Before discussing the teaching techniques and tools I advocate, I would like to explain the basis for my belief that objective analysis and writing are inherently persuasive activities. First, I reject formalism. [FN20] In terms of analysis, this means that I believe the goal is not to find the single correct answer or some sort of objective truth because there is no single correct answer to a given legal problem. [FN21] Instead, my goal is to empower students to look at things in different ways, to see there are different possible answers to legal issues. [FN22] If they are aware of the different possibilities, they will be able to carefully and persuasively construct the answer they choose.

In terms of writing then, the goal is not to teach that language merely conveys meaning, but rather that language creates meaning. [FN23] Language is law and law is language. [FN24] At the same time, however, there are potential answers to legal questions which are "better" than others (more likely to be accepted by a particular court or courts within a jurisdiction and more likely to be accepted by particular teachers). [FN25]
I also believe that writing and thinking are not separable tasks; that is, reading legal texts and creating them involve a common analytical enterprise: the analytical enterprise involved is the construction of meaning. [FN26] "In reading, we produce text within text; in interpreting, we produce text upon text; in criticizing, we produce text against text." [FN27] In creating, we produce text out of or from text. If students are taught that every time they analyze a legal problem, read legal authority, and predict an outcome, they are constructing meaning, they will have a strong incentive to hone their close or critical reading skills.

The law also imposes certain conventions for different writing projects, e.g, inter-office memoranda versus memoranda in support of motions for summary judgment. Thus, a defined product which answers a legal question or effectively argues in support of a legal position is a very real part of legal writing. [FN28] Introducing students to these products is one important goal in teaching first-year students. Emphasis on product and certainty or definite answers in resolving legal issues without discussion of the manipulation of language in the construction of these documents and the values underlying the body of law from which an answer is derived, however, is misleading and disempowering for the student. [FN29]

Finally, critical analysis or interpretation is a skill which is not unique to legal writing or so-called "skills" courses, but rather crosses over from so-called traditional doctrinal or substantive courses to writing, research, and other skills courses, including trial advocacy courses, negotiation courses, judicial extern programs, and clinical programs. [FN30] Thus, teaching students about the purpose and use of the Socratic method and its parallel to the organizational paradigm taught in the legal writing classroom is particularly useful. To fully empower students, however, it is also important to teach students to employ the tool of critical reading across the law school curriculum into all aspects of their legal education.

Professor Langdell's reason for adopting this approach to the study of law is crucial to and at odds with my underlying assumptions to teaching objective analysis: He believed that all law could be reduced to a set of scientific principles. [FN35] In other words, he was a formalist. [FN36] Over time, the Socratic method began to be utilized "less as doctrine and more as process; the goal became the development of a particular mental process rather *174 than of a doctrinal view of law." [FN37] The purpose then of the Socratic approach to teaching law is for the student to acquire the method by which the student has been educated: "[W]hen a student can 'split a hair' or 'distinguish a distinction,' he not only reflects the instructional method ..., he also shows that he has made this method his own." [FN38]

Thus, at its best, through this version of the Socratic method,

[t]he teacher leads the students to generalizations and inferences regarding the subject matter under study, and prompts the student. In effect, the teacher says to the student, "If you wish to know, you must exert your own intellectual effort. You must work with the data from experience yourself. Through your own inquiry will come knowledge. [FN39]

Instead of reflecting a belief in formalism, the Socratic method as currently employed should explore the different kinds of answers available to questions and should reveal that some answers are better than others, depending upon underlying value judgments and assumptions. [FN40] The Socratic method ultimately can demonstrate that there is no single answer to most legal questions, but rather "a spectrum of viewpoints." [FN41] Its use in first-year courses is thus consistent with the theoretical assumptions*175 underlying my approach to teaching objective analysis. [FN42]

The problem with the Socratic method as practiced in today's classroom lies not in this purpose, but in the teacher's complete failure to explain the purpose to first-semester students combined with its formalistic roots. [FN43] Given this combination of factors, it is no wonder that the first- semester student, as novice legal thinker, is often seduced into a search for the right answer. [FN44] First-semester teachers also rarely take the time to summarize and evaluate classroom discussion. [FN45] This omission compounds the potential for reinforcing poor reasoning and logical errors. In order to learn to "think like a lawyer," students need to be told "when an argument is circular" and when they have made "factual misstatements" or when they have "mistaken cause-and-effect relationships." [FN46] Without this kind of feedback, they will not understand the purpose of the Socratic method, and they will not be empowered to make and anticipate sound legal arguments.

The first-semester legal writing teacher who anticipates law students' problems with the Socratic method is in a wonderful position to demonstrate the Socratic method as a flexible, persuasive tool while simultaneously demonstrating the same flexibility and persuasion inherent in another tool unique to the legal writing classroom: the particular organizational paradigm used in teaching the interoffice objective memorandum -- IRAC, CRAC, or some variation. [FN47] The student can be shown that this *176 paradigm provides direct empowerment because the student is in charge of its manipulation. In contrast, in the doctrinal classroom, the teacher is directly empowered to ask the questions, and the student gains power only indirectly by understanding and possibly anticipating the teacher's use of the questions. [FN48] In this way, students can vividly learn about their power of persuasion in a first-semester legal writing course by direct comparison to their relatively disempowered existence in the doctrinal classroom. [FN49]

The first semester provides numerous opportunities for unearthing persuasion within so-called objective documents. The very process of organizing this type of analysis requires a student to first predict the outcome, given the facts and the available case law, and then to work backward from that outcome in constructing the analysis. [FN50] The students are deciding or predicting the result and then constructing the memorandum to support that result. If students work with a closed universe of cases, the organization of those cases becomes a key component in persuading the reader. [FN51] If students are performing their own research, the choice of cases may provide an avenue for persuasion. [FN52] The point is simply that students need to be reminded throughout the semester of all of the persuasive decisions they make every time they conduct research for and compose an interoffice memorandum, particularly the more subtle persuasive decisions just mentioned.

