Poetry in Commotion: Katko V. Briney and the Bards of First-Year Torts
by
Andrew J. McClurg

During a classroom discussion of Katko v. Briney, the infamous Iowa spring gun case, a first-year Torts student unknowingly taught me an important lesson about the stultifying effect of the Socratic method on creative thinking.

In Katko, Marvin Katko sued Edward and Bertha Briney after he broke into their unoccupied farmhouse intent on stealing their property and ended up losing a portion of his leg to a shotgun wired to the bedroom door. The jury awarded Katko substantial compensatory and punitive damages. The Brineys had to auction 80 acres of their farm to pay the judgment. The reason Katko won? The law values life over property.

Or at least I always thought that was the reason until a student named Fufa Fullerton set me straight. It happened three years ago on a sweltering September afternoon during the last dog days of Arkansas' interminable summer. Ms. Fullerton, a mature woman who attended Smith College back in the '50s, was three weeks into her law school career. I called on her and asked her to explain how Marvin Katko -- a felon! -- could possibly have prevailed over the poor Brineys. She pointed resolutely to the photographs of the parties that are included in the Prosser casebook and said in her native Arkansas accent, "I think the plaintiff won because he's a hunk."

Straining to be heard above the laughter of her classmates, I commented that her perspective on the case was "interesting" and "novel," then moved with warp speed to another student who, mercifully, gave me the right answer: "Defending property never justifies the use of deadly force." Good boy.

However, back in my office preparing for the next day's class I came across Marvin Katko's photograph and studied it closely for the first time. There he was: penetrating blue eyes, dimpled chin, great head of hair, full lips hinting of a seductive smile. Good Lord! Fufa Fullerton was right. Katko was the spitting image of a young Paul Newman. My eyes drifted to the opposite page where the Brineys stood in front of their tragic farmhouse: grim, unforgiving, winter parkas drawn tightly around their unattractive faces.

Who was I to say that Marvin Katko's good looks did not help him win the case? The more I thought about it, the more plausible it seemed. Investigation disclosed a large body of research demonstrating that physically attractive people enjoy many advantages over their less beautiful counterparts. Learned Hand said, "Juries are not leaves swayed by every breath," but perhaps a wink from Katko's limpid eyes was enough to do the trick.

My rumination about Katko v. Briney started me thinking more generally about the suffocating environment the Socratic method imposes on original expression. Episodes like the one I experienced with Katko are not uncommon. Many of us like to believe we foster a vibrant classroom learning environment, but mostly we fool ourselves. It is easy to confuse a successful bag of teaching tricks with vibrance. True vibrance would require an open mind, risk taking, spontaneity, inconsistency in presentation, and a relaxed freedom to speak openly, but these ingredients are missing from most law school classes.

On the surface, a Socratic teaching regime would appear to be an excellent way to stimulate creative thinking. After all, questions require answers and answers require thought. The problem is that most of the questions law professors ask have prefabricated answers attached to them -- answers that the professor long ago accepted as correct, often with enough moral certainty to formalize them in his or her class notes. The result? When we enter the classroom we are not on a mission of discovery or exploration, but on a search for preordained correct solutions. It is somewhat like going on a treasure hunt with the jewels in your back pocket.

The losers in this process are the creative thinkers. "New" ideas frequently are considered "wrong" ideas. The most successful students usually are not those who are able to think for themselves, but students who are talented at mimicking the way others, principally their professors, think. Danger lurks for students courageous or foolish enough to misunderstand this regimen. Just ask Fufa Fullerton. Her reward for advancing an "appearancist" perspective on Katko v. Briney was laughter from her classmates and barely disguised scorn from her professor.

Identifying problems is easier than fashioning solutions to them. Stung by my narrow- mindedness, I set my laggard brain to the task of developing a new way to address Katko v. Briney. When the case came up the following year, I assigned my students to write poems about it. The purpose of the exercise was to grant my students permission to think creatively about a controversial legal issue in a completely nonjudgmental context, a free-form luxury which, lamentably, they may never again enjoy as law students. The results were a fascinating mix of old and new insights about the case and commentary on the state of the law, delivered in every form imaginable, from serious poetry to silly songs to dark haiku.

On the right are just a couple of the many fine efforts submitted by my students. The rewards of this minuscule contribution to stimulating creativity in legal education (no more than a footnote to a brainstorm) exceeded my modest expectations for it. My students had fun, they explored the case more carefully than they would have otherwise, and they introduced me to new perspectives on the law. (To my surprise, one student echoed Fufa Fullerton's realist view of the case with a stanza that began: "Good looks can mean a lot, especially when you're shot ....")

More importantly, the poetry assignment symbolized a new awareness on my part of the need to encourage creative expression in the classroom. Where before I thought only I knew all the answers, I now try harder to force my students to give me their ideas (not just the ones they think I am looking for). Just as importantly, I try to listen better and react less judgmentally to those ideas. Though I do not always succeed, I believe these efforts have made me a better teacher.

Effective legal education requires structure and a tremendous amount of judging. Substance does count and there are many wrong answers that need correcting. However, in between all of that, there should be some opportunity for unrestrained, unevaluated creative expression. Otherwise, too many good players and good ideas never get into the game. Currently, there are virtually no such opportunities, other than a little poetry exercise about the day good-looking Marvin Katko got his leg shot off at the Briney farm.