Monday, April 2, 2018

Why Legal Writing is 'Doctrinal' and More Importantly Profound by Harold Anthony Lloyd

Why Legal Writing is 'Doctrinal' and More Importantly Profound by Harold Anthony Lloyd

"So long as we must use the questionable term “doctrinal” when referring to law school courses, this article challenges everyone (including law professors who teach legal writing) to stop directly and indirectly referring to legal writing as a “non-doctrinal” course. Use of “non-doctrinal” can be code for “lesser” thereby suggesting that legal writing has lesser import than other law school courses. Erroneously so marking legal writing as “lesser” damages legal education across the board. It damages students and law professors not teaching legal writing by suggesting that legal writing and the theory, skills and insights taught by legal writing merit less of their time which in turn increases the odds that both students and other faculty will remain ignorant of the critical knowledge and skills that legal writing teaches. It also damages law professors teaching legal writing because it invites disparate treatment such as lack of tenure, lower pay, and lack of equal respect. As a result, law professors teaching legal writing encounter greater difficulties in publishing scholarship, difficulties which deprive us all of the scholarship so silenced or deterred. Such erroneous code also ignores the profound subject matters addressed in legal writing courses today, a number of which subject matters are briefly surveyed in this article. Such erroneous code further ignores fundamental principles of semantics and fundamental insights of modern cognitive psychology embraced by legal writing courses today. In addition to examining the foregoing, this article also explores why the term “doctrinal” should be replaced with such terms and phrases as “meaningful” when referring to courses and “proper subject matter” when referring to course content."

I agree with Professor Lloyd that law schools should eliminate the distinction between doctrinal and non-doctrinal courses.  On my first day of law school, we were told that we would be taught to "think like a lawyer."  Law schools still talk about teaching their students how to think like a lawyer. So, teaching students how to think like a lawyer must be the most important thing that law schools do.

What class does a better job of teaching students how to think like a lawyer: legal writing or the so-called doctrinal courses?  Legal writing teaches students how to use knowledge in practice.   Lawyers need more than knowledge; they need to know how to use that knowledge.  Legal writing teaches the components of legal reasoning better than the Socratic method does.  It teaches students how to use their legal reasoning skills in memos and briefs.  In sum, which type of course better develops students' critical reasoning skills and intellect?

(Scott Fruehwald)

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I understand what you mean, Scott. But some of us use "doctrinal" descriptively in a different sense (e.g., for me, to describe a course in which the core learning objective for the students is familiarity or mastery of the legal rules governing a particular subject matter area). So, I would describe my Business Associations course as doctrinal. But my Corporate Finance course is not doctrinal, imv. Corporate finance is a label for a practice area, not for a separate identifiable body of law. The course involves legal analysis using doctrine from a variety of areas, But I would not call it a doctrinal course.

Does that make any sense to you?

Just my thoughts.

Posted by: joanheminway | Apr 4, 2018 6:35:08 PM

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