B. Combining Individual and Collaborative Work in the Classroom
We worked with the materials before winter break and devised a multipart assignment that would unfold over the course of the quarter. In the first stage of the project, we gave students excerpts from the appellate record, specifically the inmates’ account statements showing the deductions, their “kites” complaining about the deductions, the prison officials’ responses, the formal complaints to the DOC, the DOC’s responses, and the trial court’s judgment. We first asked the students to figure out the chronology of the story and to conduct preliminary research, which mainly involved pulling the statutes governing deductions from inmate accounts and looking up any relevant case law. We also asked students to identify the main legal issue and think about how they might try to solve it.
Students were ready to shift to the role of the judicial law clerk — the next phase of our project — once they had mastered the facts and roughly outlined the legal arguments that would be made. We gave the students the briefing submitted to the Washington Supreme Court, which consisted of the inmates’ pro se opening brief,33 the DOC’s response,34 the inmates’ reply brief,35 and the student-written supplemental brief.36 In class, we discussed the role of law clerks at appellate courts, and asked each student to draft a bench memorandum summarizing the parties’ arguments and his or her recommendation for how the court should resolve the issue. We allowed students to discuss their analyses with their classmates and to work in groups during class, which simulated the collaborative nature of judicial law clerks’ working relationships with one another.
One of the fascinating parts of the drafting process was that it enabled students to draw on the theoretical work they had been doing with statutory interpretation and required them to frame the case in a way that was consistent with their methodological preferences.37 We encouraged students to try to find cases in the jurisdiction that supported their preferred approach to statutory interpretation, and to assist them we handed out a 100-page Washington statutory interpretation manual that students in one of our advanced classes had created. At the end of this process, students committed themselves to a methodological approach that they could support with relevant authority and to an interpretation of the statute based on that approach.
The class divided in the ways one might expect: some students were more strongly committed to a textualist approach to discerning statutory meaning, and this generally led them to side with the inmates, who arguably had the more straightforward reading of the text; other students weighed legislative history and purpose more heavily, which, in most cases, led them to support the DOC’s reading. The interpretive question in this case was particularly interesting because it placed students in a sort of political pickle: the method generally favored by conservative judges tended to lead to a win for the inmates, an approach that required a form of leniency for those who had been convicted of the state’s most heinous crimes; on the other hand, the more purposive or policy-oriented approach generally favored by liberal judges tended to favor the DOC’s more law-and-order-oriented position.
This tension between method and outcome was highly valuable from a pedagogical standpoint. It gave students a way to gauge the extent to which their decisions were results oriented or the extent to which they could base their decision making on arguably more neutral methodological commitments. The key to this part of the project, though, was for students, much like judges in a similar position, to commit themselves strongly to a particular reading of the statutes and to be able to defend that reading by referring to an interpretive method that was supported by Washington Supreme Court precedent.38 Forcing students to commit early to an interpretation primed them for vigorous debate in the next stage of our project, which involved having students draft a collaborative judicial opinion or opinion set.
Once students were committed to a particular approach and reading, they were in roughly the same position as a judge whose law clerk had reviewed the case and provided a bench memo. They had read the arguments and supporting materials and reached a preferred outcome that they believed was correct or best based on the law and how they thought the law should work. We next placed students in the position of the judge at the oral argument conference: that is, in the position of a professional who is confronted by others who have different preferred outcomes to which they also are strongly committed based on both the law and their views about the proper role of courts when engaging in statutory construction. The students would have to do just what appellate judges have to do in a real case: reach some kind of consensus (or at least partial consensus) about the result and reasoning, or decide that consensus cannot be reached and write separately. Throughout this process, we encouraged students to think about the role of their decision and the extent to which they felt it would be appropriate to compromise on a legal or methodological point in order to achieve majority status for their preferred outcome or to achieve unanimity.
For practical reasons, students worked in three- or four-judge panels instead of the nine-judge panel on the Washington Supreme Court. These smaller panels ensured that students would not drift into the background of the conversation and would have to participate actively in drafting the final opinion or opinion set. During class discussions, we explained what a typical oral argument conference might look like and drew on our own clerkship experiences to help students understand the ways in which a panel of judges might tackle the collaborative drafting and revision process. We asked students to devise their own drafting and revision process.
