Tuesday, January 10, 2012

Price on IRAC: A Critique

Probably the strongest attack on IRAC (the small-scale paradigm) comes from Jessica E. Price (Slavin) (Imagining the Law-Trained Reader: The Faulty Description of Audience in Legal Writing Textbooks, 16 Widener L.J. 983 (2007)) (here).

Understanding Price’s attack on IRAC must begin with an examination of the main theme of her article–that legal writing textbooks (mainly Edwards; Neumann;and Shapo, Walter, and Fajans) present the legal audience as monolithic. She writes, "Specifically these textbooks offer surprisingly consistent messages about lawyers’ personalities, namely, that most lawyers are extraordinarily impatient with other people (even in their thinking and reasoning processes), aggressively critical, and conservative and formalistic in outlook." She believes that such unquestioning generalizations undermine law students’ ability to bring their individual voices into the law. She then declares, "I propose that instead of admonishing students that they should write more clearly and concisely because they share the traits of extraordinary impatience, aggressive criticism, and knee-jerk-formalism, legal writing teachers should engage students in specific, realistic, and critical thinking about the varied and changing audience for legal writing."

Price charges that legal writing teachers rely on their personal knowledge for what legal audiences are like and that legal writing teachers’ claim to authority is suspect. She bases the so-called generalization of audience by legal writing teachers as being caused by their insecurity, citing an article from the early 1990s. She continues, "My intention in this paper is to criticize legal writing education that presents students with an over-generalized image of the law trained-reader, without encouraging students to reflect about that image." Concerning the stereotypical audience traits mentioned above, she writes, "I cannot help but wonder if these characteristics are more accurate descriptions of the members of the legal writing teachers’ community than of law-trained readers in general. . . . And when I image the stereotypical legal writing teacher, I image some harried, red-pen-toting, grammar-loving soul like myself." She also criticizes legal writing teachers for being strict about form and format, including grammar.

Most importantly for this post, Price attacks legal writing textbooks for their rigid adherence to a small-scale paradigm. She declares, "many first-year writing textbooks instruct students to adopt an extremely formulaic approach to organizing writing about legal problems." She also criticizes these books for using the small-scale paradigm not only as an organizational tool but as an embodiment of the process of legal analysis.

Toward the end of the article, Price gets to her real argument–that legal writing teachers and textbooks are muting "the voices of groups traditionally underrepresented in the law." She thinks that there is no reason that lawyers can’t use a human voice to communicate their legal arguments. She also believes that "there is also a place in law practice for patience, consensus, and pragmatism." Price wants legal writing classes to produce "self-reflective insiders." She also wants legal writing teachers to assign rhetorical readings of mainstream texts (Supreme Court opinions) and to introduce "critical" texts. In sum, she wants us to acknowledge "identity dissonance."

My first criticism of Price’s article is that she tries to make legal writing textbooks appear more rigid than they are; she uses exaggeration to create a straw man. None of the legal textbooks states that legal writing has a monolithic audience. On the other hand, most of the textbooks stress the need to understand the audience. For example, Edwards states, "This need to know to whom we speak is more than a helpful tool; it is a fundamental part of the project of communication." Later she writes, "The general characteristics of law-trained readers in this and later chapters can only invite you to begin your study of readers. Don’t just accept the principles that follow.. . . Observe too the other law-trained readers you know. This way, as the years of legal practice go by, your writing will get better and better." Price also contends that legal writing teachers write about audience this way because they base their ideas on personal knowledge and they are insecure. However, legal writing teachers attend numerous conferences where we go to presentations on innovative teaching and discuss our ideas, we have listserves where we discuss our ideas, we read legal writing scholarship, and we even have friends outside of the legal writing profession. Similarly, while legal writing teachers might have been insecure in the early 90s, things have changed considerably over the last twenty years.

While most of the textbooks state that the usual audience for legal writing is judges and lawyers, almost all these textbooks teach about writing for other types of audiences, particularly client letters. Concerning the audience for client letters, Shapo points out that "the audience for letters is varied and diverse. . . . You must analyze your reader in detail."

Price criticizes legal writing texts for characterizing lawyers and judges as busy and impatient. How can one not characterize judges and lawyers as busy? There is a mountain of evidence supporting this; one can’t deny reality. (However, I don’t see anything in these texts that says that lawyers and judges are busier than other professionals, as Price charges.) In addition, Price has exaggerated the impatience critique. It is not so much that the texts are saying that lawyers and judges are impatient, rather they are saying that clarity is required to communicate with the reader. Judges and lawyers have a limited amount of time. It is the writer’s responsibility to communicate to the reader. Again, this is only stating reality.

