacher, who calls on students to articulate gradually deeper understandings of a legal doctrine or theory. Socratic learning requires students to think on the spot, answer precisely, and take intellectual risks. For over a decade now, the Socratic method has been out of fashion among those who write about legal pedagogy. In addition, the method’s critics describe what they view as the alienation and humiliation of students, an inattention to legal theory and professionalism, and a lack of clear learning outcomes. Indeed, both Best Practices for Legal Education and Educating Lawyers: Preparation for the Profession of Law criticized or downplayed the value of the Socratic method. Best Practices concluded that the Socratic method should be “used sparingly.” These critiques undervalue the Socratic method. As the Carnegie Report acknowledged, the Socratic method is an easily scalable, effective, deeply engaging way to achieve active student learning, particularly but not only in larger doctrinal classes. Similarly, Best Practices recognized that “[t]ailored and applied flexibly, the case method . . . can provide a logical, overall methodology for approaching and thinking about all sorts of situations.” Those positive findings remain true. The Socratic method gives students a strong incentive to prepare well for class every day, and during class it forces both students and the teacher to focus intensely, to listen to others, and to express their ideas in a cogent, persuasive, and professional manner. These qualities—thorough preparation, focus, listening skills, cogent analysis, and good judgment—are fundamental to successful lawyering. Finally, contrary to its reputation, the Socratic method is also a wonderful way to create a sense of community and shared learning purpose among students, even in a large class. These attributes of Socratic teaching look even stronger in comparison with the most commonly used alternative—lectures, perhaps punctuated by text-heavy PowerPoint slides. Indeed, while the method has fallen from favor in law schools, cutting-edge colleges are now seeking to expand Socratic-type interactive teaching in order to raise the level of engagement among students. In recognition of the continuing centrality and vitality of the Socratic method, this section therefore focuses on best practices for optimizing the effectiveness of this active learning style. The basics of the Socratic method are well described elsewhere (and will have been experienced by almost all readers of this volume).Therefore, this section will not describe the methodology in detail. Instead, it will situate the Socratic method within a framework describing the level of active learning of the most frequently used pedagogical techniques in the non-clinical law school classroom. Then it will focus on three fundamental tools for creating and maintaining a successful course that uses the Socratic method for active learning.https://digitalcommons.law.uw.edu/faculty-chapters/1009/thumbnail.jp

Pragmatism Rules

The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates both. This theory simultaneously advances our understanding of the Rules and challenges the hegemony of statutes, which currently provide the dominant — if not sole — blueprint for theories of interpretation

The Socratic Method

The Socratic method, one of Langdell’s most well-entrenched reforms to legal education, remains the law’s signature pedagogical technique. Although the term means different things to different people, its essence in the law school classroom is student analysis of cases led by a teacher, who calls on students to articulate gradually deeper understandings of a legal doctrine or theory. Socratic learning requires students to think on the spot, answer precisely, and take intellectual risks. For over a decade now, the Socratic method has been out of fashion among those who write about legal pedagogy. In addition, the method’s critics describe what they view as the alienation and humiliation of students, an inattention to legal theory and professionalism, and a lack of clear learning outcomes. Indeed, both Best Practices for Legal Education and Educating Lawyers: Preparation for the Profession of Law criticized or downplayed the value of the Socratic method. Best Practices concluded that the Socratic method should be “used sparingly.” These critiques undervalue the Socratic method. As the Carnegie Report acknowledged, the Socratic method is an easily scalable, effective, deeply engaging way to achieve active student learning, particularly but not only in larger doctrinal classes. Similarly, Best Practices recognized that “[t]ailored and applied flexibly, the case method . . . can provide a logical, overall methodology for approaching and thinking about all sorts of situations.” Those positive findings remain true. The Socratic method gives students a strong incentive to prepare well for class every day, and during class it forces both students and the teacher to focus intensely, to listen to others, and to express their ideas in a cogent, persuasive, and professional manner. These qualities—thorough preparation, focus, listening skills, cogent analysis, and good judgment—are fundamental to successful lawyering. Finally, contrary to its reputation, the Socratic method is also a wonderful way to create a sense of community and shared learning purpose among students, even in a large class. These attributes of Socratic teaching look even stronger in comparison with the most commonly used alternative—lectures, perhaps punctuated by text-heavy PowerPoint slides. Indeed, while the method has fallen from favor in law schools, cutting-edge colleges are now seeking to expand Socratic-type interactive teaching in order to raise the level of engagement among students. In recognition of the continuing centrality and vitality of the Socratic method, this section therefore focuses on best practices for optimizing the effectiveness of this active learning style. The basics of the Socratic method are well described elsewhere (and will have been experienced by almost all readers of this volume).Therefore, this section will not describe the methodology in detail. Instead, it will situate the Socratic method within a framework describing the level of active learning of the most frequently used pedagogical techniques in the non-clinical law school classroom. Then it will focus on three fundamental tools for creating and maintaining a successful course that uses the Socratic method for active learning.https://digitalcommons.law.uw.edu/faculty-books/1008/thumbnail.jp