In an in-class workshop, our “judicial panels” held formal argument conferences in which they explained to their colleagues how they thought the case should be resolved, and discussed any misgivings or differences among their approaches. By the end of the class, each group of students needed to decide whether they were writing a unanimous opinion, a majority and a concurrence, a majority and a dissent, or a plurality opinion. We also asked the student panels to take a straw vote about their preferred result. It was fascinating to see how many combinations came out of this process. As predicted, students were strongly committed to the result and reasoning they had previously advocated in their individually written bench memos. This meant that most panels were divided and that the student judges would have to engage each other and try to persuade each other to commit to a different analysis.
Because our case involved larger theoretical and methodological issues (and associated case law), these panel discussions quickly became quite sophisticated and treaded into debates about the extent to which the Washington Supreme Court had committed itself to a particular statutory interpretation scheme. Even the panels whose members agreed on the result often had very different ideas about how to reach that result. In those groups, the conversation centered on the extent to which an individual judge, in good conscience, could sign onto an opinion containing reasoning with which the judge disagreed — again, a highorder question about legal process.
Students then went about the drafting process, which required them to draw upon, and in some cases, rethink, the analyses in their bench memos — just as a judge would have to do. After several revisions and peer reviews — again, much as would take place at a court — the students on each panel filed their set of opinions.
C. Students’ Deepening Understanding of Legal Process
Students raised interesting questions about various theories of the case, assessing the relevance of statutory context, legislative history, and subsequently enacted legislation. Throughout this process, the students displayed ingenuity and energy. One student decided to travel sixty miles to the state capitol in Olympia to listen to tapes of the floor debate that occurred when this statute was passed, and returned with creative theories for why such and such legislator’s oblique statement about such and such meant that the legislature intended to give the DOC authority to deduct these monies. Another student researched subsequent legislative history — and found a bill pending at the legislature that would clarify that the DOC definitely had authority to deduct these fees from the inmates’ trust accounts.
That latter discovery, which the student shared with the class, prompted a heated debate about the relevance of subsequent legislative history when discerning legislative intent. Some students decided it would be reasonable to treat the Washington Attorney General’s request for a change in the statute as an admission that the previous version of the statute — namely, the one that applied to this case — did not mean what the State argued it meant in its briefing! Others decided that events that took place many years after the legislature passed the original statute could not reasonably bear on the legislature’s past intent. Still other students decided that the case law in Washington was unclear and that the court’s current plain meaning approach did not focus on what the legislature intended — but rather what it actually said. This last approach ruled out both regular and subsequent legislative history and created yet another defensible approach to the problem.
Throughout this collaborative project, students absorbed strategies of statutory interpretation that could not be taught as effectively without a hands-on approach that pitted their individual analyses (to which they were strongly committed) against other persuasive accounts of statutory meaning. Students also learned some important big-picture lessons about judicial decision making and the legal process more generally. For example, they were beginning to understand the contours of the legal audience, what counts as a strong legal argument among members of that audience, and how members of that audience can reasonably disagree. They were also learning how a court’s supposedly objective analysis draws heavily on the rhetorical conventions of persuasion: the need to persuade other judges, to persuade the parties to accept the result, and to persuade future courts and attorneys to adhere faithfully to the intended holding and rationale. In other words, they were learning about the convergence of advocacy and analysis. Other big-picture lessons that students absorbed during the course of this project related to the intertwined and recursive relationship between courts and legislatures — a concept that became very clear after students realized that the state’s Attorney General approached the legislature to amend the statute after the inmates’ lawsuit had been filed.39 Students also had the opportunity to consider the concept of mootness and the intricacies of the petition review process, as they grappled with the potential ramifications for the inmates’ appeal if the pending legislative amendment were to be enacted. Would the Washington Supreme Court simply dismiss the inmates’ appeal as having been “improvidently granted”? Or would it proceed to issue a decision narrowly focused on the events occurring before the legislative amendment passed, perhaps ordering that the funds withdrawn from the inmates’ accounts before the amendment became effective should be returned?