Price declares that the second characteristic of the text’s monolithic audience is "aggressive scepticism." Price is right that the texts state that most audiences have this characteristic, but she misunderstands its details. This aggressive scepticism is not aimed at formal structures and the niceties of grammar, but at the substance of the arguments. Much of our legal system is an adversarial system so, of course, judges and lawyers look to gaps in analysis and distortions of reasoning. On the other hand, judges and lawyers do not consciously look at the formal aspects of legal writing. However, as stated in the previous paragraph, they do need clarity in order to understand what the writer has said. "Road maps" and small-scale paradigms help provide clarity.

Price also asserts that this aggressive scepticism applies to grammar errors. Most of us do not spend a lot of time in our classes on grammar, but with some students we have to work on grammar. It is a fact of life that many people think that those who make grammar or bluebooking mistakes are sloppy reasoners. To ignore that some readers will do this is to ignore the actual audience.

It is in her critique of the small-scale paradigm as rigid and formalistic that Price misses the mark the most. The legal writing textbooks regard the small-scale paradigm as part of the writing process, not as a rigid formula. For example, Edwards writes, "Legal writing is a process with distinct goals at each stage." These authors treat the small-scale paradigm as a set of principles, not a rigid formula. In addition, the texts acknowledge that there are instances when the writer should depart from the paradigm. Edwards writes, "First, master the basic substantive and organizational principles covered in this course. Soon you will know when and how you can depart from them." Similarly, Neumann discusses when writers can vary the paradigm, and all the texts have a section on the different types of legal arguments.

These texts treat the small-scale paradigm as part of the analytical process. Neumann observes, "Students learn legal reasoning and legal writing better when the two are taught together than when they are taught separately." Similarly, Edwards writes, "Your primary purpose in writing a working draft is to use the process as your own analytical tool."

Price criticizes the texts for embodying the process of legal analysis. While she is correct that they do this, she is wrong that it is bad. How better to present a legal argument clearly than to adopt an organization that reflects legal analysis? Legal organization should reflect the legal reasoning process. Law is not politics, legislative policy-making, or administrative policy-making.

As stated above, the purpose of Price’s critique is to argue that the legal texts suppress the voices of underrepresented groups. This is a postmodern/CLS critique. One of the central principles of this approach is that human behavior is malleable–minds are blank slates for society to write upon (Standard Social Science Model). However, this model of human behavior has been thoroughly debunked. As Dean Chen stated in 1995, "we stand on the brink of a century whose principle intellectual project may consist of overthrowing the Standard Social Science Model. . ." (See also Steven Pinker, The Blank Slateand Edwin Scott Fruehwald, Law and Human Behavior, Chapter 3). We are not socially-constructing our students in legal writing classes. While I do not agree that we should be teaching critical techniques of the CLS school to our students, I do agree that we need to develop reflective readers and that there are other aspects of law than the adversarial part.

I also challenge Price’s contention that the small-scale paradigm is not a proper method for helping the underrepresented. (Like most CLS critiques, Price fails to offer concrete alternatives.) Radical ideas can be presented in well-organized frames. Remember that much of the civil rights revolution used standard legal methods. The main purpose of the small-scale paradigm is to communicate clearly to the reader–to make writing understandable. Is it better to present legal arguments in a poorly organized form? How does this help the oppressed?

While legal writing requires legal structures, legal writing can also articulate the human voice. Many legal writing teachers stress the narrative; there are even yearly story-telling conferences. I stress in my teaching of persuasive writing that the writer is telling a story–the client’s story. Edwards observes that legal writing requires both the linear and narrative modes. She says that legal writing classes concentrate on the linear mode because students are more familiar with the narrative mode.

In sum, I strongly disagree with Price’s critique of the small-scale paradigm. Instead of viewing it as a means of oppression, I view it as a way to clearly communicate to readers, and this applies to those who are representing the poor and oppressed. Unlike Price who views herself as "some harried, red-pen-toting, grammar-loving soul," I view myself as someone who teaches legal analysis and how to communicate that legal analysis to a reader, regardless of the substance of that analysis. I suspect most of my legal writing colleagues agree.

(Scott Fruehwald)

http://lawprofessors.typepad.com/legal_skills/2012/01/price-on-irac-a-critique.html

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