Learned Thursdays: Let go the idea that legal analysis involves neatly boxing information.

This post is from one of our new co-editors, Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School.  Look for new co-editors in the upcoming weeks

For seventy-five years, with the release of Snow White and the Seven Dwarves, Disney began categorizing its female characters as “princesses,” “fairies,” or “evil queens.” The Disney Princess Collection as a marketing endeavor has become ubiquitous enough in our American consciousness, that you might already know that Disney schedules character “coronations” for those female characters in the marketing set. In contrast, the Evil Queen collection sports powerful women with destructive magical capabilities. Disney Princesses have no magical powers of their own. Disney held fast to these categories until 2013, when it broke its own mold in the movie, Frozen, by introducing a powerful queen with destructive magic powers—who was also a protagonist. Per the 2014 ABC News piece, The Story of Frozen, Making a Disney Animated Classic, Disney fretted for seventy years about the screenplay of the Snow Queen story: the villain is a queen who can freeze anything in her path. The “evil queen” formula was abandoned when the songwriters charged with Queen Elsa’s solo song engaged in Peter Elbow’s methodological believing: a queen with destructive magical powers, kept or forced into isolation, might simply be misunderstood and still good at heart. Breaking the rigidity of their own categories earned Disney a billion dollars in the year following the movie’s release.

The idea of legal categories is spotlighted in for-practitioner scholarship by Professor Lucy Jewel, a woman whose very name evokes another good-but-magical literary queen adapted for the screen by Disney. Professor Jewel discussed the negatives that can happen in lawyering when categories become rigid boxes. Old-School Rhetoric and New-School Cognitive Science: The Enduring Power of Logocentric Categories, 13 Legal Comm. & Rhetoric: JALWD 39 (2016). Legal categories tend to form based on a classical rhetoric view of information: everything has a place grounded upon its “essence,” and the “essence” fits into a bivalent, and mutually exclusive concept of organization. Membership in a category, according to Aristotle’s principles, is a bivalent and exclusive process; belonging members versus not belonging members. Aristotle believed that we think in what Jewel calls “neat boxes.”

In modern day, however, cognitive scientists have visually mapped out how we think, when we think categorically. Dr. Eleanor Rosch’s work from the 1970’s[1] allowed people like Professor David F. Chavkin to write another wonderful article for lawyers, Fuzzy Thinking: A Borrowed Paradigm for Crisper Lawyering, 4 Clinical L. Rev. 163 (Fall 1997). Members of a set are situated differently within a fuzzier boundary, with stronger members of the set situated in the center, and weaker members situated near the fuzzy boundaries. A robin is a central member of the set “birds,” whereas an ostrich is situated closer to the boundaries.

Jewel does not suggest that categorization is always problematic. The West Key Number system very effectively uses categories to organize legal materials for practitioners. But, she counsels, categories can also lead to injustice through distortions. Boxed legal categories do not help practitioners think through legal problem-solving because we do not actually think in those crisp terms. When lawyers understand the actual way, we process and organize information, new possibilities arise in problem-solving. Being willing to challenge the assumptions of crisp, neat boxes, permits a lawyer to adapt and manipulate the categories as well as the sense of membership hierarchy within a set. Rejecting rigid categorization makes for better client representation. Jewel’s article outlines specific ways lawyers may engage in that kind of unpacking.

The article is worthwhile reading for any practitioner, as is watching her TED-style talk produced by LegalED. The topic alone is interesting, but Jewel’s prominence also adds credibility. The article was recently selected as the inaugural recipient of the Legal Writing Institute’s Phelps Award, chosen out of more than a dozen nominations. In a category of strong scholarship, hers is the exemplar.

*Thank you to my guest research assistant, S.E. Robbins.

 

[1] Eleanor Rosch, Cognitive Reference Points, 7 Cognitive Psychol. 532 (1975).