Grounding Practice Research in Law

CfD Conversation Fall 2023–3 | November 20, 2023

Written by Julie Farkas, Sankalp Bhatnagar and Elena Kuran

Continuing the Conversations Series that highlights Center for Design Bridges Fellows, Sankalp Bhatnagar led a discussion with his law school research assistants on reimagining the design of case-based legal education through practice research.¹ Though Bhatnagar studied design rather than law, he makes use of his background by working in the field of legal design. In general, legal design² is an emerging approach that brings law and design together with the intent of improving the experience people have when accessing legal services, navigating legal systems, or interacting with legal products. Bhatnagar entered this field after participating in a seminar at Harvard Law School, exploring law, justice, and design alongside law students.

Thereafter, he began to work in the field as a researcher with NuLawLab at the Northeastern University School of Law, then as a fellow at the Library Innovation Lab at Harvard Law School, followed by a fellowship with the Center for Design at the Northeastern University College of Arts, Media and Design, and finally an affiliation with metaLAB at the Harvard University Graduate School of Design. Whether through teaching speculative and critical design approaches to law students or supervising them through practice research, his understanding of design research and what it means to undergo an education in design has been transformed.

Bhatnagar’s team’s core question is, “How might we equip law students to see and show each other how lawyers and judges design the world around us?” But before we delve into the project, it may be helpful to highlight a few terms from the world of American legal education:

• Christopher Columbus Langdell is credited for having introduced the case method into American legal education at Harvard Law School through an idea that the study of law should be a science.
• Case method is a method of studying law through actual court cases, demanding law students with making propositions rather than memorizing rules or apprenticing with practitioners
• Briefing is how law students summarize cases according to terms expected of them by professors in preparation for classes taken during the first year of law school. The seven dimensions of briefing include facts, issue, holding, rationale, history, disposition, and analysis.
• Mooting is how law students rehearse arguments amongst one another before a panel of judges typically consisting of jurists like sitting court justices or current law professors.
• Ontological Skills are those skills with which people change the way things exist in the world around themselves, typically with others and through intensely involved practices.

Design and Law

The main goal of this project is to illuminate common ground between design education and legal education. It responds to a recent observation by two legal educators that the staying power of the case method nearly a century and a half ago is, in fact, tied to its design.³ Bhatnagar’s team goes further, arguing that the narrow, technical, and instrumental worldview behind this method has led generations of law students to see and deal with cases as objects not worlds, arguments as technical not historical, and inquiry as epistemic not ontological. The result being, paradoxically, that the design of the case method has kept law graduates from recognizing the design skills already at work throughout legal practice. To this end, the team has described what they consider to be four practices unique to the design of case-based legal education — briefing, outlining, mooting and journaling — which they hypothesize represent contexts within legal education for the cultivation of ontological skills of design. Making this move enables them to study the experience that law students have acquiring skills and exercising reflection within each, all toward reimagining the style of American legal education.

Kelsey Cumiskey, a research assistant on the project, focuses on the history of and literature surrounding the case method of learning in the United States. The case method teaches law by assigning legal cases for students to read, then leading students through analysis in class via Socratic questioning. This method of questioning involves contending with legal hypotheticals iteratively developed through dialogue with an educator to expose the student’s assumptions about the law. Though this way of professing law may seem like a strange practice to outsiders, it has remained mostly unchanged since it was introduced by Christopher Columbus Langdell over 125 years ago at Harvard Law School. In the world of legal education, and even education in general, that is a resilient curriculum.

The team is investigating what it is about the design of Langdell’s method that has given it such staying power. They believe part of the answer is what legal educators have already recognized, which is that the case method was reconfigured to address several concerns of practice simultaneously:

1. It offered a way to communicate information to students.
2. It cultivated a style of reasoning and questioning that was “intellectually respectable” at the time and well-suited to teaching the “charismatic practice of law.”
3. It was a way to engage a large number of students while keeping expenses low and using few materials.

The team began the academic year by turning their attention to case briefing. Case briefing is a legal study technique where students summarize assigned cases to prepare for class. Like the case method, the substance of briefing cases has also remained mostly the same. The team is researching what purpose case briefing serves in the design of legal education and why it has become so widespread, considering it is rarely, if ever, taught as a practice of legal thinking.