In contrast to the other aspects of the objective memorandum, counter-arguments, particularly case-based arguments, provide direct opportunities for constant reminder and reinforcement that all objective analysis is a form of persuasion. [FN53] Judicial opinions, particularly concurring and dissenting opinions, provide the basis for many counter-arguments. [FN54] They thus provide vivid illustrations of judicial persuasion. Judicial opinions are also the documents which most closely resemble an objective memorandum, and students usually do not discover this comparison on their own. [FN55] Students need reminding that the very documents they rely upon to predict outcomes are persuasive and are models for the very documents students are creating in their first-semester legal writing class.

I find this fact most difficult to convey to first-semester students who uniformly resist seeing the persuasion inherent in a majority opinion: The same students who can see persuasion in their own and their classmates' written memoranda and in dissenting and concurring judicial opinions fail to see the persuasion imbedded in a majority opinion. In other words, "they fail to see how" the court "'worked' the text on them." [FN56]

I use the following in-class exercise to illustrate judicial persuasion in a majority opinion. I begin by setting out the facts from two cases: Walker v. City of Birmingham, [FN57] and Shuttlesworth v. City of Birmingham. [FN58] Both opinions arise from the same set of operative facts -- Dr. Martin Luther King's 1963 protest against segregation in Birmingham, Alabama. [FN59] What is most important for purposes of illustrating my point to students is that both majority opinions were written by Justice Stewart. [FN60] I require the students to read the facts from each opinion outside of class. [FN61] I then conduct an in-class exercise designed both to elicit the different persuasive technique utilized by Justice Stewart in each opinion and to highlight the importance of the fact section to the objective memorandum. [FN62] Next, I assign carefully edited portions of the legal analysis from each case. [FN63] We then discuss how Justice Stewart read and interpreted the law differently in each case. [FN64]

Before providing the text of Justice Stewart's opinions, I would like to provide some background information to contextualize the issues. [FN65] The events leading up to Reverend King's Good Friday march in 1963 were dramatic. [FN66] Two other civil rights leaders (and the named defendants in the opinions) were involved with Reverend King in the organization of the civil disobedience and non-violent protests in Birmingham: Reverend Frederick Lee Shuttlesworth, a prominent civil rights activist in Birmingham, and Dr. Wyatt Tee Walker, Executive Director of the Southern Christian Leadership Conference. [FN67]

In 1963, Birmingham was described as "'the most segregated city in America."' [FN68] In his inaugural address delivered just two months prior to Dr. King's protest, Governor George Wallace vowed to retain "segregation now, segregation tomorrow, segregation forever." [FN69] Birmingham ordinances prohibited restaurants from serving both blacks and whites. [FN70] Buses, taxi cabs, restrooms, theaters, hospitals, "ambulances, police paddy wagons and elevators were segregated." [FN71]

The day before the marches leading up to the Good Friday march were scheduled to begin, the protesters requested the necessary parade permit. [FN72] The permit was denied, and the marchers went ahead with their protests. [FN73] The Alabama legislature responded by statutorily raising bail "for misdemeanor arrests in Birmingham, from $300 to $2,500." [FN74] On Wednesday, April 10, 1963, two days before the scheduled Good Friday march, City attorneys also petitioned the state court for and received *180 an injunction against further demonstrations. [FN75] King, Walker, and Shuttlesworth decided to march, knowing they would be arrested and also knowing that they could not afford to pay the bail. [FN76] Dr. King wrote Letter from Birmingham Jail, his "greatest written work," on "the edges of newspaper" while being held in solitary confinement for his arrest in Walker. [FN77]

In Walker, a majority of the United States Supreme Court upheld the injunction issued by the state court prohibiting the protesters from marching. [FN78] Justice Stewart described the facts as follows:

Five of the eight petitioners were served with copies of the writ early the next morning. Several hours later four of them held a press conference. There a statement was distributed, declaring their intention to disobey the injunction because it was "raw tyranny under the guise of maintaining law and order." At this press conference one of the petitioners stated: "That they had respect for the Federal Courts, or Federal Injunctions, but in the past the State Courts had favored local law enforcement, and if the police couldn't handle it, the mob would."
That night a meeting took place at which one of the petitioners announced that "[i]njunction or no injunction we are going to march tomorrow." The next afternoon, Good Friday, a large crowd gathered in the vicinity of Sixteenth Street and Sixth Avenue North in Birmingham. A group of about 50 or 60 proceeded to parade along the sidewalk while a crowd of 1,000 to 1,500 onlookers stood by, "clapping, and hollering, and [w]hooping." Some of the crowd followed the marchers and spilled out into the street. At least three of the petitioners participated in this march.

