Monday, July 25, 2011

Editorial: A Response to Bryan Garner

My co-blogger Jim Levy has posted here about an article in the New York Times by Bryan Garner, which was part of a series of articles concerning whether a third-year of law school is necessary.  While I think that Mr. Garner makes several good points, his article is incomplete, and, thus, it might be misleading to some readers.

He states: "The biggest failure at most law schools is the dearth of seriously good skills courses, especially training in legal writing."   What he neglects to say is that all law schools have a first-year legal writing program, which is usually staffed by highly-trained, dedicated teachers.

He also writes: "Law schools generally reward scholarship, not teaching excellence, and there is a built-in bias against one-on-one teacher-student time."   I agree that one-on-one teacher-student time is vital for students and that law schools need to provide much more one-on-one time.  However, he neglects to point out that one-on-one time is an important part of first-year legal writing.  Legal writing teachers generally spend much more time with their students than any other teacher in the law school.

He also declares:  "On top of that, lawyers of all kinds -- both academic lawyers and practicing ones -- rationalize their linguistic ineptitude by claiming that legal jargon is necessary (most of it isn’t); that writing instruction is elementary, remedial stuff (it should progress to advanced techniques); and that writing style doesn’t matter anyway."  Academic lawyers have not done this for many years.  The movement in law school legal writing programs is for clear writing, and this also applies to most other professors.  Moreover, my experience working for two large law firms for five years in the early 90s leads me to believe that most lawyers also want clear legal writing.

He concludes: "For starters, the second and third years of law school ought to include much more research, writing and editing, with three to six short papers required in each course. . .  Each paper should be subjected to rigorous editing, then rewritten and resubmitted."  I strongly agree with this comment.  Although most law schools require two advanced writing projects, these projects are generally in scholarly writing, and they often do not receive enough supervision.  If a student does not use his legal writing skills, they will atrophy.  However, I should note that most law schools have advanced skills offerings, including clinics,  and many require one advanced skills course.

In sum, I agree with Mr. Garner that law schools need to offer more writing opportunities and more skills courses to their students.  However, we cannot ignore what law schools are already doing and the many professionals who have brought about those changes and who are working for even more change.


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