Auchmuty, R --- "Using feminist judgments in the property law classroom" [2013] LegEdDig 5; (2013) 21(1) Legal Education Digest 17

• Using feminist judgments in the property law classroom

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Using feminist judgments in the property law classroom

R Auchmuty

The Law Teacher, Vol 46, No.3, 2012, pp 227-238

Many of our students think feminism is a private matter, like religion, sexuality, or party politics: any mention of these is regarded as proselytising, out of place in the objective lecture theatre. They tell us in their module feedback that we should keep our feminism separate from our professional role. They would rather we restricted ourselves to teaching ‘the law’; real law-teaching, in their view, has no critical gloss.

Why do they think this? Our students, sadly, are victims of an education in which textbooks still routinely use ‘he’ to mean ‘he or she’ and then ignore women’s different experience of the law. Feminist legal scholarship is accepted now – encouraged, even, for its contribution to institutional research ratings – but it is still far from mainstream and, in particular, it has scarcely had an impact on textbooks. Mainstream legal scholarship rolls on with very little reference to or acknowledgement of feminist ideas. Most students don’t understand that the mainstream accounts are just as partial as our critiques, representing a particular perspective and set of values: one based in patriarchal scholarship, where history is presented from the perspective of the ruling class, and only men’s achievements matter. We can point this out to them, we can refer them to critical articles by eminent scholars in respected journals, but textbooks enjoy an inflated position in the eyes of anxious students. Not only are such students unlikely to prefer the judgement of their teacher to that of the distinguished author of the published text, they really don’t want to know that that sacred text might be compromised in any way. How can they learn the truth about law if knowledge itself is contingent?

It is no wonder then that so many of our students view feminist scholarship as special pleading and irrelevant to the real business of law. One way forward is to go back to basics: let the subject matter speak for itself, not through the textbook, not through the lecture handouts, but through studying the development of the law itself by reading the primary sources, especially the cases. There are three essential ingredients to such a study: choosing a topic that lends itself to feminist analysis; adopting an approach (historical and contextual) that lays bare the tremendous shifts in ideas about gender and equality over the past half-century; and employing a methodology that requires students to read cases in full and so come to see for themselves where the inequalities and injustices have lain. Finally, the whole exercise must occupy a central, not peripheral, place in the module. It may be a major piece of assessed coursework. It may be the entire module.

In attempting to bring a feminist perspective to legal studies, I have always seen the Feminist Judgments book as an ally and an aid. The fact that a book of feminist judgments was the first such critical endeavour, published by a mainstream publisher to apparent judicial approval, should help to persuade doubting students of the acceptability of feminist input in legal studies. At a more general level, it should open them to the idea that our laws and the ways they are interpreted and applied are (still) not neutral and objective and that they may, indeed, reflect the views and standpoint of the law-makers themselves.

I have successfully used my own feminist judgment on Royal Bank of Scotland plc v Etridge (No. 2) [2001] UKHL 44 on an optional gender and law module. One seminar focused on gender and property and I asked the students, all of whom had studied land law the previous year (so should have been familiar with the relevant substantive issue, undue influence in mortgage law), to read and compare Lord Nicholls’s judgment in the case with the feminist judgment, and to note and account for the differences in the context of their earlier grounding in feminist theories and British social history. I set a dozen questions for guidance, and we discussed students’ prepared answers in class.

Gender and law is an optional module of 25 self-selecting students; in the property law modules, by contrast, we have a diverse body of 200 students who have to take the subject whether they want to or not, and who will certainly include some who (as we have seen) regard feminism as an irrelevant distraction from serious legal study.

So in planning my attempt to bring feminism into property law I made two further decisions. The first was that I would ask the students to write an alternative judgment as part of their assessment. It followed from this that, second, I would use Feminist Judgments not for its specific examples but as a primer in the art of non-judicial judgment-writing and a collection of models of alternative judgments for the students to study and emulate.

Most law teachers are keen for their students to read cases, but the reality is that many do not, or do not read very many.

The reason is not far to seek. The arrival on the market of new kinds of textbooks and learning resources has made it increasingly possible for students to progress through an undergraduate law programme with very little need to do any research beyond the textbook and its associated websites. This genre of textbook consists of an outline of current legal principles (no space is wasted on history) interspersed with summaries of relevant cases, typically in little boxes outlined in a different colour or in a different typeface from the rest of the text, presumably to catch the notice of readers with a short attention span. In addition, the book may take students through problem questions and, if that were not enough guidance, refer them to websites offering multiple-choice questions and model answers. As gesture to academic scholarship, there are sometimes suggestions for further reading, but these are often the only indication that there might be any critical debate about the content of law.

