Method and the Development of the Moral Imagination[i]
Dean and Edward J.
Yale Law School
A lawyer’s professional life
begins the day that he or she starts law school.
This has not always been the case, of course, but today the first phase
of almost every lawyer’s career consists of a period of time spent studying
law in a formal academic program under the supervision of university professors.
However diverse their professional experiences may be in other respects,
therefore, lawyers still share at least one thing in common: they have all been
law students at one time or another, and it is as students that their
professional habits first take shape.
single most prominent feature of twentieth-century American legal education is
its heavy reliance on the so-called case method of instruction.
By the case method I mean two things: first, the study of law through the
medium of judicial opinions, mainly appellate opinions, that have been rendered
in actual disputes; and second, the examination of these opinions in a spirit
that has often, and aptly, been described as “Socratic.”
Though this latter term is sometimes used to denote a distinctive style
of law teaching—one marked by an extreme of bullying and intimidation—it is
the term’s wider meaning that I have in mind.
By Socratic I mean both an unwillingness to take the soundness of any
judicial opinion for granted, no matter how elevated the tribunal or how popular
the result, and a commitment to place the conflicting positions that each
lawsuit presents in their most attractive light, regardless of how well they
have been treated in the opinion itself. Most
American law teachers today employ the case method of instruction in the broad
sense just defined.
It would be possible, of course, to teach the law by studying its
operation at the trial and pretrial levels rather than concentrating as
exclusively as American law teachers do on the decisions of appellate courts. But appellate opinions have the great advantage of bringing
out the legal issues in a case with an economy and a precision that trial
transcripts, for example, rarely do. To
be sure, appellate opinions also have a characteristic deficiency that most law
teachers recognize: they are typically mere distillates that leave out much of a
dispute’s original complexity and present its facts in an incomplete and
stylized way. But the usefulness of
appellate opinions as a vehicle for teaching the broad structure of the law
outweighs this deficiency and explains why they are used instead of transcripts
and briefs as the chief means for introducing students to the doctrine in most
This explanation for the heavy reliance on appellate opinions in American
law teaching immediately raises the question why most American law teachers do
not teach from treatises and textbooks instead?
If the aim is to familiarize students with the doctrine in a certain
field, why isn’t a textbook that sets out the relevant rules in a clear and
systematic way the best vehicle for doing so?
What advantage is there in making students study these rules obliquely,
by means of judicial opinions rendered in specific cases, rather than giving
them the rules directly? There are
three familiar answers to this question.
First, since class time is scarce, it seems reasonable to concentrate on
those problems likely to give students the greatest difficulty when they enter
practice, and these will by definition be the problems that arise at the
unsettled boundaries of a field, not those more routine ones that can be decided
by already well-established principles. Boundary
problems of this sort necessarily involve a clash of principles in which as
much, or nearly as much, may be said on one side as on the other.
The evenness of such contests means that at the margin of a field there
are, in fact, no controlling principles at all, but only cases—controversies
in which principles of roughly equal weight compete for precedence.
The case method is certainly the most economical and perhaps the only way
of giving students a feel for these controversies, for the boundary conflicts
that define, at any given moment, the margins of a field.
And from these conflicts it is easier for a student to construct an
understanding of the field’s settled interior than the other way around.
Second, in addition to a knowledge of legal rules, practicing lawyers
obviously also need skill in applying these rules to problems of a concrete
kind. A lawyer must be able to
apply the law to the complex, real-life dilemmas of clients.
And the case method of instruction, which buffets students with a steady
stream of such dilemmas, seems better adapted to the cultivation of this skill
than textbook expositions do.
A third justification for the case method is that it promotes rhetorical
abilities needed in law practice. Lawyers
are regularly called upon to defend their clients’ interests before strangers
in a public setting, often with little opportunity for advance preparation.
To be effective a lawyer must therefore be skilled at spontaneous public
speaking, and the case method of instruction—in which students are given no
advance notice of the positions they will be required to defend before their
classmates and under Socratic interrogation—seems the one best suited to teach
this skill: better suited, in any case, than an abstract discussion of rules or
principles that presents only familiar considerations of a general sort and no
new facts that students must incorporate into their extemporaneous arguments.