Meetings sponsored by some of the petitioners were held that night and the following night, where calls for volunteers to "walk" and go to jail were made. On Easter Sunday, April 14, a crowd of between 1,500 and 2,000 people congregated in the midafternoon in the vicinity of Seventh Avenue and Eleventh Street North in Birmingham. One of *181 the petitioners was seen organizing members of the crowd in formation. A group of about 50, headed by three other petitioners, started down the sidewalk two abreast. At least one other petitioner was among the marchers. Some 300 or 400 people from among the onlookers followed in a crowd that occupied the entire width of the street and overflowed onto the sidewalks. Violence occurred. Members of the crowd threw rocks that injured a newspaperman and damaged a police motorcycle. [FN79]

In Shuttlesworth, Justice Stewart, who now ruled that the parade ordinance was unconstitutional, described the same facts much differently:

On the afternoon of April 12, Good Friday, 1963, 52 people, all Negroes, were led out of a Birmingham church by three Negro ministers, one of whom was the petitioner, Fred L. Shuttlesworth. They walked in orderly fashion, two abreast for the most part, for four blocks. The purpose of their march was to protest the alleged denial of civil rights to Negroes in the city of Birmingham. The marchers stayed on the sidewalks except at street intersections, and they did not interfere with other pedestrians. No automobiles were obstructed, nor were traffic signals disobeyed. The petitioner was with the group for at least part of this time, walking alongside the others, and once moving from the front to the rear. As the marchers moved along, a crowd of spectators fell in behind them at a distance. The spectators at some points spilled out into the street, but the street was not blocked and vehicles were not obstructed.

Uncontradicted testimony was offered in Walker to show that over a week before the Good Friday march petitioner Shuttlesworth sent a representative to apply for a parade permit. She went to the City Hall and asked "to see the person or persons in charge to issue permits, permits for parading, picketing, and demonstrating." She was directed to Commissioner Connor, who denied her request in no uncertain terms. "He said, 'No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail,' and he repeated that twice."

Two days later petitioner Shuttlesworth himself sent a telegram to Commissioner Connor requesting, on behalf of his organization, a permit to picket "against the injustices of segregation and discrimination." His request specified the sidewalks where the picketing would take place, and stated that "the normal rules of picketing" would be obeyed. In reply, the Commissioner sent a wire stating that permits were the responsibility of the entire Commission rather than of a single Commissioner, and closing with the blunt admonition: "I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama." [FN80]

After the students have read both sets of facts outside of class, we work through the following questions in sequence for this in-class exercise. [FN81] (1) Do any facts appear to be omitted from one opinion? (I am asking about court silences and getting students to consider the persuasive power of silence.) (2) Are the same facts characterized differently in one opinion, and if so, how are they characterized differently? (I am asking students to read for rhetoric, style, and narrative.) (3) What type of reaction do the different characterizations evoke in you? (I am asking students to consider the effect of tone or mood.) This example helps students to see the power of language, particularly in terms of the same writer's different characterizations and omissions of facts. They are also able to see how the marchers appear in the Walker account as aggressive, disorderly, and dangerous and how in the Shuttlesworth version they appear to be an organized group with defined leadership. They have, in just two years, [FN82] become orderly, reasonable people, protesting violations of their civil rights.

For example, many facts which cast the marchers in a sympathetic light were omitted from the Walker opinion. First, before the march, Reverend Shuttlesworth sent a telegram to the Commissioner of Public Safety requesting (for the second time) a permit to march. [FN83] Also noticeably absent were the facts that the marchers were led by three ministers and the purpose *183 of their march was to protest segregation. [FN84] The Walker Court further failed to note that the marchers stayed primarily on the sidewalks, they obeyed traffic signals, and they did not interfere with either pedestrians or automobiles when it described these protesters as a "group," or "parade." [FN85]

In stark contrast, in Shuttlesworth, information which was unfavorable to the marchers because it cast them as defiant law breakers was omitted: They were served with a copy of the injunction the day before their scheduled march; after they received a copy of the injunction, they held a press conference at which they proclaimed their distrust of the state court system; and that same evening, they publicly announced their intention to march. [FN86] They were described by the Shuttlesworth Court as "people" who "were led" "by three ... ministers." [FN87] The students are very surprised by the power of both the omissions and the characterizations of the marchers.

I next provide the class with a carefully edited portion of the legal analysis in each case. I provide the following excerpt from Walker:

The rule of law that Alabama followed in this case reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners' impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of the law, which alone can give abiding meaning to constitutional freedom. [FN88]

In contrast, in Shuttlesworth, Justice Stewart argues:

"It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld *184 in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. "The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands." [FN89]

I then ask the following question: How does the court itself read the law? (I am asking about judicial interpretation and the effect of social and political context upon that interpretation). [FN90] The Walker decision reflects a belief in the duty to obey law and a fear of chaos. [FN91] In Walker, Justice Stewart uses very strong language, declaring that the marchers were not "free to ignore" the injunction and "carry their battle" to the public streets. [FN92] Stewart then describes the marchers as "impatient" and chides them to show "respect for judicial process" as a "small price" in order to have "the civilizing hand of the law." [FN93] In contrast, the opinion in Shuttlesworth acknowledges a duty to disobey unjust laws, a recognition of civil disobedience, and a fear of tyranny. [FN94] Justice Stewart's language is very different as he declares that the marchers "may ignore" the ordinance "and engage with impunity in the exercise of the right of free expression." [FN95]