“Case briefing is very interesting because it’s not explicitly taught in law school as part of the case method…It’s a very interesting practice because, while there are examples of law school guidebooks recommending this practice of briefing as early as the 1930s, it’s not taught explicitly as part of the curriculum. It just sort of happens.” — Kelsey Cumiskey

While Cumiskey highlighted the history and literature of legal education, another research assistant, Elena Kuran, detailed what the research of the team as a whole has consisted of so far. Kuran was drawn to this project because of her belief in the transformative potential for reimagining legal education and the law profession through a dialogue between law and critical design. For example, when she first learned about human-centered design, she thought it sounded a lot like critical approaches to law.

The question Kuran is trying to answer as part of this team is, “What can the traditions of debate, inquiry, and critique within law schools and design schools offer each other?” Some tasks that the team has completed so far in this project to find an answer to the question include:

1. Analyzing publicly available databases about cases decided by the Supreme Court of the United States, using quantitative techniques to sort cases according to the ontological skills that were exercised in each and using shared characteristics widely accepted by legal scholars
2. Reading and summarizing the philosophy of history, not just legal history, to understand how a disposition toward honoring precedent may impede progress, and to explore its promise
3. Generating a shared lexicon for the meanings of technical terms from law, design and philosophy, outside of their meanings in daily life
4. Engaging in counter-mapping exercises led by team designer Phoebe Walton to explore the structure of cases or casebooks according to conceptions of law that they make possible
5. Conducting a series of semi-structured on-campus interviews with upper-level law students at Harvard Law School to understand how briefing enabled their learning of law

Kuran firmly believes that the law is an imperfect but powerful tool for justice that is in desperate need of a redesign. However, any such redesign of the law should ensure that legal design implementations do not further enshrine systemic biases, but instead should enshrine dignity for its users, including plaintiffs, defendants, lawyers, and judges. Therefore, this project of redesigning how future lawyers and judges approach the practice of law and legal thinking and are socialized in their professional identities inherently carries a political sentiment.

“What I find most exciting about this project is that it will hopefully help students, future lawyers, and judges culminate the law as a whole–meaning law at its best is uncovering, reconfiguring, and articulating what’s lawful, right, and just for everyone involved. That will require a critical but empathetic eye every step of the way.” — Elena Kuran

This team hopes to equip their current participants and future collaborators with the skills and knowledge to make arguments instead of apps, to make scenarios instead of services, and to justify decisions instead of products. In other words, these people will exercise design skills to create changes they are called on to make as legal practitioners by the legal profession.

“What I would argue is that it could be considered a contribution to design knowledge, in part because our work, unlike quite a lot of approaches that seek to sort of bring together design and law, does not presuppose that design is outside of law.” — Sankalp Bhatnagar

Legal Imagination

Imagination is a long-standing concept in design education. However, one of the ideas that popped up at the start of the Q&A portion of the event was legal imagination. Bhatnagar explains that one of the main resistances to this project, when articulating its value to partners such as judges, is the aversion of practitioners to be seen as employing imagination. Judges do not want to be thought of as imaginative, and similarly, do not like to think of what they do as being imaginative, for fear of losing respectability or credibility. However, though not often taught explicitly, the development of that skill is necessary to practice, as argued by legal educators.

Bhatnagar suggests reframing imagination. He says it is not about making things up, but about making worlds known. How else is a lawyer or judge, when arguing or justifying a case that was brought before a court because it is at odds with the dominant imagination of its time, supposed to do so effectively? The world, Bhatnagar argues, looked different before and after landmark cases, precisely because lawyers and judges successfully exercised the skills of ontological designing.⁴

Turning back to the history of legal education, Cumiskey posits that Langdell, in creating the case method, was trying to elevate legal education to a natural science. A consequence of that elevation is a false air of neutrality. It teaches that judges are applying the law by acting as a neutral body of information, and not that they are using imagination, which may be considered more subjective. In discussing legal imagination, panelists and guests all agree that, though very necessary and in fact already always in practice, imagination is almost a taboo concept in the field of law. This discomfort speaks to a possible critique of our culture.