Each of these three justifications has merit, but each is also
incomplete. The first
justification, for example, tells us nothing about the way that boundary
contests in the law should be resolved. A
knowledge of general principles is clearly insufficient by itself to settle such
disputes, for by definition they present dilemmas that existing principles do
not straightforwardly decide. Is
their decision therefore arbitrary? If
not, what else must one know, what other skills must one possess, to decide
them? And how does the case method
teach these skills or convey the required sort of knowledge?
The second justification is incomplete as well.
No one will deny that the practice of law involves the application of
general rules to specific cases. But
the same may also be said of other disciplines, like medicine. The cases that doctors study differ, however, from those that
constitute the subject matter of the lawyer’s art. A law case is a fight or a contest; to say what it is, is
necessarily to describe a disagreement. By
contrast, to state a medical case—a patient’s presenting symptoms—is not
in the same way to report a controversy, though doctors may of course disagree
in their diagnosis of a patient’s problem. We might express this idea by saying that the problems with
which lawyers deal are constitutively argumentative, at least in
comparison with those of medicine. How
is this distinctive feature of the cases they confront reflected in the method
that is used to teach lawyers their craft?
The claim that the case method teaches law students how to apply general
rules to particular problems raises this question and brings it into focus, but
by itself provides no answer.
The third justification misses something too.
A good lawyer must of course be an effective advocate, and it is
reasonable to assume that this requires some skill at public speaking.
But effective advocacy demands more than the ability to speak
extemporaneously in front of strangers. It
also requires that one be able to distinguish persuasive arguments from
unpersuasive ones, and the third justification for the case method of laws
teaching has nothing to say about the meaning of this distinction or the way in
which the study of cases helps student to discern it.
And it ignores a basic feature of the method itself.
For while it is true that the case method forces students to practice the
art of advocacy by making arguments on behalf of imaginary clients, it also
compels them to reflect on the soundness of these same arguments from a judicial
point of view and thus, some of the time at least, to adopt an attitude more
neutral and inclusive than that of a committed advocate. These three justifications for the case method all lack one
thing: an appreciation of the way in which it functions as an instrument for the
development of moral imagination. It
is this aspect of the method I now want to examine.
The case method of law teaching presents students with a series of
concrete disputes and compels them to reenact these disputes by playing the
roles of the original contestants or their lawyers.
It thus forces them to see things from a range of different points of
view and to entertain the claims associated with each, broadening their capacity
for sympathy by taxing it in unexpected ways.
But it also works in the opposite direction. For the student who has been assigned a partisan position and
required to defend it is likely to be asked a moment later for his views
regarding the wisdom of the judge’s decision in the case.
To answer, he must disengage himself from the sympathetic attachments he
may have formed as a committed, if imaginary, participant and reexamine the case
from a disinterested judicial point of view.
The case method thus works simultaneously to strengthen both the
student’s powers of sympathetic understanding and his ability to suppress all
sympathies in favor of a judge’s scrupulous neutrality.
Most important, it increases his tolerance for the disorientation that
movement back and forth between these different attitudes occasions.
In this way he case method serves as a forcing ground for the moral
imagination by cultivating that peculiar bifocality that I earlier described as
its most essential property.
One aim of this complex exercise in advocacy and detachment is the
cultivation of those perceptual habits that lawyers need in practice. Forcing students to defend positions they do not believe in
or that they consider morally offensive may seem arbitrary and insensitive, but
it serves an important goal. The
student who is put in this position must strain to see the claim he has been
given to defend in its most attractive light.
He must work to discover its strengths and to articulate them, and this
he cannot do unless he temporarily puts his earlier convictions to one side.
In this way students get used to looking with a friendly eye even at
those positions they personally reject, and before long they acquire some skill
at identifying the strengths and weaknesses of whatever claim is presented to
them, those that are unfamiliar or morally distasteful as well as those they
recognize and endorse. Gradually,
much of this becomes habitual. One comes to see that the arguments for and against most
positions fall into certain stylized patterns, and to recognize which argument
forms are most appropriate to which causes.
Over time these insights come to shape the increasingly instinctive
scheme within which law students view the cases they are given.
The gradual acceptance of this scheme marks a change in perception, in
the way one sees legal conflict as well as thinks about it.
