Applied Legal History: Case Study Seminar

As I suggested in my previous post, I think the best way to teach applied legal history is as a case study. Specifically, I have in mind a course modeled loosely on John Wertheimer’s collaborative research seminar, where students—working individually or (more often) in small groups—research and prepare reports or presentations on aspects of a larger research question. In contrast to John’s model, my course proposal assumes a slightly larger class (20 students, the usual size of one of my legal history courses at the law school) and a mix of graduate students in history (or other social sciences) and law students

The final output of my course is also, potentially at least, somewhat different than John’s. Where he sets the goal as a “collaborative research paper that is so well conceived, so thoroughly researched, and so finely written that it gets published,” my aim is to produce a collection of interlocking studies that add up to an article symposium (perhaps in the law school law review) or, where possible, a digital display that is both an archive of our research and a public presentation of our work. (For an example of a seminar that produced a digital collection, see here.)

How would it work? On the theory that showing is better than trying to describe an abstraction, I’m going to set out an annotated syllabus for one case study seminar below. Then, after sketching out the syllabus, I will offer a few working notes to elaborate on some of the assumptions in the syllabus.

One additional note before we get to the syllabus: it describes a legal history class that is the literal study of a case, Gideon v. Wainwright, which I picked because of its recent anniversary, the fact that it began as a “local” case, which makes extensive research easier, and because a quick search turned up no extended digital presentations on it.  Its implementation also raises some important questions for the current state of criminal justice.

But while a court case is an obvious venue for a case study in legal history, it is not the only type of case study possible, even for a legal history course. It might be possible, for example, to design a seminar that engaged a wide range of legal and historical issues by setting up a seminar that looked at the legal and historical issues raised in the ongoing forensic archeological work on deaths at the Dozier School, here in Florida, for example. Such a case study would have the advantage of adding another layer of collaboration to the seminar.

 

Working Syllabus, Gideon v. Wainwright

 

Intended for law students (second or third year) and graduate students in History or related fields. Graduate student participants should also have at least a year of graduate training.

The class is a three credit hour course that meets in a three-hour block, once a week. For several weeks, actual class time will be far shorter—one or one and a half hours a week—while students work on their research.

Grading will be based on the final project (40% of the grade), the draft project (20% of the grade), the preliminary research project(s) (20% of grade), and participation in seminar discussions (20% of grade).

First day reading: Lewis, Gideon’s Trumpet

Week 1: Using Gideon’s Trumpet as a starting point, class begins to identify topics for a research project and to tentatively assign those topics to broader categories that might be used to frame the final project. Each student is assigned 1-2 of the potential topics and asked to report back the next week with a brief assessment of topic feasibility (students are encouraged to consult with librarians at the law school and/or other campus libraries for help in locating possible sources). Students are also assigned to read the Supreme Court opinion in Gideon v. Wainwright for the next class.

Week 2: Students report back on feasibility of topics and sources. The broad categories for study, sketched the previous week, are reorganized in light of these reports and the reading of the Supreme Court opinion. Based on that reorganization, the class breaks down the probject into subtasks to be performed by research subgroups. One possible break down would be: 

• Narrative group: 5 students. This group will recast the history of Gideon v. Wainwright. One subgroup will focus on Gideon’s side of the story, seeking to learn more about Gideon, the events leading up to his arrest, his trial, his appeal, and his life after the Supreme Court decision. The other subgroup will explore the State’s of Florida’s side of those events. [Possible sources, appellate briefs, news reports, court records, census and other government records, oral history interviews.]
• Legal past group: 5 students. This group will explore the pre-history of the right to counsel. One subgroup will consider the development of the doctrine established in Betts v. Brady and its application in subsequent cases. Depending on the skills of the members of this group, this might pose an opportunity for empirical legal research that looked to quantify the impact of the rule in Betts in a variety of ways. Another subgroup will consider the political, social and economic factors (and legislative debates, if any) that gave rise to Florida’s approach to the right to counsel in the years before Gideon.
• Larger context group: 5 students. This group will examine the Warren Court’s decisions on the right to counsel at various stages of the criminal process. These projects will try to determine what problem, or problems, the right to counsel decisions were trying to solve and what assumptions they rested on about the role of lawyers in the criminal justice system. One subgroup will look at court decisions (state and federal) about the right to counsel and the role of lawyers in criminal trials between Betts and Gideon. Another will look at scholarly writing about the role of lawyers in criminal justice during that same period.
• Fifty years of Gideon group: 5 students. This group will consider the impact of Gideon, paying particular attention to its impact on the right to counsel in Florida. One subgroup would explore this question empirically, using quantitative research tools if possible. Another subgroup could conduct oral history interviews of judges, lawyers (defense attorneys and prosecutors), and, if possible, former criminal defendants or other participants in the criminal justice system. Some members of this group might also explore discussions of Gideon and/or the right to counsel in less traditional media, using data mining tools to search the web (for a sample of this sort of research, see here).