We discuss all of these differences and the important social and political events which occurred between the time Justice Stewart authored the two opinions. Dr. Martin Luther King, Jr., one of the defendants in Walker, was assassinated; [FN96] Senator Robert Kennedy, a prominent civil rights leader, was also assassinated; [FN97] and there were many demonstrations and violent confrontations throughout this country, particularly in the South. [FN98] The rule of law, emphasized in Walker, was breaking down. [FN99]

As a final step in the exercise, I sometimes assign portions of Martin Luther King Jr., Letter from Birmingham Jail, dated April 16, 1963, which was written after his arrest in the Walker case. [FN100] We discover that this letter is yet another version of the "truth" embodied in the Shuttlesworth decision. [FN101] It is simply another way of stating (or an alternative narrative for) [FN102] the legal analysis in Shuttlesworth. We analyze Dr. King's persuasive technique which is not in any way "disguised" as it is in judicial opinions, and we admire his eloquent, beautiful prose. During the class discussion of this letter, I point out its parallels to a closing argument. [FN103] I also point out that his use of law and philosophy to support his arguments is akin to use of precedent. [FN104] I underscore his powerful use of quotations and his ability to manipulate language to create vivid images. [FN105] Again, I make an analogy to law and the use of witness testimony in creating emotion and painting pictures. [FN106]

Footnotes

[FNa1]. Assistant Professor of Law, The John Marshall Law School. LL.M. 1992, North-western University School of Law; J.D. 1986, Valparaiso University School of Law. I would like to thank all of my colleagues at the John Marshall Law School who attended the faculty work-in-progress session at which I presented my ideas on this topic. In particular, I would like to thank Jessie Grearson, Professor of Writing, The John Marshall Law School, and Joel Cornwell, Associate Professor of Law, The John Marshall Law School, for their helpful comments. This paper was presented at the Legal Writing Institute 1998 Conference in Ann Arbor, Michigan, the University of Michigan.

[FN1]. Legal writing texts are generally organized so that the objective memorandum (also known as the inter-office or even neutral memorandum) is listed first in the table of contents. Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure Strategy, and Style xi-xii (3d ed. 1998). In fact, Professor Neumann uses as the heading for Part V, the section following objective analysis, "The Shift to Persuasion." Id. at xii. For a similar organization of just a few of the legal writing texts currently on the market, see Charles R. Calleros, Legal Method and Writing ix-xi (3d ed. 1998); Linda Holdeman Edwards, Legal Writing: Process, Analysis, and Organization vii-viii (1996); Laurel Currie Oates et al., The Legal Writing Handbook: Analysis, Research, and Writing ix (2d ed. 1998); Diana V. Pratt, Legal Writing: A Systematic Approach ix-x (2d ed. 1993); Helene S. Shapo et al., Writing and Analysis in the Law ix-xviii (3d ed. 1995).

[FN2]. I do not criticize this approach or structure to teaching analysis to first-year legal writing students. In fact, I believe there are sound reasons for this progression. See infra note 3. I simply point out that we as teachers need to be aware of how this structure can be interpreted by the novice legal thinker.

[FN3]. The traditional course sequence requires that "students learn objective or predictive writing of legal memoranda during the first semester and persuasive writing of appellate briefs during the second semester." Jo Anne Durako et al., From Product to Process: Evolution of a Legal Writing Program, 58 U. Pitt. L. Rev. 719, 726 (1997). This "sequence of topics is logical. ... because persuading a judge is in general rhetorically more complex than conveying an objective or predictive doctrinal analysis to another attorney in the office." Neal Feigenson, Legal Writing Texts Today, 41 J. Legal Educ. 503, 509 (1991) (review essay). My point is simply that students need to be told that the ability to objectively analyze is a necessary prerequisite to persuasive analysis. The student must be able to see all sides of the legal issue in order to make the best arguments on behalf of a client and to anticipate an opponent's potential arguments. First-semester students are not likely to understand this point unless they are specifically told.

[FN4]. See infra notes 31-49 and accompanying text. For a discussion of an organizational paradigm offered in one of the legal writing texts, see Neumann, supra note 1, at 89-91.

[FN5]. For a definition of close reading, see infra note 13.

[FN6]. A recent nationwide survey of law school teachers revealed that 97% (370/383) said they "used the Socratic method at least some of the time in first year classes." Steven I. Friedland, How We Teach: A Survey of Teaching Techniques in American Law Schools, 20 Seattle U.L. Rev. 1, 28 (1996). Cf. Richard K. Neumann, Jr., A Preliminary Inquiry into the Art of Critique, 40 Hastings L.J. 725, 739 (1989) (quoting T. Shaffer & R. Redmount, Lawyers, Law Students and People 168 (1977)) (asserting that the lecture method has replaced questions which are asked "only as 'a garnish to lecture' or as 'a way to make lectures more palatable."') Friedland acknowledged that "the Socratic method has many different variants and is defined in a plethora of ways," and thus what those who responded to his study meant by their statements that they utilize the Socratic method is not entirely clear. Friedland, supra note 6, at 12, 15. For a definition and clarification of the Socratic method, see infra notes 31-46 and accompanying text.

[FN7]. See Alexander J. Bolla, Jr., Reflections from the TQM Casefile in Legal Education, 43 Emory L.J. 541, 566 (1994). Steven Alan Childress, The Baby and the Bathwater: Salvaging a Positive Socratic Method, 7 Okla. City U.L. Rev. 333, 353 (1982) (urging a "self conscious" use of the Socratic method by teachers which should include open discussion of "the method's limitations").

