Excerpted From: Ashley Binetti Armstrong, The Stories We (Don't) Tell: Using Case Briefing to Explore Bias and Oppression in the Law, 28 Legal Writing: The Journal of the Legal Writing Institute 377 (2024) (138 Footnotes) (Full Document)

AshleyBArmstrongCase briefing has long been a cornerstone of American legal education, where the case method has dominated pedagogy since its inception in 1870. This essential tool requires law students to actively engage in reading cases--helping them develop analytical skills and better understand judicial opinions.

Traditionally, a case brief includes the case name, identity of the parties, court and judge, material facts, procedural history, issue(s) presented, holding, judgment, reasoning (including dicta), and possibly a section for notes (including a summary of the concurrence and dissent, if either are included in assigned reading). In this way, conventional case briefing focuses on the text of the opinion--how courts frame and resolve legal issues. Following this approach, Orin S. Kerr's popular guide for new law students, How to Read a Legal Opinion, instructs students to “know the facts,” and “understand the reasoning [and] .... significance of the majority opinion.” While Kerr's guide is an invaluable resource for students, mastering these objectives solely through an examination of the opinion's four corners is impossible. Answering these questions competently requires studying the contextual backdrop in which a case unfolds. It means reading cases “differently”--including by “attending to the way judicial opinions function as cultural productions that create and recreate race,” and cultivating an awareness of how law and culture are inseparable.

This Essay demonstrates that legal educators can choose to teach case briefing in a way that still achieves its traditional purpose, while also encouraging students to investigate bias and oppression in the law. By discussing socio-historical context during class or assigning reimagined judicial opinions alongside the original opinion, this method of teaching case briefing asks students to consider the stories that judges don't tell (and why).

When teaching legal skills like case briefing, I intentionally highlight the non-neutrality of law and prepare students to understand the intersection of race and the law--both how race has impacted the development of law, and how race continues to affect the enforcement of law today. My class engages in this exercise early in the course, setting the tone for how we will carefully, purposefully analyze and seek to understand the law. We acknowledge, from the outset of the course, that the law is not neutral and that uncovering bias, oppression, and discrimination in its application is paramount. Not only are law students receptive to this critical approach, they welcome it. Additionally, the American Bar Association now requires law schools to “provide education ... on bias, cross-cultural competency, and racism.” The ABA conceives of this requirement as part of a lawyer's professional responsibility, which entails working towards a legal system that “provides equal access and eliminates bias, discrimination, and racism in the law.” This work is also an indispensable part of professional identity formation--as law students begin to understand their professional duties and identify what kind of lawyers they want to be.

This Essay is situated among critical legal studies scholarship that acknowledges the traditional approach to case briefing is unsatisfactory at best, and deeply problematic at worst. Traditional case briefing does not provide students with the full picture, and there is “no discussion of how to reveal what is not said in opinions.” It is not aimed at transformation, which “requires adding depth by uncovering narrative and including backstories” to “help[] students [] contextualize the law.” It presents the law as the neutral product of reasoned analysis when the law produces outcomes that are unjust or discriminatory, or otherwise hurt marginalized groups. And, yet, with all its shortcomings, it forms the basis of 1L coursework.

However, especially in the last two decades, more law professors are weaving critical context into their class discussions of cases and doctrine. Here, I aim to provide practical guidance to build on these efforts, and hopefully to inspire others to try these methods in their law school classrooms. Thus, this Essay provides two concrete examples of how to engage students in the project of contextual case briefing. The method I describe here spans teaching fact analysis as part of teaching legal analysis, the role of narrative and storytelling in the law and in legal discourse, and the use of storytelling to investigate racial (in)justice. When I teach case-briefing this way, we first brief the case and aim to understand the opinion as written, then we discuss critical narratives missing from the majority opinion--either by studying historical context or by engaging with reimagined judicial opinions as a comparator. This Essay proffers two examples that illustrate these approaches: United States v. Robinson, 414 U.S. 218 (1973) and Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (1965).

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Case briefing is a critical skill for law students to develop. The traditional method focuses on the text of the opinion--how courts frame and resolve legal issues. While it is, without doubt, essential for law students to understand the text of an opinion, focusing on the text alone often masks issues of bias, oppression, and injustice. By engaging students with socio-historical context and reimagined judicial opinions, we can teach case briefing in a way that asks students to examine the stories that judges don't tell--helping them become more competent legal thinkers and advocates in a system that aspires to “eliminates bias, discrimination, and racism in the law.”

Assistant Clinical Professor, University of Connecticut School of Law.