Pedagogical Subversion in Clinical Teaching: The Women & the Law Clinic and the Intellectual Property Clinic as Legal Archaeology

Article excerpt

Legal pedagogy provides an important site for the subversion of dominant conceptions of law. For more than two decades, feminist law teachers have sought to enable our students to understand how the law interacts with social power to shape women's experience in society, to critique how the law operates in any particular situation with regard to gender, and to convey how lawyers have space to shape new legal tools that challenge the oppression of women in society. Feminist law teachers have taught about how the discourse of the law affects women's lives and how the material forces that shape women's experiences are related to legal rules and legal institutions. We have designed methods both to help students analyze problematic conceptions of women and gender that appear in legal texts and to foster in students alternative ways of approaching law that help to challenge oppressive practices that harm women. Thus, throughout its history, feminist pedagogy has had both a critical and a transformative agenda.

Our pedagogical efforts have developed over time, reflecting our changing understandings of the relationship of law, sex, and gender. They reflect the constraints and possibilities that have confronted us within the context of our particular educational institutions. As are other forms of feminist thought and action, feminist legal pedagogy is dynamic. Feminist pedagogical innovations may be suppressed or embraced; they may be ridiculed or celebrated. A feminist pedagogical innovation, once introduced, not only changes the contours of legal pedagogy, but is changed itself. What begins as subversive may be accommodated, distorted, expanded, or transformed once it becomes a part of legal academic culture. Therefore, as with all aspects of feminist legal thought and action, we must constantly reassess the impact and meaning of our pedagogical practices.

Despite recurring challenges from a variety of critical perspectives, American legal education, to a great extent, has continued to be about the authoritative pronouncements of doctrine by courts.1 Primarily, students read and dissect appellate cases. Statutes and administrative rules make a supporting appearance, as do excerpts from other disciplines. Many law teachers, among them feminists, have, within the spaces available to them at their own institutions, introduced modifications of this basic model.2 Some use critical readings to expose students to multiple and conflicting interpretations of cases.3 Others conduct simulations in which students work with a legal problem in the context of a lawyering activity. Still others, through clinical programs, have students provide representation to clients under the supervision of faculty and reflect upon their activities as lawyers, the experiences of clients, and the operation of legal institutions.5 These efforts and countless others have in large and small ways challenged the fundamental model of American legal education. Feminist law teachers have been at the forefront of efforts to change legal pedagogy and the implicit lessons about law and legal institutions that it conveys.

This panel on Subversion Through Pedagogy has examined how three different, yet related, pedagogical practices destabilize one aspect of the dominant form of legal knowledge. The three practices all question the assumption that law is only, or even primarily, the pronouncements of courts and legislatures. All three pedagogies diverge from the project of teaching a feminist critique of appellate court opinions. Engaging in critique of cases can implicitly transmit the lesson that official pronouncements constitute the law, even if feminist analysis of cases and statutes is substantially different from other approaches to case analysis. all three pedagogical practices identified here look beyond official pronouncements to find the law.

Professor Deborah Threedy presents "legal archaeology" as a subversive teaching tool, as well as a scholarly approach. …