Teaching Legal Writing After a Thirty-Year Respite: No Country for Old Men?

• Author: John A. Lynch, Jr.
• Position: Professor of Law at the University of Baltimore School of Law
• Pages: 1-18

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TEACHING LEGAL WRITING AFTER A THIRTY-YEAR RESPITE: NO COUNTRY FOR OLD MEN?

JOHN A. LYNCH, JR.^*

“[T]oo often, but for understandable reasons,
legal writing has become the stepchild of the curriculum, unwanted, starved, and neglected. But, also like a stepchild, it cannot be abandoned or people will talk.”¹

I. INTRODUCTION

All in all, my law school has been a fairly benevolent step-parent. When I joined the faculty at The University of Baltimore three decades ago, legal writing was generally taught by junior tenure-track faculty. I expected to do so for years, but after only one year, I had to plug another hole in the curriculum.

Not long thereafter, our faculty shifted the burden of teaching writing to inexpensive adjuncts, albeit under the supervision of a tenure-track director. A few years ago, our former dean proposed to raise a substantial amount of money to hire a large number of legal writing experts for “Writing Across the Curriculum,” the ne plus ultra of writing programs.²

In pursuit of that objective, we hired several experienced tenure-track legal writing faculty who taught it in connection with substantive courses.

But deans change, budgets and priorities change, and our hiring of legal writing faculty ended up a few fries short of a Happy Meal. We were left without enough writing teachers to teach reasonably-sized sections.

What to do? I was somewhat surprised to receive an e-mail from my associate dean in the fall of 2007 asking me what I thought of combining civil procedure, a course I had taught for many years, with legal writing.³I

Copyright © 2009, John A. Lynch, Jr.

* John A. Lynch, Jr. is a Professor of Law at the University of Baltimore School of Law.

¹Stewart Macaulay & Henry G. Manne, A Low-Cost Legal Writing Program—the Wisconsin Legal Experience, 11 J. LEGAL EDUC. 387, 389 (1959).

²This approach was described in detail in Susan E. Thrower, Teaching Legal Writing Through Subject Matter Specialties: A Reconception of Writing Across the Curriculum, 13 LEGAL WRITING 3, 3 (2007).

³This, I later learned, was not a novel idea. See Douglas E. Abrams, Integrating Legal Writing into Civil Procedure, 24 CONN. L. REV. 813, 816 (1992); Joseph W. Glannon et al.,

(continued)

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replied, I think much to her surprise, that I thought teaching such a course would be great fun.

I suspect many of my colleagues thought that, somehow, the law school administration had the goods on me and had made me an offer I could not refuse. Although my dean expressed his appreciation, he then joked (I hope!) that if everyone thought this assignment was caused by my taunting about the playoff miseries of his beloved New York Yankees, that was fine with him.

I didn’t have anything to worry about, did I? Little did I know how much teaching legal writing changed in the intervening decades since I last taught it; how the cast of characters had changed; how the improvements in working conditions of legal educators that I had enjoyed had so largely eluded teachers of legal writing; and yet, notwithstanding all those unnerving discoveries, how much fun I would have teaching legal writing again.

II. AFTER ALL, “LEGAL WRITING IS NOT ROCKET SCIENCE” ⁴

At least it did not seem like rocket science when I taught it long ago as a teaching fellow at another law school. At that time, I did not have any particular qualifications or training, but I had over ninety students—two memos and oral arguments for all. The whole thing was in sync with the times—a Ford not a Lincoln.⁵

But now, as my law school hired legal writing faculty, the candidates were presented to us as specially trained, experienced practitioners of this

Coordinating Civil Procedure with Legal Research and Writing: A Field Experiment, 47 J. LEGAL EDUC. 246, 246 (1997).

⁴Stewart Harris, Giving Up Grammar and Dumping Derrida: How to Make Legal Writing a Respected Part of the Law School Curriculum, 33 CAP. U. L. REV. 291, 305 (2004).

⁵Watergate junkies will recognize this as President Gerald Ford’s reassurance to a scandal-weary nation when he assumed the Presidency that he had a more modest conception of the office than his predecessor. DOUGLAS BRINKLEY, GERALD R. FORD 63–65

(2007). At that time, law schools were generally interested in the more modest, meaning cheaper, models of legal writing instruction. While a substantial majority of law schools now employ full-time faculty to teach legal writing, cheap and dirty is nevertheless alive and well. A considerable number of schools rely on adjunct faculty and a handful even employ students. Susan P. Liemer & Jan M. Levine, Legal Research and Writing: What the Schools Are Doing, and Who Is Doing the Teaching (Three Years Later), 9 SCRIBES J.