Or more precisely, since this distinction is to some extent an artificial
one, the way a law student learns to think about cases comes eventually to
affect how he perceives them, below the level of reflective thought.
This perceptual adjustment forms the core of the student’s nascent
professional persona, and is reflected in the habits and reflexes that
increasingly distinguish his approach to legal problems from that of a layperson
uneducated in the law.
Along with this perceptual adjustment, the case method tends to promote a
second change as well, a change in temperament or disposition.
The role-playing and Socratic interrogation that are its central features
force students to make the most of the conflicting claims presented by the
cases. It forces them to entertain
these claims from a sympathetic internal point of view.
This means more than granting that their proponents have the right to
assert them and accepting that they are not irrational to do so.
To entertain a claim, one must make an effort to see its sense or value
from the point of view of those who actually endorse it: to sympathize with
their perspective and not simply tolerate it.
The effort to entertain unfamiliar and disagreeable positions may at
first cause some awkwardness and pain. But
in time it increases a person’s powers of emphatic understanding and relaxes
the boundaries that initially restrict his sympathies to what he knows and
Some students find this experience disturbing and complain that the case
method, which makes every position respectable, undermines their sense of
integrity and personal self-worth. It
is easy to understand why. For the
discovery in oneself of a developing capacity to see the point of positions that
previously seemed thoughtless or unfair is often accompanied by a corresponding
sense of more critical detachment from one’s earlier commitments, and this can
lead to the feeling of being unmoored with no secure convictions and hence no
identity at all.
This experience, which law students sometimes describe, not
inappropriately, as the experience of losing one’s soul, strongly suggests
that the process of legal education does more than impart knowledge and promote
new perceptual habits. In addition
it works—is meant to work—upon the students’ dispositions by strengthening
their capacity for sympathetic understanding.
The strengthening of this capacity often brings with it the dulling or
displacement of earlier convictions and a growing appreciation of the
incommensurability of values, changes of attitude that many experience as
personally transforming. It is this
unsettling experience that underlies the law student’s concern that his
professional education threatens to rob him of his soul—an anxiety no mere
increment in knowledge or refinement of perception can explain.
It may seem implausible that the reading of appellate opinions can bring
such a transformation about. Appellate
opinions, after all, are typically rather dry documents that contain only an
abbreviated statement of the facts; that commonly avoid decision on the merits
but focus on the jurisdiction and procedure of lower courts instead; and that
frequently fail to present the losing side in its most attractive light (for the
obvious reason that doing so makes it easier for the court to justify its
decision in the case). These
characteristics might appear to make appellate opinions a poor vehicle for
stimulating the moral imagination of law students by forcing them to sympathize
with a diversity of points of view and to confront the impossibility of framing
a comprehensive scheme of values within which all conflicting claims may be
compared. If that is our goal,
would it not be better to focus, say, on the parties’ briefs and closing
arguments at trial, where the facts are likely to be presented more fully and
the positions of the contestants stated with maximum force?
The answer is no, for several reasons.
First, however incomplete the statement of facts in an appellate opinion,
it almost always contains some details embarrassing to the winning party.
These, so to speak, peep through the opinion and remind readers that the
losing party had some facts on its side too.
Second, the law teacher who teaches Socratically does not simply say,
“On the facts as reported the court held thus and such,” and let it go at
that. Rather, using the court’s
selective but manageable statement of facts as a starting point, he invites his
students to replay the case by considering whether the losing party might have
put its position in a more compelling form and then imaging what could have been
said in response. Often this means
teaching against the grain of the court’s opinion—by taking seriously facts
it downplays and arguments it rejects. But
many American law teachers teach this way, and since the appellate opinions that
are selected for inclusion in student casebooks are often chosen precisely
because they invite contrapuntal treatment of this sort, there is even a bias in
favor of such teaching. Third, if
it is objected that this can all be accomplished more easily by using other
materials (a dubious claim in any case, given the length and disorderliness of
most trial transcripts and the poor quality of many briefs), the response must
be that this objection misses the point. For
the students’ imaginative powers are most likely to be strengthened if they
are forced to work at reconstructing positions only partially visible to them
rather than being presented with these positions in already finished form.