Taking Images Seriously

Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts 150 billion photos. Courts spend millions on trial technology. But those innovations have barely trickled into the black-and-white world of written law. Legal treatises continue to evoke Blackstone and Kent; most legal casebooks are facsimiles of Langdell’s; and legal journals resemble the Harvard Law Review circa 1887. None of these influential forms of disseminating the law has embraced — or even nodded to — modern, image-saturated communication norms. Litigants, scholars and courts have been rebooting the same formalist templates for over a century — templates that were formed before widespread use of the camera, never mind the computer. Outside of trial, where image-driven advocacy has a long history, legal practice begins and ends with text. But over the past five years, for the first time — unrecognized by scholars or courts — creative trial lawyers, receptive judges and the iPhone camera are breaching these conservative bulwarks. Images are moving out of the evidentiary margins, driving argument in litigation documents from pleadings to judicial opinions. Unregulated, visual argument threatens fundamental premises of legal discourse and decision-making. Yet in comparison with law’s rich and detailed traditions for interpreting ambiguous text, lawyers and judges have few tools beyond common sense with which to ameliorate the interpretive risks of visual persuasion. “I know it when I see it” is not merely an aphorism; it is the reigning interpretive canon for images in law. This Article, the first comprehensive scholarly treatment of images in written legal argument, establishes and critiques the nascent phenomenon of multimedia written advocacy as a vital, if potentially problematic, element of a lawyer’s toolbox. It argues that despite substantial risks, the profession should cautiously embrace the communicative power of multimedia writing. It concludes by offering concrete suggestions for the fair regulation of multimedia persuasion, including two foundational canons of visual interpretation — the basis for developing new traditions for integrating images into written advocacy

Tort Liability in the Age of the Helicopter Parent

Discussions of parental liability by courts and legal scholars are often tinged with fear: fear that government interference will chill parental autonomy; fear that parents will be held liable for their children’s every misdeed; and, recently, fear that a new generation of so-called “helicopter parents” who hover over their children’s every move will establish unrealistically high legal standards for parenting. However, in the context of common law suits against parents, these fears are misguided. To the contrary, courts have consistently shielded wealthier parents — those most likely to be defendants in civil suits — from exposure to liability for conduct related to their parenting practices. This Article critically examines the common law of parental (non-) liability, both historically and in light of current cultural trends. Parental liability takes two forms: liability for parents’ harm to their children, and liability of parents for harms caused to others by their children. Individually these subjects have received remarkably little scholarly attention; together they have received none. Yet both types of parental liability are central to ongoing cultural debates about parenting, as well as to current controversies about the role of courts in establishing legal duty. A thorough re-consideration of parental liability is particularly timely in light of the new Restatement (Third) of Torts, which speaks directly to issues that are central to both forms of parental liability. This Article concludes that courts should hold parents to a standard of reasonable care. The American common law’s squeamishness about parental liability is understandable, but unnecessary. Just as helicopter parents overreact to unsubstantiated fears of stranger abduction based on anecdotes and media hype, limits on common law parental liability are overreactions to unsubstantiated fears of collusion, government interference and biased juries. To be sure, aspects of parental liability raise significant concerns, but courts can and should address them narrowly using established tort law principles, without imposing blanket no-duty rules. Juries, in short, should be allowed to judge parents

Reinvigorating Commonality: Gender and Class Actions

In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality—cohesion, unity—in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. Beginning in the civil rights era, feminism became an entrenched part of mainstream America Over time, however, feminism’s influence waned as critics from within and without the movement attacked fundamental tensions inherent in the feminist project and as so-called identity politics fell out of fashion. [para] This is not an empirical study, nor is it comprehensive. Rather, our aim is to generate thought as to ways in which class action doctrine simultaneously reflects and reinforces evolving views of feminism and gender equality. We acknowledge that class actions are not the sole standard bearers for impact litigation, and that individual suits—whether brought by individuals of any gender or by physicians—have been vital to the establishment of anti-discrimination legal norms in the area of gender equality. Even so, we argue that Rule 23(b)(2) suits continue to serve a vital function by allowing women to enforce those established norms, overcoming classic barriers to judicial justice such as lack of resources, lack of access to lawyers, and retaliation by employers against individuals who file suit. As Anita Hill recently argued in a critique of the technology sector, “Class action lawsuits can force industry-wide change, even in the most entrenched, male-dominated industries.

Visual Rulemaking

Visual politics are seeping into the technocracy. Rulemaking stakeholders—including agencies, the President, and members of the public—are deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. These images, GIFs, and videos usually do not make it into the official rulemaking record, so this new “visual rulemaking” world has not been discussed much by scholars or others. In this article, we explore the new visual rulemaking culture that emerged in Obama’s presidency, providing examples and discussing relevant policy implications. Although we recognize some risks, we argue that, on balance, visual rulemaking is a good thing because it can further transparency, accountability, and participation. Our article is adapted from a much longer one, Visual Rulemaking, 91 N.Y.U. L. Rev. 1183-1278 (2016)