Giving up Grammar and Dumping Derrida: How to Make Legal Writing a Respected Part of the Law School Curriculum

• Author: Stewart Harris
• Position: A.B. Princeton University, Woodrow Wilson School of Public and International Affairs, J.D. University of Pennsylvania Law School
• Pages: 293-308

Those of us who teach practical writing courses will never get any respect unless we radically change the way we teach and write. Specifically, we should: (I) stop teaching basic grammar and writing skills, except by example; (2) stop coddling students with endless one-on-one conferences; (3) use oral commentary and standard models instead of providing written "feedback" on individual papers; and finally, in the time we gain by instituting the first three reforms, (4) concentrate on producing traditional legal scholarship, rather than publishing articles that attempt to make the teaching of Legal Writing a "scholarly" subject, or that serve as mere soapboxes from which to broadcast our discontent. If we take these four simple steps, we will reap immediate benefits in efficiency, efficacy, and job satisfaction. In the longer term, if we act more like traditional law professors, we may eventually find ourselves treated like traditional law professors, rather than mere professors of Legal Writing.

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I Introduction

I am a Legal Writing heretic. What you are about to read will win me no friends in the Legal Writing community, and would probably get me fired from most Legal Writing programs in the United States. So be it. The truth often hurts.

Like this truth: Legal Writing professors get no respect.

Or this one: they will never get any respect unless they radically change the way they teach and write.

Or especially this one: to have any hope of being accepted as equals in the legal academy, Legal Writing professors must stop acting like eighth-grade English teachers.

One of the first questions I ask the annual crop of lLs in my Civil Procedure class is, "What does 'Civil Procedure' mean"? They seem amazed to learn that "Civil Procedure" is a compound term, each part of which has a meaning that is relevant to their understanding of the subject.

Similarly, "Legal Writing" is a compound term. As its two parts indicate, there is a legal component and a writing component. In my experience, most Legal Writing professors fail to recognize this and concentrate disproportionately on writing. As a consequence, most first-year Legal Writing courses give relatively short shrift to legal analysis. The same is true of many upper-level courses, such as Appellate Advocacy or Legal Drafting, that emphasize practical writing.¹ As a result, these various writing classes often become what amounts to remedial English composition courses with relatively little attention given to teaching and learning the law.

Most professors of Legal Writing no doubt consider it necessary to emphasize composition, given the generally weak writing skills their students bring to law school. I do not. Indeed, I believe that Legal Writing courses neglect law for writing not so much out of need, but primarily because of the deeply flawed teaching methods that Legal Writing professors commonly use. If we eliminate the flawed methodology, we will eliminate the problem.

Accordingly, in this Article I advocate a radical reduction in the writing portion of Legal Writing courses through a fundamental restructuring of how we teach them. This restructuring will do several things. It will allow an increased emphasis on legal analysis in writing courses. It will significantly reduce the teaching load of Legal Writing professors. Finally, it will enhance the status of those of us who teach writing courses. For if Legal Writing teachers concentrate more onPage 294 teaching law and producing legitimate legal scholarship-in other words, if they act more like traditional law professors-they will no longer be square pegs trying to fit into the round holes of the legal academy. Eventually, they may even earn their rightful place among their peers.

II The Fundamental Realities of the Legal Academy

The most fundamental mission of any law school is to teach the law.² Many law schools define this mission very broadly, including in their curricula such antecedent or ancillary subjects as history, philosophy, and social science. But not even the most broad-minded of law faculties consider elementary English grammar or basic expository composition to be a legitimate part of their pedagogical bailiwicks. These subjects are properly (if rarely) mastered in college, high school, or even junior high school. Graduate students should have learned them long before entering graduate school. They are, therefore, not proper subjects for law faculties to teach. Nothing will change that fact. Therefore, Legal Writing professors who insist upon teaching basic grammar and composition will always be considered outsiders in the legal academy, and, like outsiders in almost any professional setting, they will be relegated to second-class status.

Another fundamental reality of law school life is that there is a pecking order among law professors, and it is based primarily upon perceptions of scholarly accomplishment. Professors who have written widely-used case books or treatises, professors who have become the pre-eminent experts in some area of law, no matter how tiny or esoteric, professors who sit on lotsPage 295 of important-sounding panels at important-sounding symposia are at the top of this pecking order. Professors who devote themselves to teaching win lots of awards and are denied tenure.

In the face of these stark realities, many Legal Writing professors have, dodo-like, proudly refused to adapt. They sit in faculty common rooms and vainly attempt to impress their "doctrinal" peers with complaints about how late they had to stay up the night before to finish commenting on student memoranda. Their scholarship often focuses not on law, but on how better to teach Legal Writing,³ and sometimes on how unfairly they are treated by their doctrinal colleagues.⁴

Obviously, the dodo approach is not working. If you have any doubts, try this simple experiment: march straight on down to your Dean's office, pound on the desk, and tell him or her that you are being treated unfairly, that Legal Writing is as important-nay, more important-than any other law school course, and that you demand equal treatment. Then go and clean out your desk.

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III How to Make Legal Writing a Respected Part of the Law School Curriculum

Since law schools stubbornly refuse to adapt to Legal Writing professors, Legal Writing professors, indeed all professors who teach courses with an emphasis on practical legal writing, must adapt to the realities of law schools. But how do you do it?

I submit that those of us who teach writing courses can adapt to the realities of the legal academy by fundamentally changing the way we teach and by shifting the focus of what we write. Specifically, we should: (1) stop teaching basic grammar and writing skills, except by example; (2) stop coddling students with endless one-on-one conferences; (3) use oral commentary and standard models instead of providing written "feedback" on individual papers; and finally, in the time we gain by instituting the first three reforms, (4) concentrate on producing traditional legal scholarship, rather than publishing articles that attempt to make the teaching of Legal Writing a "scholarly" subject, or that serve as mere soapboxes from which to broadcast our discontent.

These suggestions are heretical. They cut against the grain of what might be called the prevailing Legal Writing Martyrdom Mindset: the unstated but widely-shared belief that the more time we spend teaching, the better we teach. Balderdash. There is no nobility in suffering. There is nothing wrong with efficiency. Indeed, I submit that my proposals result not only in less time spent on teaching, but in better teaching. I discuss each in turn.

A Stop Teaching Basic Grammar and Writing Skills, Except by Example

At the beginning of this Article, I stated that we who teach writing classes should stop acting like eighth-grade English teachers. Let me be clear: I intend no disrespect to those who labor in the stony vineyards of nouns, adjectives, and adverbs. Their job is vitally important, and I respect them for doing it, often under very difficult circumstances. On the other hand, I stand by my statement. Compare these two passages, one taken from a popular Legal Writing text, the other from an eighth-grade English book. Before you look at the footnotes, see if you can tell which is which:

Passage 1:

A paragraph is a group of sentences dealing with one topic. You learned many years ago to recognize a paragraph because the first line is indented a few spaces from the left margin. Indentation is the visual signal that a new idea is about to be discussed. A well-written paragraph also has three internal characteristics: unity, coherence, and development. Unity means that only onePage 297 idea is discussed in the paragraph. Coherence means that the sentences are arranged logically and are connected by the use of transitions, pronouns, and the repetition of important words. Development means that enough specific information is given so that the idea is completely understandable.⁵

Passage 2:

Paragraphs exist for many reasons. First, they help writers organize what they are writing. Second, they help readers see and understand that organization. Third, they give readers a psychological, as well as a logical, break.

Writers need...