Monday, May 20, 2024

What Is Legal Writing Scholarship? Part I: A Definition

With the 40th anniversary of the first LWI conference coming up soon, it is a good point to review how legal writing scholarship has developed over the last 40 years and what it is today.  I shall do this over a series of posts on this blog.

Legal writing scholarship has been created by its practitioners.  Perhaps, it is best to define legal writing scholarship by its bibliography, and I will discuss bibliographies of legal writing scholarship in later posts.  I will began, however, by examining a recent (provisional) definition of legal writing scholarship. 

Professor Kirsten Davis has defined legal writing scholarship as,

"Legal writing scholarship" is inter- and cross-disciplinary scholarship that is communication-centered and law-connected.  It creates knowledge by offering new information or insights about the production of, reception of, and communication environments for texts that communicate about the law.  (here)

Let's trace how Professor Davis came to this definition to see if it is convincing.  She starts from rhetoric scholar James Boyd White’s definition of "law": "law is a species of 'art by which culture and community are established, maintained, and transformed [and] has justice as its ultimate subject.'"  From this definition, she proposes that "legal writing scholarship, like law, is communication-centered."  She adds, "The phrase 'legal writing' itself centers communication as the object of study in legal writing scholarship."

Professor Davis gets the other half of the main part of her definition from legal writing scholarship's domain--the law.  "That is, to fall within the definition, the scholarship must have some connection to the production, reception, circulation, or environments of legal texts."

We now have the main part of the definition: "Legal writing scholarship is scholarship that is 1) communication-centered and 2) law-connected."

She notes that "Because legal writing scholarship involves both communication and law, it is interdisciplinary—one must integrate knowledge of both the discipline of writing and the discipline of law to produce legal writing scholarship."  She also points out that "legal writing scholarship might also have the characteristics of cross-disciplinary scholarship; that is, legal writing scholarship views the discipline of 'law' from the perspective of the discipline of 'writing,' which itself is informed by research in other disciplines like rhetoric, composition, communication, and cognitive psychology." Notably,  "Because legal writing scholarship may draw from different disciplines, those who claim to write this scholarship have the added pressure of staying abreast of developments in disciplines other than their own to ensure that a true interdisciplinary conversation is being had amongst scholars."

This brings Professor Davis to a working definition of legal writing scholarship: "'Legal writing scholarship' is inter- and cross-disciplinary scholarship that is communication-centered and law-connected."

She then looks at the question more concretely: 

"Thinking a bit more concretely, we might ask what topics fit within this definition. I think the range is fairly wide.  A
nonexclusive list of topics might include scholarship about

• how legal and other readers consume legal texts.
• how judges, lawyers, and nonlawyers write about the law.
• how legal texts persuade, influence, or accomplish other
types of tasks.
• how different media (e.g., digital media) impact written
messages about the law.
• how cultural, community, and environmental factors impact
the production and reception of legal texts."

Finally, she adds the most important ingredient: ''to be scholarship, legal writing scholarship must create knowledge. In other words, writing about legal writing, to be scholarship, must provide readers with insights or information that is new."

Based on the above, I find Professor Davis's definition of legal writing scholarship to be one that we can use to delve further into the question of what is legal scholarship.

(Scott Fruehwald)

P.S. This is a work in progress.  Comments, corrections, and suggestions are welcome.

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