Getting Past Legal Analysis . . . or How I Learned to Stop Worrying and Love Teaching Rape

• Publication year: 2022

45 Creighton L. Rev. 799. GETTING PAST LEGAL ANALYSIS . . . OR HOW I LEARNED TO STOP WORRYING AND LOVE TEACHING RAPE

GETTING PAST LEGAL ANALYSIS . . . OR HOW I LEARNED TO STOP WORRYING AND LOVE TEACHING RAPE

Michelle Oberman(fn*)

Long after the rape chapter was over, when we had moved on to inchoate crimes and cases involving "call girls" and conniving defendants who took messages for them in an era before voicemail-protago-nists with whom my students, it seemed safe to wager, were unacquainted-the thoughtful young man from the third row stopped in to ask, "What was the take away from the classes on rape?"

I know I answered using too many words. It is what I do when I feel slightly defensive. Now that I have had some time to think about it, I offer him, and all of you, this answer. My hope is that, in explaining my approach to teaching rape, I will also address the deeper themes afoot in contemporary critiques of legal education: whether and how law schools are training students for the practice of law, and what practical use, if any, is served by scholarship among legal aca-demics.(fn1) At the very least, I will tell you a story about how I stopped worrying and learned to love teaching rape.

I. TEACHING RAPE

Semester after semester, I tread anxiously into rape's domain in my first year Criminal Law class. Unlike most other crimes we study, coerced sex is something my students inevitably know something about. In any classroom of eighty, or even of forty, it is likely both victims and perpetrators of sexual offenses are present.(fn2) Rape is so prevalent in society that I believe it is unconscionable for a criminal law professor to skip the topic. And yet, the casebook method of using cases to elucidate underlying doctrine seems calculated to cause pain by disconnecting the students from their lived experiences.

A. THE PROBLEM WITH CASEBOOK APPROACHES TO TEACHING RAPE

The conventional criminal law casebook approach to rape, like its approach to other criminal law topics, emphasizes "hard" or "close" cases. The professor uses these cases to hone the students' abilities to apply the same skills they have been learning all semester: legal analysis and reasoning. Unlike other crimes, the rape sections of criminal law casebooks tend to feature prefatory materials that aim to set the context for the cases that follow. Typically, this context includes statistics on the paradox of rape's high prevalence and low reporting rates, coupled with summaries of rape law reform endeavors and some personal anecdotes about rape.(fn3) This introduction alerts the students to rape law's uniqueness, as other topics generally begin with a paragraph or two of background, followed by appellate cases and all but inscrutable questions meant to guide the students toward the fault lines in the case law.

Those of us who teach rape (and not all criminal law professors do),(fn4) typically do not know what to do with the background readings. They are emotional, and little in teaching law prepares a professor to acknowledge, let alone to harness, an emotionally sensitive subject like rape. As for the students, the background readings seem to scream: "This material will not be on the final exam." Given the emotional pain of the topic, why would a student who is otherwise uninterested in the subject bother to struggle through this background? And the student who looks to these readings to help make sense of their personal experience with the crime of rape-be it their own or that of a friend-will find that the introductory readings fail to clarify anything they do not already know: the criminal justice system does a poor job addressing sex crimes.

In view of the experiences students bring with them to the topic of rape, it is easy to see why the "hard" cases approach to teaching the subject is ill advised. How can we expect a rational assessment of the implications of rape law's definition of mens rea or actus reus from a student whose freshman roommate dropped out after she had intercourse with seventeen drunk boys at a fraternity party? Many subjects in the conventional first-year curriculum are well suited to teaching legal reasoning, but really, what is gained by teaching students to ignore their emotional responses to rape, and to focus instead on learning the "rules" that purportedly govern the crime?

B. TEACHING SKILLS V. TEACHING THEORY: THE FALSE DICHOTOMY

In view of the foregoing concerns, I decided to reach outside of the casebook in teaching rape. My approach was informed not simply by my sense that the casebook was misguided, but also by two debates simmering in the legal academy. The first involves whether professors are teaching students what they need to know in order to practice law.(fn5) The second involves whether legal scholarship is a parasitic, narcissistic endeavor, in which schools funnel students' tuition dollars into the production of articles so disconnected from the law as to be worthy of ridicule.(fn6) Try as I might to ignore these debates and focus on teaching my classes, I am a relatively productive scholar at a school whose students do not easily waltz into the arms of waiting employers. Both debates make me feel the need to justify my secure foothold in this tilting universe.

First, a word about the allegation that law schools are not teaching students the skills they need to become lawyers. I have been cognizant of this argument since 1992, when the American Bar Association ("ABA") published and circulated the MacCrate Report ("the Report").(fn7) Robert MacCrate, a retired partner at Sullivan & Cromwell LLP, chaired the ABA's Task Force on Law Schools and the Profession and authored the Report, which argued that law schools should be revamped to provide students with a practice-oriented curriculum, as opposed to a theory-oriented curriculum.(fn8)

In 1992, I was new to teaching law, and susceptible to the Report's message that I probably was not doing a good job preparing my students for the practice of law. After all, no one taught me how to teach law, and my ideas about the skills my students needed were fuzzy, having spent so little time in the practice of law myself. Who was I to merit the responsibility of training a new generation of lawyers?

Apparently others agreed with me, because rather than being ignored, MacCrate's ideas percolated through the curriculum at numerous law schools around the country. As Brian Leiter noted in his response to David Sloan's lament about law schools' failure to train students for practice, virtually every school in the country now offers a host of practice-oriented classes.(fn9) No longer content to offer three straight years of doctrinal teaching, schools now pride themselves on the skill-based opportunities they offer their students, whether in the form of clinics, field placements, or skills classes.(fn10) What is less clear is how to incorporate the teaching of skills into the large classroom setting.(fn11) The tone of the debate, which registers largely as attack on law schools for failing to train lawyers, does little to illuminate this project.(fn12)

I understand the passion beneath the attack on the state of legal education. Since the most recent economic downturn, law school graduates have struggled, along with many other Americans, to find work.(fn13) It is only natural for graduates to question the legitimacy of the enterprise that led them to incur debt in exchange for the promise of becoming a professional. I wonder, though, how much of the blame belongs at the feet of law school professors?

I have yet to see data linking the underemployment of recent law school graduates to the skills they failed to learn in law school.(fn14) Nonetheless, as one who remains scathed by the hazing rituals of a conventional legal education, I am sympathetic to the idea that the legal academy could be improved by diversifying the skill set it imparts to law students. As a result, I spent considerable time in this, my twentieth year as a law professor, thinking about how I might impart a richer variety of useful legal skills in the first-year class I teach.

But it was not only the debate over what law professors teach that registered with me as I taught my fall classes. In addition, I found myself wincing at the attacks leveled against legal scholarship. The New York Times published a number of critiques on the nature of the scholarship produced and valorized by the legal academy.(fn15) My body of work, though lacking the fancy titles of articles being mocked, stands guilty of many of the charges these critics have leveled.(fn16) I cannot boast a long line of judicial opinions citing to my work, and although lawyers occasionally contact me to discuss the issues I have studied, typically they seek background information rather than, just say, guidance on how to craft a defense for a particular client.

I found myself questioning the utility of my scholarship, particularly from the perspective of my students. Increasingly, my articles have veered away from normative arguments about how the law should address a given issue and steered into ethnographic explorations of the messy reality found at the intersection of women's health and the law.(fn17) I encourage my readers to understand my arguments by showing them what I see, rather than by telling them what to think.(fn18) In short, I have embraced storytelling as a methodology-a...