Wednesday, August 22, 2012

What Legal Writing Professors Have Contributed to the Academy

My last post concerned what contributions legal writing professors can make to legal education. This post involves what contributions legal writing professors have made to the academy, by focusing on the career of Marjorie Rombauer, a pioneer in legal writing education. My information comes from An Interview with Majorie Rombauer by Mary S. Lawrence, which originally appeared in the Journal of the Legal Writing Institute in 2003. This interview serves as a history of the early days of legal writing programs.

From the very beginning, Rombauer taught a rigorous course. Mary Lawrence declared:

"Her text Legal Problem Solving: Analysis, Research and Writing similarly broke new ground. With its emphasis on analysis and problem solving it demonstrated that legal writing instruction was more than mechanics and grammar. It proved that a legal writing program could be as academically demanding as any other law school course."

Rombauer has always believed that "we were not teaching legal writing, we were not teaching research, but we were teaching a process, the whole thinking process: " For example, she has stated, "you can't learn to do effective research by just finding an answer to a question somebody else gives you. You must learn the whole, integrated sequence of thinking and developing the question, and that is the process I think we should be teaching. When I was trying to sell this to the faculty they were saying,’We're teaching analysis in all of the classes.’ And I would say, ‘No, you're not. You are teaching how judges look at cases. We are teaching how lawyers look at cases.’" She has added: "I am teaching how a practicing attorney or a scholar—more a practicing attorney—works. In your classes, you start with the end result - the law. And you back up and try to build problems around it. I start with a problem and try to find, 'this is a possible solution, this is a possible solution, this is a possible solution.' And you do not—in most classes—talk about the mental process."

Rombauer’s role as a legal pioneer appears in a document she wrote early in her career,

DEFICIENCIES OF THE "CASE METHOD" IN DEVELOPING OPINION AND PROBLEM ANALYSIS SKILLS: HOW THESE DEFICIENCIES MAY BE OVERCOME IN THE LEGAL ANALYSIS COURSE" (Appendix B of the Lawrence interview). In this article she recognized the deficiencies in the "case method." First, "Rarely is an individual student led through use of a minimal progression of the skills (analysis of opinions, synthesis, application) to solve a single hypothetical problem." Second, "A course may produce understanding of opinions and other materials in an area of law without developing the basic skills for some students. (How many students rely on commercial or former students' briefs and syntheses and on what can be drawn from class discussion to acquire "knowledge" without really participating in the distillation process and even without appreciating that they have not participated in the most important part of the process?)" Third, "The necessity for dealing with uncomplicated factual patterns tends to cripple students in dealing with the type of un-patterned factual collections with which they must ultimately learn to deal; they learn to deal with absolutes rather than with probabilities or possibilities and with neat, complete (for purposes of a single issue) fact patterns rather than with inconsistent and incomplete fact collections." Fourth, "The subject matter and materials dictate what skills can be emphasized and when they can be emphasized." Finally, "The course compartmentalization tends to give students [an] unrealistic view—of tort problems, contract problems, property problems—rather than of "problems," which require dealing with many of the artificial subject compartments or with the overlapping areas of the artificial compartments." Remarkably, all of these criticisms still apply to the case method, which is the main method of doctrinal teaching today.

Marjorie Rombauer is just one of the pioneers that developed the field of legal writing and changed law school teaching. Law schools would not be the same without contributions from the legal writing faculty.

(Scott Fruehwald) (thanks to Sue Liemer for pointing out this article to me)

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