[FN8]. See Neumann, supra note 1, at 89-90.

[FN9]. One author even described use of the Socratic method as doing "magic." Childress, supra note 7, at 351. He also cautioned that "a danger is present that the [Socratic] 'game' played well will seem real, obscuring the approach's manipulability and its vulnerability to objective reality." Id. at 339. IRAC in its most structured form, is "an oversimplified version of deductive reasoning useful in some legal writing contexts as an introduction, but not in others." Rideout and Ramsfield, infra note 23, at 75 n. 136.

[FN10]. Id. See infra notes 47-56 and accompanying text. See Parker, infra note 28, at 583 (stating that if students are provided with only one model of a legal document, they "may seek to use it as a template from which to create all documents of that type").

[FN11]. See Childress, supra note 7, at 338-39 (discussing the Socratic method).

[FN12]. For a definition of close reading, see infra note 13.

[FN13]. I do not use the term "deconstruct" in the sense of literary deconstruction which "uncovers the suppressed meanings of a text that renders the text indeterminate." Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 Wm. & Mary L. Rev. 5, 14 n. 42 (1996). Stated another way: "Law is fiction turning inward to contradict its thematic elements and then to contradict its contradictions without end." Joel R. Cornwell, Legal Writing as a Kind of Philosophy, 48 Mercer L. Rev. 1091, 1094 (1997). By "deconstruct" I mean a kind of limited "close reading" focused on flaws in a judicial opinion's facial logic, the purpose being to reveal more fundamental influences underlying the judge's result. See Fajans & Falk, infra note 14. For perspectives on how more advanced deconstructive readings can facilitate interpretation of legal texts, see Menkel-Meadow, supra note 13, at 12-24; Cornwell, supra note 13, at 1093-1113.

[FN14]. Elizabeth Fajans & Mary R. Falk, Against the Tyranny of Paraphrase: Talking Back to Texts, 78 Cornell L. Rev. 163, 163-166 (1993) (discussing the nexus between critical reading and writing and arguing that students should be taught "techniques of patient intellectual inquiry").

[FN15]. Stated another way, law "students need to develop schemata for the legal system, the structure of the discourse, and the conventions of that discourse in order to analyze legal problems accurately and efficiently." Paula Lustbader, Construction Sites, Building Types, and Bridging Gaps: A Cognitive Theory of the Learning Progression of Law Students, 33 Willamette L. Rev. 315, 327 (1997).

[FN16]. Fajans & Falk, supra note 14, at 188 & n. 116 (quoting Joseph M. Williams, Afterward: Two Ways of Thinking about Growth, in Thinking, Reasoning, and Writing 253 (Elaine P. Maimon et al. eds., 1989).

[FN17]. See infra notes 20-30 and accompanying text.

[FN18]. See infra notes 31-56 and accompanying text.

[FN19]. See infra notes 57-106 and accompanying text.

[FN20]. By "formalism," I mean "legal formalism" as defined below:
In literature, formalism usually refers to a method of criticizing literary works that focuses on language and genre to the exclusion of other explanations for the work's meaning (such as historical context or author's intent), whereas, in law, formalism usually refers to the claim that well-crafted rules embodied in authoritative texts will constrain the choice of an impartial decisionmaker.
Jeffrey Malkan, Literary Formalism, Legal Formalism, 19 Cardozo L. Rev. 1393, 1393 (1998).

[FN21]. Id.

[FN22]. See Richard Rorty, Contingency, Irony, and Solidarity 8-9 (1989).

[FN23]. See J. Christopher Rideout & Jill J. Ramsfield, Legal Writing: A Revised View, 69 Wash. L. Rev. 35, 55 (1994).

[FN24]. "[W]riting does not represent law, but makes it." Cornwell, supra note 13, at 1095.

[FN25]. We certainly would be doing our students a disservice if we did not design problems to encompass some legal issues with more or less predictable results. See Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 406-08 (1985) (discussing easy cases in the context of constitutional adjudication). These "easy cases," however, are not due to scientifically determined results; instead, this predictability is the result of: "an existing structure of legal argumentation" which "orients thought according to a predictable scheme"; this "orientation of thought" and the shared legal culture of judges and theorists, in turn, "limits the number and variety of perceived ways to resolve conflicts." Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 21 (1984).

[FN26]. "[W]riting is the interplay of images that we call thinking .... writing is thought in its purest possible form." Cornwell, supra note 13, at 1094-95.

[FN27]. Elizabeth Fajans & Mary R. Falk, supra, note 14, at 163 (quoting Robert Scholes, Textual Power (1986)).

[FN28]. I do not use the term "product" to denote the product approach to teaching legal writing students. The product approach "focuses on what to write and the rules for writing, with the professor's primary input on evaluation of the final product." Jo Anne Durako et aL, From Product to Process: Evolution of a Legal Writing Program, 58 U. Pitt. L. Rev. 719, 721 (1997). I simply mean that law students must be made familiar with the various formats for standard legal documents. See Carol McCrehan Parker, Writing Throughout the Curriculum: Why Law Schools Need It and How to Achieve It, 76 Neb. L. Rev. 561, 580-81 (1997).

[FN29]. See Cornwell, supra note 13, at 1134 (stating that "[t]he traditional model of IRAC thus reinforces the stereotype that legal writing is a technical exercise in graphic representation, a mere reflection of legal truths that precede linguistic manifestation").