LEGAL WRITING 113, 120 (2003–2004). The use of students raises the question whether the teachers ever learn from teachers.

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new art of teaching writing. Did I really have that much to learn? Oh yes, said our legal writing co-director; I was encouraged to attend the biennial conference of the Legal Writing Institute in Indianapolis in July 2008.

Oh great, I thought, teach legal writing and see the world! But this crowd was there to work—no excursions to the “Indiana wine country.” This was a law professors’ conference different from any other I had ever attended. The focus of most sessions was on methodology rather than substance. And there were some quirky subjects: naked grading,⁶the use of intensifiers in judicial opinions, and a skit on how to use humor to facilitate learning.⁷

The atmosphere at this conference exuded a small-town feeling, a remarkable camaraderie among the participants. Yet, I was not entirely a part of that spirit, not simply because I was new, but because I was an “other” in this world. I was a life-long doctrinal teacher. However, I always thought of myself simply as a law professor. I was never aware that legal education makes distinctions among types of law professors, but it does, and they matter.⁸

⁶Happily, it entailed nothing remotely running afoul of Title IX, of the Educational Amendments of 1972, or 20 U.S.C. § 1681 (2006). It is simply grading in real time in the presence of the gradee!

⁷This is definitely not on the agenda when tax professors get together. The skit was very funny and, so too (though perhaps unintentionally), the notion that humor may be induced by encouragement.

⁸The strong sense that I was in another pedagogical world is apparently not a figment of my imagination. Some legal writing scholars have commented upon, and decried, the sense that legal writing professors are a breed apart from the rest of legal education. For example, the “us vs. them” dialogic has become reified to the point that skills faculties actually do see themselves as different: different in pedagogy, different in teaching loads, different in focus (teaching v. scholarship), and so on. David T. Ritchie, Who Is on the Outside Looking In, and What Do They See?: Metaphors of Exclusion in Legal Education, 58 MERCER L. REV. 991, 1013 (2007). See also James M. Boland, Legal Writing Programs and Professionalism: Legal Writing Professors Can Join the Academic Club, 18 ST.

THOMAS L. REV. 711, 715 (2006) (suggesting that legal writing professors need to produce

scholarship more like that of other professors); Mitchell Nathanson, Dismantling the “Other”: Understanding the Nature and Malleability of Groups in the Legal Writing Professorate’s Quest for Equality, 13 LEGAL WRITING 79 (2007) (advocating equal

responsibilities and treatment for legal writing professors and doctrinal professors).

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A. Comparing and Contrasting Legal Writing Professors with Doctrinal Professors

Legal writing professors view themselves as focusing primarily on the classroom, and they do so in a unique way. To one degree or another, most of the full-time legal writing community has embraced a teaching ethos that emphasizes mandatory conferences with students and has supervised editing of students’ preliminary drafts.⁹This ethos combines an awareness that most law students lack basic writing skills¹⁰with a scrupulous refusal to leave to chance students’ development of such skills. More than any other participants in the legal education enterprise, save perhaps the clinicians, legal writing professors are willing to roll up their sleeves and do transformative dirty work.¹¹

If this were a perfect world, one would imagine that legal education, in appreciation of the legal writing professoriate’s dedication to undertake such arduous tasks, would accord legal writing professors great respect and provide rewards commensurate with their service. But this is not a perfect world.

If I stand out somewhat at a conference of legal writing teachers, they stand out perhaps even more so in the wider world of legal education. Because of the nature of their work, they spend their days differently from most law professors. Teaching is at the center of their universe; that is much less so for other law professors.¹²Law faculty other than legal

⁹See Jo Anne Durako et al., From Product to Process: Evolution of a Legal Writing Program, 58 U. PITT. L. REV. 719, 722–23 (1997); cf. Harris, supra note 4, at 299 (criticizing this practice as “coddling” students).

¹⁰See Macaulay & Manne, supra note 1, at 387(“Most beginning law students do not write or think well.”).

¹¹See, e.g., Mary Beth Beazley, “Riddikulus!”: Tenure-Track Legal Writing and the Boggart in the Wardrobe, 7 SCRIBES J. OF LEGAL WRITING 79, 81 (1998–2000) (stating that

legal writing courses are not “the dirty diapers of legal education,” but rather represent the very essence of what lawyers do, for example, identifying authorities, synthesizing rules, and applying them to...