Read on Twitter
Last presentation of the day is from Sherri Keene @ Susan McMahon ( @GeorgetownLaw): Confronting Norms in Legal Analysis and Storytelling @LWIonline #LWIOneDay2020
In our classes, we risk giving the impression that the law is neutral, and Profs. Keene & McMahon argue that we should be making those assumptions explicit. #LWIOneDay2020
Prof. McMahon starts us out with this oral argument clip to discuss shortcomings in the oral argument: #LWIOneDay2020
This year, she went back and read the opinion that this argument is discussing, Illinois v. Cabalas, and realized that the decision is disturbing--it is a harmful decision that entrenches police power in ways that many of us have begun to question. #LWIOneDay2020
The Court found that as long as the traffic stop was lawful, narcotics dog could be used without implicating privacy interests. #LWIOneDay2020
There is injustice at the heart of this opinion, which gives great power to police to conduct baseless searches, usually exercised against communities of power. #LWIOneDay2020
And it does so without mentioning race once or noting the harmful impact the decision will have on Black & Brown people. If we don't discuss this, we risk further entrenching these power dynamics. #LWIOneDay2020
We can discuss these questions with students to give them the tools to help them make change and to stop treating law as neutral. #LWIOneDay2020
We can ask these questions every time we discuss a case:
Who does this law advantage or empower? Who does it disadvantage? Is this the right approach? Why or why not? #LWIOneDay2020
Who does this law advantage or empower? Who does it disadvantage? Is this the right approach? Why or why not? #LWIOneDay2020
For example, in Prof. McMahon's class this semester, they were analyzing right of publicity. It appears neutral, but the statute invests some with power (those with value or celebrity attached to identity) and takes it away from others. #LWIOneDay2020
We want to get students to make it a practice to see where the law entrenches power and whether that is the right call. #LWIOneDay2020
The next step is to give students tools to understand that where they see injustice, these rules can be changed. They are actors in the law's evolution. #LWIOneDay2020
One strategy: they can use rule synthesis or analogies to move the law forward. #LWIOneDay2020
With analogical reasoning, they make a choice about which cases to analogize/distinguish. An advocate can expand or contract the power of precedent. #LWIOneDay2020
Another option: Looking outside of litigation tools, like grassroots organizing, legislation, op-eds. Legal reasoning is just one tool of many that we as lawyers have to make change. #LWIOneDay2020
For example, Prof. McMahon gives her students an op-ed writing exercise and asks them to argue for change. They have to choose the right target for the argument (legislature, general public?) and then make their case persuasively. #LWIOneDay2020
It allows them to hone their persuasion skills and see where litigation fits within a broader societal context. #LWIOneDay2020
Prof. Keene is focusing on making room for ignored citizen narratives in police encounters. #LWIOneDay2020
She realized that when we are making arguments in a courtroom, courts want the discussion to be limited to what is relevant to them. Because of that, when we are teaching legal writing, our discussions are focused on case law that is in a vacuum. #LWIOneDay2020
How can we have these discussions without using the opinions as the focal point? #LWIOneDay2020
She thinks of these as "pauses"--pausing to think about the broader story, pausing to think about what the cases are really about. #LWIOneDay2020
To think about police encounter stories, she tried to find two very different images of police--some might visualize the picture on the left or right, while others have more mixed experiences. When we look at cases, they look at police with a pretty narrow lens. #LWIOneDay2020
To pause to consider the context of the cases, she tries to think about what is missing in the discussion. For example, discussions of police interactions often focus on the perspective of the police officer without any discussion of the person who was stopped. #LWIOneDay2020
A question this raises--courts really not know the story that is left out or is this a choice? The dissenting opinions in some cases show where it was a choice. #LWIOneDay2020
Consider where counterstories might fit in and how they might make a difference. #LWIOneDay2020
Can point to dissents, opinions from other jurisdictions as examples of non-status quo. #LWIOneDay2020
This matters b/c it helps students think outside the box, look at laws critically, recognize bias in law, recognize outside voices and their absence, promote true diversity and inclusion, promote conversations, improve advocacy, and encourage change. #LWIOneDay2020
Thank you to @ProfSueMcMahon and @sherrileekeene for a great presentation to close out today's conference! #LWIOneDay2020