The moral-educative function of law training requires that this work be
strenuous; that it be possible but challenging.
And the appellate opinion seems a particularly good instrument for this
because it is rich enough in facts to give students something concrete to work
with, but sufficiently schematic to make them struggle to reimagine fully the
parties’ conflicting claims.
These considerations help explain why appellate opinions are more likely
than treatises and textbooks, on the one hand, or briefs and transcripts, on the
other, to encourage the growth of deliberative imagination, as well as being
uniquely well adapted to conveying an understanding of legal doctrine.
But there is another element to the moral education law students receive
that is also linked to the study of judicial opinions and that would be missing
if their reading consisted of academic synopses or partisan statements instead.
Once we take this other element into account, moreover, reasons emerge
for viewing the negative, belief- and commitment-threatening side of the case
method in a more positive light.
The task of an appellate judge is twofold: first, to decide the
controversy before him, and second, to provide a set of supporting reasons for
the decision that he gives. Both
his decision and the rationale for it are set forth in the opinion the judge
issues at the conclusion of the case. Of
course, the parties to a legal dispute also often prepare documents of their own
stating their version of the case. But
it is the judge who has the final word, and his opinion enjoys priority over
theirs. It establishes the point of
view from which every other viewpoint must be assessed.
Thus while it may in one sense be correct to describe the judge merely as
another actor in the drama of the case, within the structure of this drama his
perspective occupies a dominant place.
In the case method of instruction, the priority of the judge’s point of
view is reflected in the disproportionate amount of class time typically devoted
to questioning whether the case at hand was rightly decided, a question that
must by definition be approached from the perspective of a judge whether one
agrees with the decision or not. The
case method is largely an exercise in forced role-playing. But it is important
to remember that among the roles students are invited to play is that of a
judge, and to recognize that the priority of this role over others is embedded
in the method itself.
If the effort to entertain the claims of the parties to a lawsuit demands
enlarged powers of sympathy and leads to a loss of ideological conviction, to a
blurring of the distinction between right and wrong, and to a diminished faith
in the commensurability of values generally, the case method’s emphasis on the
priority of the judicial point of view underscores the need to conclude the
dispute despite these certainties and to do so not by fiat but in a
reasoned and publicly justifiable manner instead. In this way the case method provides its own counterweight to
the student’s growing acceptance of complexity and pluralism in the realm of
values, and blocks the slide to what might otherwise become the cynical
celebration of arbitariness. It
does this by habituating students to the need for reasoned judgment under
conditions of maximum moral ambiguity, and by giving them practice at rendering
such judgments themselves. The
result is a combination of attitudes in tension with one another: an expanded
capacity for sympathetic understanding coupled with the ability to see every
claim with the coldest and most distant, most judicial, eye; a broad familiarity
with diverse and irreconcilable human goods coupled with an indefatigable
willingness to enter the fray, hear the arguments, render judgment, and
articulate the reasons that support it, even when all hope of moral certainty is
gone. At war with itself, this
complex set of attitudes nonetheless describes a recognizable moral ideal, an
ideal closest, perhaps, to the public-spirited stoicism implied by the Roman
term gravitas, but in any event distinguishable from the indifferent
cynicism that some believe the case method of instruction tends inevitably to
produce. No doubt it sometimes
does, and the fear that a person may lose his soul in the process is to that
extent justified. But the aim of
the case method is otherwise. For
what it seeks to produce, ideally at least, are stoics rather than cynics, a
distinction that becomes clear only when the priority of the judicial point of
view and its function as a counterweight to relativism are recognized to be
essential features of the method itself.
The privileged position that the case method assigns the judicial point
of view has another important consequence.
Judges are expected to decide cases in a disinterested manner, meaning
without concern for their own personal advantage.
This does not mean, however, that a judge approaches his task without
interests of any kind at all. There
is one interest that all judges are allowed and whose absence in a judge is
indeed considered a deficiency. That
is the judge’s interest in the administration of justice, in the integrity or
well-being of the legal system as a whole.
The judge’s interest in the well-being of the law encompasses a variety
of concerns—the concern for doctrinal coherence, for example, and for the
responsiveness of doctrine to social and economic circumstances.