The effects of this new kind of pedagogical tool are far-reaching. For many students, the textbook has become their sole resource. They don’t bother to read cases or statutes; they think they don’t need to. It’s no wonder these students find it hard to grasp the reasoning behind a given judgment, to imagine the possibility of a different response to the same set of facts, or to distinguish a case on its facts – because the facts they read in the summary are often so brief and diluted as to mask all essential distinctions. It’s no wonder they remain unaware of dissenting judgments, lines of reasoning that have been abandoned (and why) and alternative (often better) reform proposals that have never been enacted (and why), and that they fail to appreciate the complex negotiation of facts and law that goes into a routine decision, let alone a landmark one. They do their subject searches on Google, not on legal databases; some have never been inside the university library.

In so doing, those students learn an attenuated – not to say dull – version of law, lacking context, controversy, critique or, often, sense – partly because the summaries are often so brief as to be difficult to follow, partly because it is only in tracing the development of the law in its social and historical context that a subject like property law makes sense. Those bare boxed case summaries make positivists of our students – the law is simply there, in condensed form, and all they have to do is to learn and apply it to reach the right result.

You can exhort students to read cases till the cows come home but unless you directly assess their reading some of them will still choose to ignore you and rely on the textbook or some form of case summary. So, to avoid this, you ask them questions in an exam about specific cases or you set them a judgment to analyse as a coursework task. Or you get them to write a judgment on a case they have read.

This unusual form of coursework may, of course, be controversial. They may doubt the suitability of the exercise, or even of coursework generally, in assessing a core module. After we introduced a coursework element into the land law module, the pass rate shot up, and we even had a few first-class papers. More to the point, students seemed to grasp land law better, and even to enjoy it.

At any rate, when we came to redesigning the second year of our LLB, there was less resistance to my taking innovation further and proposing a module in which not only the assessments but also the methods of delivery were non-traditional. I was able to do this because, for practical reasons, we were obliged to transform what had been two 30-credit modules in land law and equity and trusts into three property law modules of 20 credits each. We decided on a format of one devoted to land law, one to equity and trusts, and a third, called the Property Law Project, that combined elements of both. The new Level 5 module would be taken by all law undergraduates and would focus on the intersection of land law and equity and trusts in the area of co-ownership. It would be assessed by a combination of coursework activities, one of which would be the production of an alternative judgment for a selected case. This was my opportunity.

The aim of the new module (which will run for the first time in the 2012–13 academic year) is to ensure that students understand not only the current rules governing co-ownership disputes in England and Wales but also the way that the law has developed. Through tracing this development they will be introduced to the various legal and equitable devices employed at different times to resolve the problems thrown up by co-ownership – the statutory regimes, resulting trust, constructive trust, proprietary estoppel and so on – which in turn should help them understand how we have reached the present complicated state of the law. Much of this development has taken place by means of judicial creativity in case law so the students will be required not only to read and analyse a range of relevant cases but also to trace their development through case law using appropriate research tools. In the meantime they will be learning, in context, the principles of whole range of relevant property law doctrines.

There are many forms of Problem Based Learning (PBL), but the general underlying principle is that students should learn through working out the issues in a problem and researching them for themselves, rather than being told the law and shown how to apply it. In this module, then, students will be given a detailed problem at the start that aims to encompass most of the current law of co-ownership, both express and implied. By the end of the module they will have reasoned out all the legal issues, and their written advice will form part of the final assessment.

For background and context to the module’s subject matter, and by way of introduction to each legal device, there will be some lectures, but only 10 of them; these will be filmed and made available on the Blackboard site. Handouts will refer students to relevant chapters in textbooks and other written sources so that they can research the detailed rules in their own time.

Cases will play a central role in the learning process. Each case will be chosen to demonstrate a particular legal device in action. Where in the past students could skip the actual case-reading, secure in the knowledge that they really only needed to know which case was authority for which principle, in this module they have an incentive for sticking to the task. Guidance questions will refer them not only to points of law but to technical points of judgment-writing: the ways judges address and refer to each other, how they deal with facts and law, matters they must consider in coming to a decision. So in the process of reading so many cases in their social and historical context the students will learn about the mechanics and conventions of judgment-writing as preparation for the judgment they will write themselves. Feedback on students’ preparation will be offered through online feedback, both self-marking and generic, and in a group tutorial.