[FN30]. For a discussion of the importance both academicians and professionals place upon teaching skills in law school, see ABA Section of Legal Education and Admissions to the Bar, Legal Education and Professional Development -- An Educational Continuum (July 1992) (Report on Task Force on Law Schools and the Profession: Narrowing the Gap --the "MacCrate Report"). See also ABA Section of Legal Education and Admissions to the Bar, Sourcebook on Legal Writing Programs 17 (1997) (describing legal analysis as "[o]ne of the most important skills taught in legal writing courses").

[FN31]. See Friedland, supra note 6, at 28 (citing statistics showing that 97% of first-year teachers surveyed claimed to use the Socratic method "some of the time"). Thirty percent of teachers in this group used the Socratic method "'most of the time,' and forty-one percent used it 'often."' Id. Friedland's data also indicates that "female professors use non-Socratic methods in first year courses to a slightly greater degree than Socratic methods." Id. at 40.

[FN32]. Professor Neumann first identifies and then describes the two components of "[a] true Socratic dialogue" as follows:
the elenchus and the psychagogia. In the elenchus, the teacher's questions guide the student to an understanding of the nature and extent of his or her ignorance. The elenchus ends when the student reaches aporia, a state of new-found perplexity. In the psychagogia (literally, the leading of a soul), the questions help the student construct the knowledge that the elenchus showed was lacking (footnote omitted).
Neumann, supra note 6, at 730. Its application in the law school classroom often involves "a brutal elenchus" followed by the psychagogia as "a brief afterthought" if the latter occurs at all. Id. at 732. Stated another way, "'the professor's capacity to criticize within the Socratic method exceeds his synthetic or constructive capacity."' Id. (quoting Alan A. Stone, Legal Education on the Couch, 85 Harv. L. Rev. 392, 415 (1971)).

[FN33]. Id. at 728 & n.14. See also Childress, supra note 7, at 335 & n. 5, 336. Very few teachers refuse to answer all questions. See Thomas L. Shaffer & Robert S. Redmount, Legal Education: The Classroom Experience, 52 Notre Dame Law. 190, 203 (1976).

[FN34]. Neumann, supra note 6, at 728 & n.14.

[FN35]. Childress, supra note 7, at 336.

[FN36]. Id. See supra notes 20-25 and accompanying text.

[FN37]. Childress, supra note 7, at 336. During the 1930's, legal realists began to challenge "excessive formalism." Id. More recently, members of the critical legal studies movement have provided a harsh criticism not only to formalism in the law, but also to the Socratic method as utilized in law schools. See Duncan Kennedy, How the Law School Fails: A Polemic, 1 Yale Rev. L. & Social Action 71, 72-73 (1970) (discussing the "emotional harm" to students). Women have recently joined the criticism of the Socratic method as practiced in law school:

[M]any women are alienated by the way the Socratic method is used in large classroom instruction, which is the dominant pedagogy for almost all first-year instruction. Women self-report much lower rates of class participation than do men for all three years of law school. Our data suggest that many women do not "engage" pedagogically with a methodology that makes them feel strange, alienated, and "delegitimated." These women describe a dynamic in which they feel that their voices were "stolen" from them during the first year. Some complain that they can no longer recognize their former selves, which have become submerged inside what one author has called an alienated "social male."
Lani Guinier et al., Becoming Gentlemen: Women's Experiences at One Ivy League Law School, 143 U. Pa. L. Rev. 1, 3-4 (1994) (footnotes omitted).

[FN38]. Bolla, supra note 7, at 566 & n. 63 (quoting William C. Heffernan, Not Socrates, but Protagoras: The Sophistic Basis of Legal Education, 29 Buff. L. Rev. 399, 404 (1980)).

[FN39]. June Cicero, Piercing the Socratic Veil: Adding an Active Learning Alternative in Legal Education, 15 Wm. Mitchell L. Rev. 1011, 1012-13 (1989) (footnotes omitted).

[FN40]. Id. at 1013.

[FN41]. Childress, supra note 7, at 339 & n. 16.

[FN42]. See supra notes 20-30 and accompanying text.

[FN43]. "[A] danger is present that the [Socratic] 'game' played well will seem real, obscuring the approach's manipulability and its vulnerability to objective reality. The professor can guard against this impression by a candid and self-conscious examination of the 'game' itself." Childress, supra note 7, at 339 (footnote omitted).

[FN44]. Id. at 338-40.

[FN45]. The failure to explain may be due in part to time constraints caused by "an algebraic increase in cognitive information in all areas of the law." Neumann, supra note 6, at 739-40.

[FN46]. Childress, supra note 7, at 347-48.

[FN47]. Legal writing teachers have advocated integrating the Socratic method with the writing process and thereby utilizing the Socratic dialogue in the legal writing classroom. See Mary Kate Kearney and Mary Beth Beazley, Teaching Students How to "Think Like Lawyers": Integrating Socratic Method with the Writing Process, 64 Temp. L. Rev. 885 (1991). In her book, Legal Writing, Process, Analysis, and Organization, Linda Edwards describes the organizational paradigm for the objective memorandum "generally as IRAC (Issue, Rule, Application, Conclusion)." Edwards, supra note 1, at 86. While Shapo does not explicitly provide a label, a traditional IRAC paradigm is set forth in chapter six, "Organization of a Legal Discussion: Small-Scale Organization." Shapo, supra note 1, at 106-18. Calleros, describes IRAC as a "form of deductive reasoning appropriate to an objective analysis in an office memorandum" and CRAC, "Conclusion, Rule, Application of the legal rule to facts, and Conclusion," as the paradigm appropriate for advocacy. Calleros, supra note 1, at 329.

