A Writing Revolution: Using Legal Writing's 'Hobble' to Solve Legal Education's Problem

Author:Kristen Konrad Tiscione
Pages:143-166
 
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A WRITING REVOLUTION:
USING LEGAL WRITING’S “HOBBLE” TO SOLVE
LEGAL EDUCATION’S PROBLEM
KRISTEN KONRAD TISCIONE*
“American education will never realize its potential as an engine of
opportunity and economic growth until a writing revolution puts language
and communication in their proper place in the classroom.”1
I. INTRODUCTION
In 2011, Professor John Lynch suggested that the “new legal writing
pedagogy”2 is the hobble of legal writing faculty.3 He implied that legal
writing faculty “have allowed the perfect to become the enemy of what
would more than suffice” and “created a job that no one in his or her right
mind would want to do.”4 Lynch recommended a pedagogical about-face
and “ponder[ed] whether the Church of Legal Writing should happily
embrace doctrinal variations among its adherents.”5
Legal writing may be hobbled, as Lynch observed, but legal education
is limping a bit too at the moment, and their conditions are related.6 The
problem with legal writing is not, as Lynch suggested, its process
pedagogy. The problem is that law schools have failed to commit to
teaching writing. At most law schools, the responsibility for teaching
Copyright © 2014, Kristen Konrad Tiscione.
* Professor of Legal Research and Writing at Georgetown University Law Center since
1994. Professor Tiscione earned her Juris Doctor from Georgetown and practiced as a
commercial litigator at Kirkland & Ellis LLP before becoming a professor.
1 NATL COMMN ON WRITING IN AM.'S SCH. & COLLS., THE NEGLECTED “R”: THE NEED
FOR A WRITING REVOLUTIO N 3 (2003), available at http://www.vantagelearning.com/docs/
myaccess/neglectedr.pdf.
2 See John A. Lynch, Jr., The New Legal Writing Pedagogy: Is Our Pride and Joy a
Hobble?, 61 J. LEGAL EDUC. 231, 231 (2011). Lynch uses this term to refer to the process
approach to teaching writing that developed in the 1980s. Id. at 231, 234; see also infra
Part II.
3 Lynch, supra note 2, at 231, 244.
4 Id. at 232.
5 Id.
6 See TAS K FORCE ON THE FUTURE OF LEGAL EDUC., AM. BAR ASSN, DRAFT REPORT
AND RECOMMENDATIONS 1 (2013) (“At present, [law schools] face[] . . . economic
stresses . . . and diminished public confidence in the system of legal education.”).
144 CAPITAL UNIVERSITY LAW REVIEW [42:143
writing falls primarily on first-year legal writing faculty.7 Although most
law students must satisfy an upper-level writing requirement,8 it is likely to
be scholarly writing.9 Until recently, legal educators have ignored the fact
that, regardless of the rigor of a first-year course, it is just an introduction
to legal writing. Its benefits are at substantial risk because law schools do
not require students in their second and third years to take advanced
practical writing or other skills-based courses.10 As a result, legal writing
faculty—with little job security11—strive to teach as much as possible in
the first year to prepare their students for the workplace and, at the same
time, preserve their reputations as teachers and those of their employers.
Legal writing’s burden—its “hobble,” as Lynch describes it—has now
become legal education’s problem. Over the past several years, increasing
economic downturns, rising tuition rates, and decreasing applicant pools
have thrown a spotlight on the need for law schools to prepare students to
practice law.12 Law schools can no longer afford to focus on teaching
students simply to think; now they must also teach students to write. A
meaningful commitment to teaching writing requires students to produce a
substantial piece of writing each semester of law school. Due to the fact
7 See, e.g., Melissa A. Moodie & Brette S. Hart, The Missing Link: The Need for Good
Writing Programs in Law Schools, 74 J. KAN. B. ASSN, Jan. 2005, at 9 (“Traditionally, the
ABA requirements have allowed schools to hire underpaid faculty, adjuncts, or upper-
division law students to teach the core principles of written legal analysis and synthesis.”).
8 See AM. BAR ASSN, 2012–2013 ABA STANDARDS AND RULES OF PROCEDURE FOR
APPROVAL OF LAW SCHOOLS 302 (2012) [hereinafter ABA STANDARDS], available at
http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/
2012_2013_aba_standards_and_rules.authcheckdam.pdf (“[L]aw school[s] shall
require . . . at least one additional rigorous writing experience after the first year . . . .”).
9 See, e.g., Academic Curriculum, U. ME. SCH. L., http://mainelaw.maine.edu/
academics/academic-program/curriculum.html (last visited Jan. 12, 2014); Academic
Policies, U. VA. SCH. LAW, http://www.law.virginia.edu/html/academics/policies/ policies_
procedures_6.htm (last visited Jan. 12, 2014); Upper-Level Writing Requirement, AM. U.
WASH. C.L., http://www.wcl.american.edu/studentaffairs/writingreq.cfm (last visited Jan.
12, 2014).
10 See Carol McCrehan Parker, Writing Throughout the Curriculum: Why Law Schools
Need It and How to Achieve It, 76 NEB. L. REV. 561, 563 (1997) (“Neither a single
‘rigorous writing experience’ nor a first-year legal writing class is sufficient to provide
basic competence in written communication.”).
11 Craig T. Smith, Technology and Legal Education: Negotiating the Shoals of
Technocentrism, Technophobia, and Indifference, 1 J. ASSN LEGAL WRITING DIRECTORS
247, 252–53 (2002).
12 See TASK FORCE ON THE FUTURE OF LEGAL EDUC., supra note 6, at 1, 24.

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