Unearthing Subversion with Legal Archaeology

Article excerpt

I. Introduction

It is by now well-documented that the experience of attending law school creates among law students feelings of alienation and dehumanization.1 There is both anecdotal2 and empirical data3 supporting this psychological battering. In fact, it could be said that attending law school is hazardous for one's mental health: over the course of the three years an above average number of law students become depressed, and stay depressed.4

In theorizing ways to address this problem, the focus has been on how law school is taught. For example, the ritualized public humiliation of the Socratic method, a la Kingsfield,5 has been criticized.6 I am suggesting that part of the problem lies in the what of legal education. We are what we study. By studying primarily, and primarily in the first year, the detached, impersonal, ahistorical, acontextual analytical processes found in appellate opinions, we are stacking the deck for students to experience alienation and dehumanization.

I am also suggesting that it does not have to be this way.

I am going to talk about an approach to the study of law that is called "legal archaeology." I wish I could take credit for the term, but I "borrowed" it from Brian Simpson who compared cases to archaeological sites and suggested that they needed to be excavated in order "to make sense of them as events in history and incidents in the evolution of the law."7

I'll begin by describing what is meant by the term "legal archaeology." I'll explain why it can be considered a subversive approach to the study of law, and I'll give some examples. I'll also suggest that the methodology of legal archaeology shares some feminist characteristics. Finally, I'll address two potential criticisms of the pedagogical use of this methodology.

II. Description of Legal Archaeology

Legal archaeology is a kind of legal history that focuses on a specific case and reconstructs its historical and social context. Just as archaeologists reconstruct a site from clues embedded in the earth, legal archaeologists reconstruct the context of a reported opinion from clues embedded in the opinion, the trial transcript, and other contemporaneous documents.

Legal archaeology begins where most legal scholarship ends, with a reported case opinion. After selecting the case and analyzing the opinion, the methodology of legal archaeology involves three basic steps: (1) attempting to recreate as complete a record of the litigation as possible, including the trial and appellate records; (2) searching for pertinent information using non-legal sources, such as archives, newspaper accounts, biographies, and autobiographies; fieldwork, such as interviews; and non-legal secondary literature; and (3) formulating conclusions.

I want to emphasize that last step. The first two steps, particularly the search of non-legal sources, will usually turn up fascinating information, but just as with the archaeologist, it is not enough simply to find "neat stuff." The legal archaeologist's work is not completed until the new information is processed.8

This processing can lead to a variety of new insights. It might throw new light upon the litigation process itself, revealing insights into the systemic weaknesses of an adversarial mode of litigation. It might reveal how legal proceedings are influenced by, and influence, political, social or economic trends. It might illuminate the unexamined assumptions and unacknowledged biases of the participants in the process. It might reinforce, or call into question, the outcome in the case. It might do all of the above. Without such processing, however, the discovery of new information will lack a purpose.9

III. Subversive Potential

Legal archaeology can be done as scholarship or it can be used as a pedagogical method.10 Personally, I do legal archaeology as scholarship and then use that to inform and enrich my teaching. Others, such as my co-panelists, Professors Patricia Cain and Linda Kerber, use it as a pedagogical method and have their students do the legal archaeology. …