[FN48]. Students often feel not only powerless in the Socratic classroom, but even abused. See Childress, supra note 7, at 341-42. See also Kennedy and Guinier, supra note 37.

[FN49]. Id.

[FN50]. In order for students to understand this point, they must be made aware of their own writing process:
The pedagogical purpose of replacing the product method with the process method has been explained by Donald M. Murray, one of the process method's earliest proponents:
The process of making meaning with written language cannot be understood by looking backward from a finished page. Process cannot be inferred from product any more than a pig can be inferred from a sausage. It is possible, however, for us to follow the process forward from blank page to final draft and learn something of what happens.
Kearney & Beazley, supra note 47, at 888 (footnote omitted).

[FN51]. "Virtually every objective memorandum problem in first-year legal writing courses is designed to present the student with some critically ambiguous fact or fact complex to be resolved in light of two lines of authority to which analogies must be drawn." Cornwell, supra note 13, at 1116.

[FN52]. Id. After I grade their memoranda, I often hand out samples of different student memoranda in which the authors have chosen different cases or have organized the cases differently. We walk through the examples together and discuss these examples of persuasive technique. For the teacher who does not like to use students' work product, examples can be created very easily. The teacher can then hand out a portion of a memorandum which the teacher has constructed in two different ways.

[FN53]. See Fajans & Falk, supra note 14, at 195 ("[a]sking how a court reads caselaw or a constitution also implicates the ways it chooses not to read, that is, the texts it rejects").

[FN54]. Id. at 194. The authors suggest an example: the majority and dissenting opinions in the United States Supreme Court decision, Goldberg v. Kelly, 397 U.S. 254 (1970). Id. Writing for the majority, Justice Brennan ruled that the Due Process Clause of the Fourteenth Amendment requires that a state provide an evidentiary hearing before terminating welfare benefits. Goldberg, 397 U.S. at 264. Justice Black argued in dissent:
I regret very much to be compelled to say that the Court today makes a drastic and dangerous departure from a Constitution written to control and limit the government and the judges and moves toward a [C]onstitution designed to be no more and no less than what the judges of a particular social and economic philosophy declare on the one hand to be fair or on the other hand to be shocking and unconscionable.

Id. at 277. Some teachers of legal writing may be hesitant to use this example, particularly in a first-semester course, because it involves a due process issue. There are, however, many cases which can be effectively used in the first-semester. The majority and dissenting opinions in the "Baby Richard" case provide an excellent example for first-semester students. See Cornwell, supra note 13, at 1129 n. 86. In re Petition of Doe, 627 N.E.2d 648 (Ill. App. Ct. 1993), rev'd, 638 N.E.2d 181 (Ill. 1994), cert. denied, 115 S. Ct. 499 (1994).

The majority opinion of the appellate court tells a story of an absent natural father who has reason to think his child might have been placed for adoption by his girlfriend, but who does not care to consult a lawyer until over two months after the child is nurtured by adoptive parents. Id. at 649-56. The dissent tells the story essentially from the point of view of the natural father, who is portrayed as a supportive father-to-be subsequently the victim of his girlfriend's deception -- a deception of which the adoptive parents and their attorney were aware. Id. at 656-66.
Cornwell, supra note 13 at 1129 n. 86.

[FN55]. This is probably due to the fact that they see the judicial opinion as authority. See Fajans & Falk, supra note 14, at 165.

[FN56]. Id. at 164. The authors offer an explanation for student hesitancy to read judicial opinions critically: "Judicial opinions are not just interpretation -- they are adjudication, and adjudication is power, coercion, even violence. To read judicial opinions closely and critically is to talk back to power." Id. at 165.

[FN57]. 388 U.S. 307 (1967).

[FN58]. 394 U.S. 147 (1969).

[FN59]. Id. at 148-49; 388 U.S. at 310-11. See also Sally Frank, Eve Was Right to Eat the "Apple": The Importance of Narrative in the Art of Lawyering, 8 Yale J.L. & Feminism 79, 84 (1996) (using these two cases to illustrate "the flexibility that lawyers and judges may enjoy in constructing narratives").

[FN60]. Shuttlesworth, 394 U.S. at 148; Walker, 388 U.S. at 308.

[FN61]. See infra notes 78-80 and accompanying text.

[FN62]. See infra notes 81-87 and accompanying text.

[FN63]. See infra notes 88-89 and accompanying text.

[FN64]. See infra notes 90-99 and accompanying text.

[FN65]. Of course, I do not provide this background information to my students. Instead, I let them discover some of this information as they read the two excerpted cases. I find it is a much more powerful demonstration of persuasion if, for instance, they learn that Dr. King was a defendant in the Walker case, but he is not directly mentioned anywhere in the fact section of the opinion. I add the other more emotional facts which are also omitted from the Court's opinion (such as the nature of his confinement after his arrest) as we move through the readings.

