Paul L. Caron

Thursday, October 27, 2022

Meditations On Teaching What Isn't

Kris Franklin (New York Law School), Meditations on Teaching What Isn't, 66 N.Y.L. Sch. L. Rev. 47 (2022):

Lawyers reason from facts, but we also reason from absence.

The lack of something we might logically expect to be found, but has not been, may be highly and suggestively meaningful. In a culture infused with matters of race and not-infrequently affected by racism, what "is not there" will often be things that especially intersect with the lives of people of color.

This essay explores the teaching of absence as a form of logical thinking. In so doing, it surveys a wide array of examples in various core legal subjects that may point to the omission of diverse perspectives. The article provides law faculty and students with samples of ways to make more visible that which is currently not seen.

What I take from all of the foregoing is that reasoning from absence is important in law, and consequently important in law schools. We must teach our students to reason from absence, both in the sense of looking for what is not yet visible, and in the sense of making informed conjectures and conclusions when what is sought cannot be found. We need to know and be informed by the vast body of cultural knowledge (context) that has for too long been unseen by a legal system infused with unspoken white supremacy. We have to make it a priority to find the time to do the background research and educational work to make that inclusiveness commonplace and unremarkable

Whenever possible, we should strive to include that context to help enrich our students’ understanding of what law traditionally does and does not do. Audre Lorde teaches that “[o]ur visions begin with our desires.” We need to therefore show law students how to use their own knowledge and imaginations to envision what is not yet there in law but could be. Should be. Must be. Vision is a necessary precursor to making radical changes in the law, and in ourselves.

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