The format of the written judgment is simple. To the facts of the case, each student must apply current law (whatever that happens to be at the time: it is still developing) as if the facts were themselves current. We recognise that this is an artificial exercise, in more ways than one, for the facts of old cases are themselves historically specific. People live differently now from the ways they lived 30 or 40 years ago, and this is particularly true of gender relations. \

As the editors of Feminist Judgments point out, writing a judgment offers an opportunity to undertake a practical, ‘real-world’ exercise in a different format from the usual forms of legal scholarship. When applied to student work, it tests many of the same skills as conventional essays and legal opinions, in that writers must acquaint themselves with the relevant precedents as well as the context and background of the case, and then apply the correct law to the facts. But because judgment-writing follows different technical rules from essays or legal analyses, it obliges them to take a much closer look at case reports and to focus particularly on the ways judges try to balance finding the right result for the parties and the impact that that result might have on the wider community, as well as on the law itself. Students can be assisted by the invaluable survey in the introductory chapters to Feminist Judgments of the methodological rules of judgment-writing and the stylistic conventions, many of which have of course changed across the period covered by the module content (and their attention will be drawn to these shifts in practice). They will be able to draw up their own style sheets to guide them in the subsequent writing of their own judgment.

The time lag between the facts of the original case and the students’ attempt at a contemporary judgment provides an opportunity to discuss the significance of context in judgment-writing. But how much social context should they include? Real judges, they will have observed, seldom employ sociological material in their decisions. There is nothing to stop them from citing policy documents or parliamentary debates or statistics or even critical scholarship, but these sources are not regarded as authoritative in law in the sense that cases and legislation are. And yet they are often crucial to feminist arguments about the reality of women’s situation, so often misrepresented in or absent from co-ownership case law.

The presentation of facts is another matter that merits thought. Students may never have considered how much turns on how facts are presented. (A separate issue is that of which facts have been gathered and selected for the legal arguments, but as judgment-writers we can do nothing about facts which, though potentially significant, might have been overlooked or discarded by counsel or judge. We can only work with what we have, and what is surprising is how different stories put together from the same facts can be.) In the real cases students read we can ask them to consider how particular facts are marshalled into highly selective narratives.

We can also ask them to note how these narratives are so often helped along by persuader language, sweeping generalisations and prejudice masquerading as common sense. The convention that judgments do not use footnotes has allowed judges to make unevidenced assertions in support of their decisions that are the antithesis of careful scholarly work. Should we be encouraging our student judgment-writers to do the same? Students may relish the freedom from worrying about plagiarism – I know I did! – but, as serious scholars, we cannot allow this power to present opinion as fact and dogma as truth to license a descent to the level we so often observe in real judgments. Writing my own feminist judgment, I could not in all honesty say ‘We all know that husbands can’t be trusted’, even if the undue influence case law might lead one to that conclusion, and even though such a statement simply parallels what many male judges have said about women’s nature and behaviour. Our generalisations must instead be of the kind that could be referenced, if footnotes were required. Thus, when I described Mrs Etridge’s life (about which I knew only what the case reports told me), I simply generalised from what I knew about the lives of women of her class and background in her time, gleaned from wide reading of primary sources and my own experience. My portrayal may not have fitted her life in all (or any) of its particulars, but it was certainly true of many women’s, and offered a perspective lacking in the judgments in the real case.

By incorporating the skill of judgment-writing into an assessment in a new property law module, with Feminist Judgments as a model, I hope to achieve several pedagogical goals at once: to diversify assessment forms on an LLB programme dominated by exams; to expose students to some radical ideas and socio-legal input in a context that makes these central rather than peripheral to their studies; to get all of my students to read cases (and thus to wean them off excessive dependence on the textbook); and to use case law as a vehicle for learning legal rules and problem-solving techniques. In learning to craft their own judgments, I hope that students will acquire a skill that will serve them well in their future studies and (should they proceed to a legal career) as lawyers – even, one day, judges.

In having to write their own judgment on a case with suitable facts, in the area of co-ownership where the gender issues can hardly be dodged, students will be getting a feminist education. Or so I hope.