Weeks 3-4: Each week the seminar meets for the full three hours to work out the assignments above and to discuss problems that arise at the initial stages and offer research suggestions.

• During these weeks, there may be visits by professors or scholars with particular expertise in various areas (from oral history to statistical analysis).
• There may be break out sessions for particular sub groups: For example, students engaged in oral history interviews may spend part of these periods working on tasks specifically related to those projects (preparing IRB proposals where needed for oral history interviews, preparing interview scripts, etc).
• Where oral histories are planned, the entire group should have a discussion with a historian trained in oral history work to discuss the special ethical implications of oral history.
• Students working on quantitative projects (for example) may break out for special training.

Weeks 5-7: Meetings reduced to 1-1 ½ hours, used to discuss issues of research and other concerns that arise. Groups continue work on research projects.

Week 8: Working reports on projects presented to the group. Discussion of whether some projects need to be refined or refocused based on research to date. In addition, discussion at this point will also turn to how research will be presented.

Week 9: Further discussion of how a collective project might be organized and the practical and ethical implications of that decision. This discussion may involve guest experts. For example:

• Where the class expects the final product will be a public history display, this session should include a discussion of the best practices of public history and debate over the best digital techniques to use to present the material.
• Where the final product will be a web archive, the discussion should involve librarians knowledgeable about metadata issues.

Week 10: No class. Research groups hold separate meetings with professor(s) to discuss revisions and modifications (these meetings offer an opportunity to make sure that all members of the group are participating fully in the research projects).

Weeks 11-12: Meetings reduced to 1-1 ½ hours, used to discuss issues of research and presentation that arise. Groups continue work on research projects.

Week 13: Presentation of penultimate drafts of research projects (perhaps at a public forum or setting?) for final critique.

Week 14: No class. Final drafts of projects due 15^th week.

 

Working notes:

First, as I noted in my earlier post, the chief goal of this seminar is to have students engage in an extended research project in a dynamic setting. The project is dynamic in the sense that the questions it engages, the evidence that can be gathered, and the resources that may be used to present the findings at the end, may all evolve over the course of the semester and students will have to work out how to engage them. That makes the project much more like what lawyers, historians, and policy workers actually deal with than canned or simulated assignments, and is one of the great benefits of problem-based courses.

Second, another goal of the seminar is to have students from different academic backgrounds work together in order to see how and why they approach a particular problem from a variety of perspectives. At one level, that will happen simply by virtue of the groups doing presentations on different projects to one another over the course of the semester. But ideally, that also means that each subgroup will have a mix of students (some law, some history) in them. Depending mix of students in the class, that may be more or less feasible.

Third, and relatedly, another reason why the different projects are conceived of as work done by subgroups (rather than as work done by individuals who come together at the end of the semester) is that this provides practical training in working as part of a group or committee. Given the emphasis on working groups and teams (from trial teams to project teams) in most occupations these days, it seems reasonable to encourage students to pick up these skills.

Finally, as the descriptions of the various weeks’ activities suggest, the seminar is designed to try to introduce students to a range of research techniques and ways of presenting information.  Again, the range of possibilities depends on the availability of faculty and student experts, but in a perfect world, the student groups will engage in everything from close reading and statistical analysis (and other empirical techniques) to oral history, and will present their work in a variety of ways (from written reports to mapping to other digital techniques. There is obviously not enough time to make all students proficient in all techniques, but there should be enough time to introduce students to the range of options out there, and their uses.

 

One final note: Since a research projects can take a significant amount of time, a single semester course may not allow the class time to produce a final exhibit or symposium. One way to do that would be to give students the option of a second, two-credit hour course devoted to organizing and presenting the final collective project. More realistically, several students from the seminar could do an independent study in the next semester that would pull the project together.

 

Comments

[anon]

Seems like a great college course, or, perhaps, a course well-suited for "graduate students in History" and conducted by faculty in that department.
Interested law students might be permitted to attend.
Playing the violin while the heat rises all around the legal academy is, well, distracting.
Not to say the music isn't enchanting. And meaningful. And important.
It is simply the case that playing this music isn't lawyering.
This excellently designed series of posts is pitching course(s) of marginal utility to lawyers. Sure, an argument can be made that this exercise would be of some benefit to some persons attending law school. But that argument would apply to almost ANY field of rigorous study.
(Hence, the misguided hiring at law schools of late, seeking out persons who specialize in ANY field other than law based on the claim their field of study "intersects" with law (a claim that could apply to nearly EVERY field of human inquiry).)
At this point in the history of legal education, the course described and courses like it should be offered in other departments of the university (History, Journalism, etc.)
Law schools need to go back to thinking about lawyering and preparing their students to be lawyers. A "well rounded" background in the liberal arts may be a great criterion to measure applicants to law school, but it is not properly the principal purpose of a legal education in an American law school.