One somewhat anachronistic highlight in the late stages of the project was the day we showed our students the videotape of the oral arguments, in which the two third-year students argued on behalf of the inmates before the state supreme court.40 We showed this video after the oral argument conferences rather than before because we believed that the students would be in a better position to understand and decode the judges’ questions after they had had the chance to formulate their own questions about the case. The presentation was particularly engaging because we were able to persuade one of the third-year students to take a break from bar study to talk about what it was like to brief the case, prepare for oral argument, and finally argue this case in front of nine inquisitive justices. This student’s candid discussion of the process showed students what a large measure of collaboration had been required. His comments were thought-provoking and riveting, as the first-year students in the audience asked him question after question about the experience: why he thought the judges were focused on different aspects of the case, whether he was nervous during the argument, and what he would do differently if he could argue the case again.
This learning experience was all the more engaging because during it, the Washington Supreme Court had the inmates’ case under advisement. The simultaneity of the students’ and the court’s analyses dramatized the judicial decision-making process. Students knew that within a few months, they would see how the court resolved the legal question and how well the court justified its result.41
By the time students had drafted their opinions, they were so solidly entrenched in their own compromises and their own reasoning, which in many instances went well beyond the parties’ briefing, that we think they might have mustered the hubris to think that the Washington Supreme Court — though Supreme — would not necessarily do any better than they could with the case. This palpable sense of confidence and empowerment may have been fueled by seeing law students with just two years of additional experience under their belts hold their own so well in front of the justices.
The Washington Supreme Court’s decision came down during spring break, just after exams were finished. A purposive interpretation of the statute prevailed. A bare majority of the court held that despite the apparently plain meaning of the text of the statute in question, the legislature had not intended to exempt inmates incarcerated for life from the account deductions at issue in the case.42 Four justices dissented, arguing that the legislature had not given the DOC authority to make these deductions.43
When we read the court’s opinion — and quickly sent it out to our classes — we knew that students would be delighted and reassured by the nearly even split on the court. The court’s division confirmed that the students’ debates were real. We also knew that the learning experience would continue for several more days as students digested and debated the majority’s result and justification, and the dissent’s critique. Though we were in the midst of spring break, it took just a few minutes for our inboxes to begin filling up with students’ sophisticated comments and questions about the decision. The students’ curiosity, confidence, energy, and spirit of critique were truly exhilarating. Equally exhilarating to us was this confirmation that our attempt to infuse our first-year legal research and writing class with real collaborative context had been a success.
IV. Conclusion: Broader Lessons About Legal Collaborative Processes In and Outside of the Classroom
Our project has both pedagogical and practical lessons. One lesson is that professors who want to integrate collaboration into their classes can avoid some of the contrived feelings associated with group work by injecting in-class collaboration with “real collaborative context.” These projects are demanding, engaging, and help students gain a sophisticated understanding of the dynamics of legal processes.44 A second lesson is that in addition to teaching law students about law and legal processes, experimenting with collaboration in legal education can provide a mechanism to reflect on and enhance the role of collaboration in legal decision making. Below, we offer some tentative thoughts about additional ways in which projects with real collaborative context can enhance both law students’ understanding of legal processes and the legal profession’s use of collaboration.
Contextually rich approaches to collaboration are not limited to appellate opinion drafting projects like the one described here. Appellate opinion drafting is an excellent teaching vehicle in legal writing classes because working on judicial opinions in groups helps students — especially first-year students — understand core judicial processes. But many other legal processes also involve group decision making and lend themselves to this approach. For example, law professors might also base such projects on decisions that groups of lawyers must make together. Lawyers routinely meet to discuss litigation strategy in groups, especially in offices — such as an Attorney General’s office — that need to coordinate litigation strategy (or legal positions) among many lawyers. Law teachers might set up a collaborative project in which students have to read and analyze a series of briefs in different cases employing diverse legal strategies and then decide, as a group, which strategy the office as a whole should take given the nature of its caseload.