It also includes a concern for the bonds of fellowship that legal
conflict strains but that must be preserved to avoid other, more destructive
conflicts. The judge’s interest
in all these things—which, far from compromising his authority, helps to
constitute it—might be characterized, in general terms, as an interest in the
good of the community represented by the laws.
The judge’s interest is thus broader or more inclusive than the
interests of the parties. They are
interested in their own separate welfare. He,
by contrast, is concerned with the well-being of the larger community of which
they are members, the community constituted by the laws the parties have invoked
to settle their dispute. The
judge’s attitude is in this sense more public-spirited than theirs and his
point of view more communitarian.
When law students play-act at being judges, as the case method requires
them to do, it is this public-spirited attitude they must assume. To begin with, the attitude is likely to be one most students
merely “put-on,” in the way an actor puts on a mask. It is too disinterested, too remote from most students’ own
partisan convictions, to be an attitude they experience as their own.
But the built-in priority the case method gives the roles of judge and
constant practice at playing it tend in time to blur the line between what a
student puts on and what belongs to him in his own right.
By a process of transference that the case method deliberately exploits,
the judicial attitude that a student begins by mimicking becomes to some degree
his own, and the student himself takes on a measure of the public-spiritedness
that distinguishes the judge’s view of legal conflict.
The student to whom this has happened tends instinctively to look at the
law and to argue about its meaning in the same way that a judge would, and even
more important, to care with new intensity about the good of the legal system
and the community it represents.
One could of course devise a system of legal education in which the
judicial point of view did not play the central organizing role it now does.
Law students might be made, for example to consider problems from the
point of view of a legislator rather than a judge.
But a program of this sort would be less well-suited to the cultivation
of civic-mindedness. No one doubts
that legislators sometimes act for the sake of the public good, the good of the
whole community whose laws they are empowered to enact, repeal, and adjust. But the actions of legislators are also often directed toward
private ends, toward the advancement of the partisan interests of their
constituents, the small groups of citizens that elect them and whose frequently
parochial points of view they have pledged to represent.
Public-spiritedness and partisanship are thus tangled up in legislation.
In adjudication, by contrast, the civic-minded attitude appears in purer
form. Unlike legislators, judges
are expected to attend to the public good alone, and any deviation from this
attitude, though acceptable in the sphere of legislation, is generally
considered a failing in a judge. Without
denying that civic-mindedness plays some part in the work of legislation, we may
therefore say that it defines the judge’s point of view in a more
exclusive way. The priority that
the case method gives to this point of view reflects the belief that it is part
of what lawyers must be taught. It
confirms that one purpose of their professional education is to acquaint lawyers
with the attitude of civic-mindedness most perfectly exemplified in the work of
judging and through repeated mimicry to inculcate this attitude in them as a
It is worth observing that this same purpose cannot be ascribed to every
scheme of professional education that employs some form of case method as the
vehicle for studying human conflict. Many
business school programs, for example, use a version of the case method to study
problems of entrepreneurship and management.
The business school “case” resembles its law school counterpart in
several respects. It, too, presents
a concrete situation involving different actors with partly conflicting and
partly cooperative interests, and challenges the student to discover or invent
an appropriate solution to the problem. But
the case that business school students study is simply a set of facts and not,
as in law school, a judicial opinion. The business school case is not a problem conceived and
articulated from the point of view of one who is expected by virtue of his
office to be single-mindedly concerned with the promotion of the common good.
Though it also involves considerable role-playing, the business school
case thus lacks the one role to which the case method as it is practiced in law
schools gives the greatest emphasis, the role of the judge, and hence it cannot
be said to teach, as directly or insistently, the attitude that distinguishes
this role form others. The dominant
perspective in business school cases is that of a manager, not of a judge, and
while a manager may more than others be concerned with the overall well-being of
his firm, because the firm is situated in a competitive environment populated by
other firms, managers must also be partisans in a way that judges are not. The managerial perspective mixes communitarian and
self-interested attitudes, and to that extent encourages less forcefully than
the judicial point of view the spirit of civic-mindedness that the latter
exemplifies in an unmixed form.
[i] *From The Lost Lawyer,
Harvard University Press, 1993, 109-121.