Litigation sits on a special pedestal in American culture and in the law school curriculum. Upon entry into law school, students often identify litigation as their career goal. In popular culture, the attorney protagonist is most commonly a courtroom lawyer, pacing the courtroom while delivering a searing cross examination. The majority of law school courses are taught using the casebook method, forcing students to learn through the lens of litigation. Not surprisingly, of course, many students come to believe that litigation is what lawyers do and that the adversarial system is not only one effective, but the most effective, method of dispute resolution.
But litigation does not answer many questions that clinicians pose to students in the practice of law. Using family law as a case study, this session will explore: How do we ensure our students see the risks of the adversarial system, not only as it relates to winning and losing but to broader issues of dignity subversion, institutional betrayal, or shame exposure, particularly for clients who may hold historically marginalized social identities? How do we help our students consider how state structuring of family life can be perpetuated within a litigation context? How might we move beyond litigation entirely, and consider: What is a lawyer’s role in creating community-based mediation opportunities for families to resolve disputes? What does it look like to promote racial justice in domestic relations law outside of litigation? What can be a lawyer’s role in restorative justice and transformative justice? How can alternative dispute resolution for marginalized families promote their dignity and autonomy? Repair harm from state involvement in family separation?