Courses also might explore the possibilities of large-group collaboration, both as a tool to increase productivity and as a way to reach better-reasoned results. One legal context in which large-group collaboration seems particularly relevant is public interest law. Because of scarce resources, the need to work together takes on special importance in public interest advocacy. Public interest advocates organize into task forces, and pool knowledge and experience, to develop litigation strategy and policy solutions. Policy problems, in particular, lend themselves to collaborative projects and enable students to sense first-hand how collaboration can lead to a more complete understanding of complex problems and, eventually, to greater social progress.
At the University of Washington, we have experimented with several projects involving this sort of collaboration. In one class, approximately thirty students worked together to address a thorny law and policy problem in the housing law context: lawyers at a local legal aid office had experienced difficulty with eviction cases involving tenants who compulsively hoard possessions, filling up their homes with worthless items and violating lease provisions and safety standards. In consultation with a lawyer in this office, students in the class researched social science relating to compulsive hoarding and relevant disability defenses to eviction, and developed training and educational materials, legislative suggestions, and community advocacy strategies. Students learned not only about disability law but also about how advocates can use technology to work together in a large group to tackle a seemingly insurmountable problem.45 Building on this approach, other classes at our law school are using similar techniques to collaboratively draft a judicial training manual addressing legal issues faced by homeless lesbian, gay, bi-sexual, and transgendered youth.46 Yet another class (taught by one of the authors) is working together to compile a set of model briefs for various categories of asylum law claims for use in an ABA–Microsoftsponsored pro bono asylum law project.47
Factual problem-solving is an area that most law schools do not emphasize but which offers tremendous possibilities for context-rich collaboration and for helping students understand important aspects of the legal system. For example, an evidence or factual investigation course could ask students to play the role of jurors and to analyze and evaluate complex chains of inference that flow from a body of evidence.48 Students could then play the role of jurors to get a better understanding of how groups of laypersons work together to make sense of a set of facts with multiple possible inferences. Students could also experiment with innovative collaborative problem solving techniques — for example using charts or other visualizations to facilitate collaborative thinking about complex evidence networks — that might have applications in real court rooms.49 Factual problemsolving can also take place from an investigator’s standpoint, and students can work together to plan an investigation that will uncover the facts necessary to prove a particular legal standard. At a recent conference about the visualization of evidence in legal settings attended by one of the authors,50 a current U.S. Attorney expressed his wish that law schools would help develop techniques to facilitate collaborative collection and analysis of evidence in complex criminal cases.
Finally, courses might develop a project in which students play the roles of law partners in a private firm and have to review cases and debate whether to accept or pursue them. A project like this would require students to make an independent assessment of the legal strength of a case and then to negotiate a cluster of issues related to the case’s value, each lawyer’s level of comfort with risk, and the relative importance of justice-related factors — all tasks that would teach students about important aspects of legal practice not often taught in law schools.
Although projects involving real collaborative context serve important pedagogical goals (both to teach collaboration as a skill and to teach about legal processes that involve collaboration), such projects (as some of our comments above suggest) also have applications outside the classroom. One concrete effect is that they improve students’ awareness of the collaborative nature of legal processes and hone their collaboration skills. The law school experience can tend to make students think of law as a highly adversarial and competitive process. But students who experience law as a collaborative enterprise while in law school are likely, when they begin practicing law, to have a heightened awareness of the benefits of collaboration.51 Because of this perspective, they may do a better job of collaborating than their colleagues. Or they may simply be better prepared to improve those processes. Appellate opinion writing provides a good example. Students who understand in a tangible way how judges read and use briefs, debate amongst themselves, and make compromises about how an opinion is drafted may be able to read opinions in a more sophisticated way and write more effective appellate briefs than peers who have not experienced the collaborative aspects of opinion writing.
A more remote — though possibly more important — effect is that students’ self-reflective efforts to collaborate in particular legal processes, and law teachers’ efforts to incubate such collaboration among students, can ultimately serve to teach legal professionals something about how best to work together. Perhaps the most exciting aspect of contextually rich collaboration is that it offers not merely the opportunity for law students and teachers to understand how legal institutions function, but also the opportunity for both students and faculty to help those institutions function more effectively.
