This essay offers a perspective-shifting approach to meeting some of our pedagogical goals in law school: the study of re-imagined judicial decisions. Our thesis is that exposing students to “alternative judgments”—opinions that have been rewritten by authors who look at the law and the facts differently—will help students develop a more realistic and nuanced view of judicial decision-making: one that is aspirational and based in the real world, and one that allows them to envision their futures as successful advocates. The “alternative judgments” of the feminist judgments projects can enrich the law-school experience in multiple ways. First, seeing a written decision that differs from the original can help students think “outside the box” constructed by the original opinion by showing them a concrete example of another perspective written in judicial language. An alternative judgment tangibly illustrates for students that the original decision was not inevitable and that other perspectives are not only possible but legitimate. This method of introducing a new perspective is different and, we argue, more powerful than assigning a scholarly article that requires students to “transfer” scholarly language to judicial language. Second, the rewritten judgments show law’s potential to change and its ability to serve different accounts of justice. So many of our students come to law school wanting to “change the world” and become disheartened; alternative judgments can be an antidote to defeatism and cynicism.
Third, alternative judgments counter the narrative that law is objective while other arguments are political or biased. Simply by comparison with the original opinions, the alternative judgments demonstrate that judges, like other human beings, draw on what has been embedded in their intuitions and reasoning processes by culture and history as well as by their own backgrounds, experiences, and education. Fourth, feminist judgments provide tools for students to understand how persuasion and explanation are able to work effectively—in many different guises—even within the significant conventions and constraints of legal practice. Finally, but by no means least important, alternative feminist judgments are one of the only ways that “outsider” students—those whose perspectives have been historically erased or marginalized in law—can see themselves and their lived experiences reflected in the law.
Linda L. Berger, Kathryn M. Stanchi, and Bridget J. Crawford, Learning from Feminist Judgments: Lessons in Language and Advocacy, 98 Tex. L. Rev. Online 40 (2019), https://digitalcommons.pace.edu/lawfaculty/1145/