Submitted by Rory Bahadur
Washburn University School of Law
Rob Trousdale, White Privilege and the Case-Dialogue Method, 1 William Mitchell Law Raza Journal 29 (2010) [Read fulltext at William Mitchell Law Raza Journal website]
Trousdale’s rather brief piece is thought provoking and controversial and its central thesis is, “the dominant legal pedagogy, the case-dialogue method, perpetuates white privilege through active subordination of minority law students.”
Initially, the case-dialogue method is couched as a Langdellian invention to save law schools from ceasing to exist as academic institutions. Its genesis was necessary because law was not regarded as an academic discipline but rather as a craft in the 19th century. As a result legal education consisted in large part of apprenticeships and the academic institution of the law school was threatened.
According to the author, Langdell, by contrast, considered the study of law a science. He reasoned that there were objective principles which could be discerned that governed legal decision on a broad level. He considered appellate level decisions as authoritative pronouncements of these objective discernable principles. Hence this iteration of law as science facilitated scholarly thought about the law and the validity and necessity of the law school as an academic institution was realized.
By the early 20th century this Langdellian law-as-science viewpoint was the dominant viewpoint in legal education. It remains this way today. There were challenges to Langdell’s viewpoint, most notably by the legal realists in the 1920s. The realists suggested, “legal rules and principles meant little if they were not analyzed within a broader social context.” Langdell’s approach did not consider anything outside of the actual court opinions however.
The author next addresses some of the false presumptions of the case-dialogue method and he begins this section with a wonderful quote from Michael Cooper, “There is a real danger that inculcation into a legal culture – learning the rules of the game – can divert the initiates into a love of legal reasoning for its own sake. Seduced by the search for elegance and coherence and obsessed with technique, they lose sight of the ends and purposes which the law is intended to serve.”
The author identifies the major deficiency of the case-dialogue method as its failure to recognize the law as a human science rather than a natural science. Most scholars have already acknowledged that the law is sociological or “a construction of society’s cultural values.” Yet the case method perpetuates the notion that the cases contain valid and objective normative principles.
Summarily, the author suggests that these principles perpetuate white privilege because Langdell assumed the objectivity and existence of these principles “at a time, when nearly all lawmakers, legal educators, and law students were white.” Furthermore, the author explains, “far from interrogating [the white privilege-based assumptions in the law] the case method reaffirmed them and the law was analyzed form the perspective of the absolute validity of these principles announced in court decisions.”
The author then quotes Kimberle Creshaw as follows:
While it seems relatively straightforward that objects, issues, and other phenomena are interpreted from the vantage point of the observer, many law classes are conducted as though it is possible to create, weigh, and evaluate rules and arguments in ways that neither reflect nor privilege any particular perspective or world view. Thus, law school discourse proceeds with the expectation that students will learn to perform the standard mode of legal reasoning and embrace its presumption of perspectivelessness.
This unfortunately leaves minority students in the unenviable position of suppressing their different perspective so the law can be discussed objectively or “accepting and asserting their identity and risking being ostracized for failure to think like a lawyer.” Ultimately then, the objective rules and principles we seek to discern from cases scientifically and objectively via the case method affirm the normativity of white privilege even if this is as unconscious affirmation.
The author concludes by suggesting a different conceptualization of the purpose and structure of law teaching and to do so he quotes John Calmore as follows:
Our primary goal [should be] to enable students to read law critically with a special sensitivity to the ways in which legal techniques, rhetorical strategies, and legal practices reproduce patterns of power and privilege that work to subordinate people based on categories of identity. The materials [should be] designed to reveal these strategies through close readings of the language and underlying assumptions in judicial opinions. Students [should be] encouraged to examine legal opinions for their similarities and differences in approaches to power and privilege across identity categories and to compare them with insights garnered from the wide range of multidisciplinary scholarly excerpts surrounding the case texts.