[Jason Solomon]

I'm sympathetic to anon's claim that law schools need to focus on lawyering, but I think this course -- which sounds very cool to me -- actually would do that much better than most upper class courses by having students practice: (1) working in teams; (2) designing and executing factual and legal research strategies; and (3) presenting material in creative and compelling ways. It's legal history but also a "skills" course. Very smart.

[anon]

Jason
Good points. However, as stated above, the trick here is to see that almost any rigorous activity satisfies various aspects of "skills" training that can be claimed to relate to lawyering.
For example:
(1) working in teams;
Yes. This, and football.
(2) designing and executing factual and legal research strategies;
Yes. This, and every scientific pursuit.
(3) presenting material in creative and compelling ways.
Yes, this, and journalism too.
The overinclusive nature of claims of "intersections" makes law school a roof under which lots of profs who purport to be teaching students to be lawyers are not doing that, and really, don't know how to do that.
There is a crisis now in legal education. THis crisis hasn't been caused by the economy alone. It isn't BigLaw, and it isn't the "scam bloggers." These excuses don't wash.
Is the solution to this crisis a stubborn refusal by the legal academy to face the truth: that losing touch with the practice of law has had dramatically negative consequences?

[Alfred L. Brophy]

Anon, thank you for participating in this conversation. Your contributions improve this blog and the debate about legal education more generally.

Elizabeth is suggesting some ways that studying history can be made more relevant to law students. Elizabeth is thinking about collaborative work that draws on legal knowledge and develops a set of skills including research, interviewing, and writing. Could this be done by people without any legal training? Perhaps, but not easily and not as well.

To take a personal example here. When I was working on the Tulsa riot of 1921 a lot of my data came from the lawsuits filed by riot victims and how the riot represented the breakdown of the rule of law, as well as the administrative and legislative responses to the riot and the military tribunals set up in the early 1920s to investigate the Klan in Oklahoma at that time. Those records could have been researched -- but rarely had been -- by the many historians and journalists who'd looked at the riot before me. One of the things that I emphasized was the role of official actors in the riot, which is a theme of particular importance if we're trying to put this into a legal framework (though it is a topic of less importance to historians).

I'm not sure this is the best thread for working through the nth iteration of who'e to blame and in what proportions for the employment crisis in the legal profession. I think courses that provide rigorous writing and research experiences for students and give them an opportunity to prepare white papers can be very helpful and meaningful educational experiences.

I am going to think some more about your comments.

[anon]

Prof Brophy
I thought about the possibility that questioning the efficacy of a practical course based on "history" writ large might suggest that your work, and the work of others, is not meaningful, important, valuable and of great interest to me and I'm sure many others.
So, let me say, without hesitation, that the work you do, and the way you do it, is a inspiration to many, including me. I've found you to be courteous, scholarly, insightful and basically, if I'm reading your posts here and your work right, a very honorable person and productive member of the law academy.
You deserve respect.
In another place, Elizabeth has posted a response to the questions I raised above. I suspect my concerns were anticipated, and her response is thoughtful. I may post a comment or two there.
I'll conclude here by saying this: I don't think the crisis in legal education relates only to one factor: employment prospects factor in, but, as you probably know, my belief is that the American community is underserved by attorneys (see, e.g., a recent piece in the New Republic agreeing, and calling for "Judicare.")
My overall sense is that law schools have lost a sense of mission. In my view, that mission is decidedly not to replicate a liberal arts education, or attempt to incorporate all the other departments of a university under the roof of a law school. Here is where, I'm sensing, we may respectfully disagree.
Every aspect of human life in this country is addressed, in some manner, by "the law." The practice of law and participation in the legal institutions of our society requires the exercise of a deep variety of skills, and is made more effectual by reason of a traditional liberal arts education. These truths must never, in my view, mean that law schools lose touch with reality: and that reality is that law schools, for almost everyone who attends them, are meant to prepare students to serve others by way of participation in the legal system that affects all of our lives so significantly.
The course described above presupposes "a mix of graduate students in history (or other social sciences) and law students."
Law students should certainly be able to attend such courses, offered by the relevant departments of the university. This course does not, as described, even require any background in law school at all. As such, it is not, in my view, a course best offered as an upper division law school course.

[Alfred L. Brophy]

Thank you, anon, for the kind words.