“Every judge will acknowledge that they are required every day to leverage enormous amounts of imagination, because every decision is a decision where you have the square peg of the fact and the round hole of the law, and you push it through, and you get a weird shape out of it, but that’s what comes out, right? And it requires a tremendous amount of imagination to make that happen, so I think imagination infuses the law, but it is hidden by a construct that has been deliberately structured to avoid the appearance of imagination or creativity, and it comes out as looking almost preordained. The thing I like about this project…is that this project peels some of that back and allows us to look into the actual creative imaginaries that are some of the foundations of law.” — Dan Jackson, Executive Director of the NuLawLab and event attendee

Evaluation and Next Steps

There are a few things that this team is working toward for the future. One upcoming task, as mentioned before, is to evaluate case briefing and its seven different dimensions for validity and sufficiency. According to Bhatnagar, the seven dimensions of case briefing really have no basis for existing or being taught other than that they happen to be what previous law student generations began using over the past century and a half of American legal education. The team suspects these dimensions cannot possibly capture the true complexity of certain types of cases, such as landmark cases that changed our view of the world. They remark that plenty of cases have been decided outside of the seven dimensions, and also that two cases might look similar based on those dimensions but may actually be very different. Therefore, it is worth taking note of how valid case briefing and its dimensions really are. While custom and status quo are important reasons for using these tools, this team believes they may keep law students from culminating their practice as lawyers.

Another step is to teach a course about mooting, which the team has since done at the Harvard University Graduate School of Design. A motivation for teaching this J-Term course, “Designing Speculations From Moot Courts,” with designer Phoebe Walton, was to ask whether design can demand more from the law in the context of the Ames Moot Court Competition. It is clear what design can offer the field of law, but what about the other way around? Bhatnagar states that American legal education may have foreclosed its graduates not only from learning what design is, but worse, from recognizing what they are already doing as designing. According to Bhatnagar, some design skills are already a part of legal practice, but there is also resistance to it in legal education. So this team emphasizes the importance of evaluating their work in terms that are recognizable to those in the law profession in order to meet the profession where it is.

“Can design demand more from the law?…Taking these elaborate hypothetical thought experiments that have been developed over a century…and showing that maybe it’s not just about who had the best written brief or oral argument, but who has the best design speculation.” — Sankalp Bhatnagar

The team has high hopes for the effects of the short-term and long-term integration of the legal and design fields. Short-term effects are already surfacing. Previous research assistants on this project who recently graduated law school have already reported back, saying that working with Bhatnagar on this project changed the way they look at law firms and what they do in the world. As for long-term effects, Bhatnagar hopes that this endeavor will encourage legal organizations considering legal design to note the existence of design already at work within legal thinking so that they can culminate it through legal practice as opposed to design thinking. They will not have to work so hard to justify themselves as designers, Bhatnagar suggests, because they will have taken hold of their own practices as lawyers and judges designing the world around us through law.

Suggested further reading from the research team:

• Mason, J. Researching Your Own Practice: The Discipline of Noticing. MIT Press (1997)
• Rakoff, T., Minow, M. “A Case for Another Case Method.” (2007)
• Spinosa, C., Flores, F., Dreyfus, H. Disclosing New Worlds: Entrepreneurship, Democratic Action, and Cultivation of Solidarity. MIT Press (1997)
• Willis, A. “Ontological Designing: Laying the Ground.” Design Philosophy Papers (2006)

Footnotes:

¹Kaszynska, P., Kimbell, L. & Bailey, J. (2022). Practice research in design: Towards a novel definition.
²Design Issues, Special Issue: The Rise of Legal Design (2021). https://direct.mit.edu/desi/issue/36/3
³Rakoff, T., Minow, M. “A Case for Another Case Method.” (2007)
⁴Willis, A. “Ontological Designing: Laying the Ground.” Design Philosophy Papers (2006)

CAMD Moderator

Michael Arnold Mages: Assistant Professor, Art + Design, College of Arts, Media and Design

Panelists

Sankalp Bhatnagar: Fellow, Center for Design, College of Arts, Media and Design & Senior Researcher, NuLawLab, School of Law at Northeastern University; Fellow, Library Innovation Lab, Harvard Law School & Affiliate, metaLAB, Harvard University Graduate School of Design

Elena Kuran: JD student with Graduate Certificate in Legal Design, School of Law, Northeastern University

Kelsey Cumiskey: JD student, School of Law, Northeastern University

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