Sunday, January 10, 2010

Legal writing programs are pedagogical cancer? Really?

In a provocative essay, Professor Charles Rounds of Suffolk University Law School says the reason law students are ill prepared for practice these days is because, among other things:  1. concerns about students' self-esteem and grade inflation trump classroom rigor; and 2. traditional, core subjects have been replaced by the pet interests of law professors who serve up doses of "amateur sociology" rather than teach students about the law they'll need to practice.

With respect to legal writing and clinical programs, Professor Rounds has this to say:

In response to complaints from the practicing bar that recent law graduates cannot write well and are otherwise unable to “hit the ground running,” the typical law school has beefed up its in-house clinics and legal writing programs. These politicized bureaucracies behave like labor unions. They are great at self-promotion and forging national networks. They are labor-intensive and thus frightfully expensive.

At best, these programs are pedagogically inefficient; at worst they are pedagogically cancerous. By chipping away at, or crowding out altogether, traditional core courses such as Agency, Trusts, and Equity, these clinical and legal writing programs are more than just a nuisance. One’s writing improves when one has something rational and coherent to express. Ten writing courses will not help the law student who is unable to connect the dots because he or she does not know where the dots are.

While Professor Rounds is perhaps being intentionally provocative to make his points about the failure of legal education, I think he (and many others) misunderstands what we are doing in the legal writing classroom.  I agree with him that lots of writing instruction won't help students become better lawyers if they don't know the law or how to "connect the dots."  And while there's some disagreement about this within the field, my take on legal writing is that it's not about "writing" but instead about expressing legal analysis in writing.  What we're doing is teaching students how to read and understand a series of cases, synthesize them and then apply the principles that emerge to a fact pattern just as lawyers do in practice. 

For that reason, I've always thought that the typical 1L legal writing course has more ambitious goals than the typical 1L doctrinal course.  Indeed, I'm often afraid that the course is too difficult for most first semester students because they don't yet have a good enough grounding in the law to be able to do the kind of written analysis we demand.  Thus, part of the solution to better preparing students to practice law may lie with better coordination between doctrinal and legal writing faculty in the first year curriculum.  We can work together to give them the legal grounding they need, then teach them how to apply that law to the kinds of problems real clients face and, finally, do it in a form that meets professional expectations.

As far as Professor Rounds comment about the legal writing programs acting like "unions" (in the pejorative sense, I assume) - it's interesting because I recently heard a highly respected member of the legal writing community tell me that she's afraid our credibility may be suffering in some quarters because of that perception.  What do you think?  Are these isolated perceptions or is it more widespread?  Is it something to be concerned about or ignored?   Tell us what you think in the comment section below.

Hat tip to the Law School Innovation Blog.

I am the scholarship dude.


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Maybe one of the reasons that LRW faculty behave like "unions" or are perceived to behave that way is because of the employment security situation that exists at many law schools regarding LRW faculty?

Posted by: Mark DeForrest | Jan 10, 2010 9:12:11 PM

Excellent point, Mark. Thanks for sharing.

Posted by: Jim | Jan 10, 2010 10:54:18 PM

I once heard a dean of a law school (both dean and the school shall remain unnamed) describe his vigorous objection to the "trade unionist mentality" of a candidate for LRW Director that he had recently interviewed.... The irony in all this of course is that the vast majority of law school academics, deans included, are politically liberal and therefore should sympathize with the plight of a disenfranchised group.

Posted by: Ben Bratman | Jan 11, 2010 6:21:17 PM

Thanks for adding your thoughts, Ben.

Posted by: Jim | Jan 11, 2010 9:46:58 PM

My students tell me that they learn more about legal analysis in the writing program first year than in their doctrinal courses. I think this is one of the primary goals of first year writing classes. We teach not only how to express the analysis in writing, but how to do it in the first place. As far as the union mentality goes, perhaps if the rest of the academic community stopped treating the writing teachers as second-class citizens, there would be no need for this mindset.

Posted by: Martha Hochberger | Jan 13, 2010 4:49:11 AM

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