Even our limited and experimental approach to collaboration had some lessons for decision makers who are called upon to collaborate in similar circumstances. Students in our classes found that collaborative decision making worked best when the judges involved had a clear sense of their values going into the case and had articulated to themselves and each other the relative importance of those values. Indeed, the groups that seemed to be most effective had strong positions going into their opinion conferences. For example, students found that collaboration was most efficient and least likely to lead to a result they would later regret if they openly defined and discussed their commitment to a methodological approach or to unanimity. In addition, students found that their decision making benefited from candor about all of the considerations — including normative ones — that were part of the decision. Disclosing these commitments enabled compromise to move forward in a principled way and revealed areas, at a fairly early stage, where no compromise was possible. In some cases, unexpected and creative solutions emerged from this initial self-awareness and candor.
Similarly, our students quickly learned that the collision between competing points of view during a collaborative project forces individual attorneys and judges to critically examine, and then attempt to bolster, the weaknesses in their respective positions. Writing after considering and weighing all possible counterarguments tends to make the final written product (a memorandum, brief, or judicial opinion) more persuasive and stronger than it would have been if all participants had shared a uniform perspective. Collaboration should not be primarily about negotiation or reaching compromise. Sometimes the combination of multiple strong points of view ferrets out arguments that otherwise might have remained dormant. Likewise, sometimes the passion of an initial commitment reflects a participant’s strong sense of responsibility for the decision — and so ought to be encouraged, not tamped down.
Another lesson is that collaborative drafting seems to benefit from early conversations about what to concentrate on during different stages of the collaborative or editing process. In our view, groups did best when they “bracketed” sentence level writing issues and matters of legal “voice” until late in the process. Suspending these editing issues seemed to allow the students to focus on substance. Once the substance was in place, student-judges were able to move through the editing process more efficiently and mechanically without spending much time on details that were of little importance. Interestingly, this is one area in which courts, in our experience, could improve. We have both seen instances where sentence-level editing was mixed with more substantive edits, resulting in excessive nit-picking too early in the drafting process, creating unneeded distraction and tension.
Other lessons that emerged from a contextually rich collaborative project in a different class involved the innovative use of technology. Researchers in a number of different fields have emphasized how collaboration can reinforce problem-solving, improving its quality. For example, scholars of artificial intelligence have suggested the possibility that charting and visualization — techniques that facilitate a group’s ability to perceive and discuss complex relationships among arguments — may enable groups to make more reasonable decisions.52 In our class, we encouraged students, some of whom were more technically savvy than we were, to develop innovative collaborative strategies to tackle legal problems. For example, some students used collaborative drafting software such as Google Docs or other shared workspaces to facilitate working together. Still other students maximized the value of their group’s work by sharing information on a “wiki,” a type of software that facilitates mass collaboration.53 Legal professionals who do not know about the new array of software that aids collaborative work would do well to learn about it. As our students discovered, these can be powerful tools to open up new ways for legal professionals to work together (and with other advocates in the community). Students who have experimented with this software in law school will be poised to integrate it into their legal practices or to draw on collaborative techniques to improve legal institutions.54
If our experience with collaborative decision making offers any lessons for legal professionals, these lessons are, at most, only tentative at this point. Law professors need to work more with these teaching techniques before making grandiose claims about what our limited experience in the classroom can teach legal professionals who struggle regularly with these difficult processes — and presumably learn from that struggle. Nonetheless, it is clear that widespread experimentation with collaboration in specific legal contexts can lead to greater understanding of the dynamics at work in those processes and can lead to the development of new techniques to facilitate collaboration. The classroom is the perfect place to explore these dynamics and techniques. In other words, the classroom can and should be a laboratory — or “collaboratory” — for the legal profession. The ultimate promise of collaborative work in and out of the classroom is to improve the legal process and lead to better reasoned and more just results.