[FN66]. See David Benjamin Oppenheimer, Kennedy, King, Shuttlesworth and Walker: The Events Leading to the Introduction of the Civil Rights Act of 1964, 29 U.S.F.L. Rev. 645, 654-64 (poignantly describing the events surrounding Reverend King's march in Birmingham).

[FN67]. Id. at 646.

[FN68]. Id. at 658 (quoting Martin Luther King, Jr., Why We Can't Wait 50 (1964)).

[FN69]. Id. & n. 68.

[FN70]. Id. at 658.

[FN71]. Id.

[FN72]. Id. at 659. In responding to their request for a permit to march, Eugene Connor, Public Safety Commissioner, proclaimed: "You will not get a permit in Birmingham, Alabama, to picket. I will picket you over to the City Jail." Id. at 659-60 (quoting Transcript of Record at 352-55, Walker v. City of Birmingham, 388 U.S. 307 (1967) (No. 67 - 249)).

[FN73]. Id. at 661-62.

[FN74]. Id. at 660.

[FN75]. Id. at 660-61.

[FN76]. Id. at 661.

[FN77]. Id. at 662.

[FN78]. Walker, 388 U.S. at 320-21. The injunction was issued pursuant to a Birmingham parade ordinance which required a permit for "any parade or procession or other public demonstration on the streets or other public ways of the city, ..." Id. at 309 n. 1.

[FN79]. Id. at 310-11 (footnote omitted).

[FN80]. 394 U.S. at 148-49, 157-58 (citations and footnote omitted).

[FN81]. See Fajans & Falk, supra note 14, at 193. The authors posed similar questions in their close or critical reading exercise utilized in an advanced legal writing seminar.

[FN82]. Walker was decided in 1967, 388 U.S. at 307, and Shuttlesworth was decided in 1969. 394 U.S. at 147.

[FN83]. Shuttlesworth, 394 U.S. at 157.

[FN84]. Id. at 148-49.

[FN85]. Id. at 149. See Walker, 388 U.S. at 310.

[FN86]. Walker, 388 U.S. at 310.

[FN87]. Shuttlesworth, 394 U.S. at 148.

[FN88]. 388 U.S. at 320-21 (footnote omitted).

[FN89]. 394 U.S. at 151 (footnote and citations omitted).

[FN90]. See Fajans & Falk, supra note 14, at 193-96 (asking similar questions).

[FN91]. Walker, 388 U.S. at 320-21.

[FN92]. Id. at 321.

[FN93]. Id.

[FN94]. 394 U.S. 151.

[FN95]. Id.

[FN96]. Dr. King was assassinated in April, 1968. See W. Dennis Keating, The Parma Housing Racial Discrimination Remedy Revisited, 45 Clev. St. L. Rev. 235, 237 (1997); Cynthia N. McKee, Resurrecting Mount Laurel: Using Title VIII Litigation to Achieve the Ultimate Mount Laurel Goal of Integration, 27 Seton Hall L. Rev. 1338, 1355 (1997).

[FN97]. "Robert Kennedy, former Senator from New York and then Attorney General of the United States, was assassinated on June 5, 1968. He was a key proponent of America's desegregation effort before his death. As Attorney General, he pledged to press forward to desegregate the public schools." Jose Felipe Anderson, Perspectives on Missouri v. Jenkins: Abandoning the Unfinished Business of Public School Desegregation "With all Deliberate Speed," 39 How. L.J. 693, 716 n. 123 (1996).

[FN98]. See Keating, supra note 96 at 237.

[FN99]. In five years, this country "had endured the assassination of a president and two other national leaders (Robert Kennedy and Dr. Martin Luther King, Jr.). We had experienced Kent State, riots at the Democratic Convention, and the bombing of Cambodia." William R. Glendon, The Pentagon Papers -- Victory for a Free Press, 19 Cardozo L. Rev. 1295, 1306 (1998).

[FN100]. A copy of this letter in its entirety can be found in David Benjamin Oppen-heimer, Martin Luther King, Walker v. City of Birmingham, and the Letter from Birmingham Jail, 26 U.C. Davis L. Rev. 791, 835-51 (1993). I have set out some parts of it in an appendix.

[FN101]. See Appendix, infra.

[FN102]. See Frank, supra note 59, at 84 (discussing the two different narratives embodied in Walker and Shuttlesworth).

[FN103]. One author argues:
It is currently fashionable to analogize the rhetorical theory of closing arguments closely upon the dramatic arts and storytelling (the Literary Analogy). While these comparisons are very powerful and have had a salutary effect on trial theory and technique, they are dangerous and ultimately misleading, because they overlook the uniqueness of the closing (footnote omitted).

Michael Sean Quinn, Closing Arguments in Insurance Fraud Cases, 23 Tort & Ins. L.J. 744, 749 (1988). The author further argues that "principles applicable to political orations, after-dinner addresses, sermons, ardent entreaties to one beloved, theatrical monologues, and academic papers are all inapplicable to closing arguments." Id.

[FN104]. See Appendix, infra.

[FN105]. Id.

[FN106]. Id.

In answering those who criticized the marchers for not allowing the newly elected city administration time to implement change, Dr. King stated:

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct-action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."

We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy why do white people treat colored people so mean?"; when you take a cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs *188 reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" -- then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. [FN107]

In response to the criticism that he and the other marchers had broken laws, Dr. King argued:
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the term of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the *189 terminology of the Jewish philosopher Martin Buber, substitutes an "I-it" relationship for an "I-thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically, and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.