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

• Author: Kristen Konrad Tiscione
• Pages: 143-166

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 NAT’L COMM’N 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 ASS’N, 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. ASS’N, 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 ASS’N, 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. ASS’N LEGAL WRITING DIRECTORS

247, 252–53 (2002).

12 See TASK FORCE ON THE FUTURE OF LEGAL EDUC., supra note 6, at 1, 24.