Sunday, September 15, 2013
There has always been a lot of difficulty concerning what to call legal writing. Is it a skills course, a non-doctrinal course, a lawyering course, etc. Professor Linda H. Edwards deals with this problem in Legal Writing: A Doctrinal Course.
Legal writing instruction in American law schools has come a long way. Although scattered experiential courses and co-curricular activities have existed since legal education moved into a university setting, the modern era of skills education began in the 1950s and 1960s, with the creation of live-client clinics at many law schools. Early legal writing programs soon followed, moving into the main stream of curricular reform during the 1980s and 1990s. As these new courses and new instructors moved into the academy, the language of legal education naturally changed. Law faculties found themselves wanting to describe these new additions to the curriculum and the new teachers hired to teach them. For law faculties, the need for new language arose from the presumed need to distinguish their own “traditional” courses from these new offerings and to distinguish themselves from these new teachers.
To refer to courses like legal writing, clinics, client counseling, negotiations, externships, and trial practice, law faculties used terms like “skills” courses, “experiential” courses, “lawyering” courses, or “practice” courses. Sometimes courses in the other category – that is, courses like contracts, torts, tax, wills, and civil procedure – were described as “traditional” or “regular,” but before long, the most commonly used term was “substantive.” As the years went by, however, some law faculties learned more about the content of skills courses and came to a greater respect for both the courses and the teachers. Today the term “substantive” is heard less often in discussions of law school curricula, largely because describing non-skills courses as “substantive” incorrectly implies that skills courses have little substance.
A number of newer terms have arisen to replace the word “substantive,” but perhaps the most common is “doctrinal.” Is “doctrinal” a better option? This paper explores the meaning of the term and finds that legal writing does, indeed, have its own doctrine. The paper therefore suggests avoiding the term “doctrinal” when it is used to distinguish legal writing from other courses. It also explores how the story of legal writing’s creation has limited early views of legal writing’s doctrine and makes some suggestions for addressing those limitations as the discipline matures.