33 Appellants’ Opening Br., 2005 WL 4656039 (Dec. 15, 2005).
34 Answering Br. of Respt., 2006 WL 2303743 (Jan. 19, 2006).
35 Appellants’ Reply Br., 2006 WL 3327893 (Feb. 13, 2006).
36 Appellants’ Supp. Br., 2006 WL 3910772 (Oct. 26, 2006).
37 Previously, we had done several short assignments that required students to assess the weight they would give to the text, context, legislative history, and general purpose of a statute when confronted with a thorny problem of statutory meaning. For these assignments, we rely heavily on two theoretically rich texts: Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616 (1949); and William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321 (1990).
38 We collected these bench memos and graded them, but did not return them right away.
39 The Washington State Legislature ultimately enacted the proposed legislation, clarifying that inmates with sentences of life in prison or death could indeed have their legal financial obligation deductions taken from the funds sent to them by friends and family. Wash. Rev. Code § 72.09.480 (2007). Washington Governor Christine Gregoire signed the bill about a month after the Washington Supreme Court issued its opinion and after our class had concluded.
40 Wash. St. Pub. Affairs TV Network, Washington State Supreme Court Oral Arguments, Anderson v. State (Nov. 28, 2006), http://www.tvw.org/media/mediaplayer.cfm?evid=2006110041C&TYPE =V&bhcp=1 (last accessed June 8, 2008).
41 For us, the fact that a decision might come out any day was dramatic in a slightly less positive way. We felt as if we were, in some sense, playing chicken with the court. We were concerned that students might see the court’s actual opinion before they turned in their own opinions, and that we might be stuck spending our spring breaks reading monolithic sets of opinions that mimicked the court’s analysis instead of the wonderful array of defensible analyses we hoped for. We took some precaution by declaring the real opinion officially off limits if it was published at an inopportune time. But the truth is that we don’t believe it would have mattered if the decision had come out before students finished their drafts because they were already strongly committed to their individual and creative analyses.
42 Anderson, 154 P.3d at 223-28 (Bridge, Owens, Madsen, Fairhurst, J. Johnson, J.J.).
43 Id. at 228-30 (Alexander, C.J., Chambers, Sanders, C. Johnson, J.J., dissenting).
44 In this sense, our approach is consistent with some of the suggestions in the recent Carnegie Report, supra n. 3.
45 One of the authors has discussed this project in more detail in a recent article. See Tom Cobb, Public Interest Research, Collaboration, and the Promise of Wikis, 16 Persps. 1 (2007) [hereinafter Cobb, Public Interest Research]. This legal writing class also published some of its research. See Tom Cobb et al., Advocacy Strategies to Fight Eviction in Cases of Compulsive Hoarding and Cluttering, 41 Clearinghouse Rev. 427 (2007).
46 Our colleague, Prof. Theodore Myhre, developed this innovative legal research and writing course in concert with our child advocacy clinic and several non-profit organizations.
47 For a remarkable set of community-based research projects along similar lines, see James H. Backman, Law Schools, Law Students, Civil Engagement, and Community-Based Research as Resources for Improving Access to Justice in Utah, 2006 Utah L. Rev. 953.
48 For fascinating projects along these lines, see Terence Anderson, David Schum & William Twining, Analysis of Evidence 46-77 (Cambridge U. Press 2005).
49 See Peter Tillers & David Schuman, A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931 (1991).
50 See Peter Tillers, Introduction: Visualizing Evidence and Inference in Legal Settings, 6 Law, Probability & Risk 1 (2007) (introducing special issue of journal publishing conference proceedings addressing this topic).
51 But see Catherine Gage O’Grady, Preparing Students for the Profession, Clinical Education, Collaborative Pedagogy, and the Realities of Practice for the New Lawyer, 4 Clin. L. Rev. 485 (1998) (questioning whether collaborative pedagogy really does prepare students for the competitive environment and hierarchies typically present in legal practice).
52 See Simon Buckingham Shum, The Roots of Computer Supported Argument Visualization in Visualizing Argumentation: Software Tools for Collaborative and Educational Sense-Making 3 (Paul A. Kirschner, Simon J. Buckingham Shum & Chad S. Carr eds., Springer 2003).
53 For a detailed description of a project involving the use of wiki technology in a legal writing classroom, see Cobb, Public Interest Research, supra n. 45.
54 Koo, supra n. 5.