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A Tale of Two Disciplines: Legal Writing—A World of Haves and Have-Nots

In his article, A Curmudgeon’s View of the Multi-Generational Teaching of Legal Writing, Professor Jan Levine, bemoans the current state of Legal Writing as an academic discipline. He decries the short memory of its members and organizations and a perceived lack of depth of research in its scholarship. He alleges a tendency of the community to avoid criticism of legal writing colleagues with respect to both pedagogy and scholarship. Further, Professor Levine complains that those writing faculty who achieve tenure no longer have a primary identity as legal writing faculty, something he finds problematic. His overall argument is that generational differences are the root cause of many of these problems and that the younger generations’ ways of approaching matters are necessarily inferior. However, this argument ignores that lower-ranking faculty status and institutional barriers, not generation, are at the heart of these concerns.

Professor Levine and I teach at the same school; he directs the legal writing program and supervised me as the director until just this year, when I stepped away from teaching legal writing due to administrative duties. The fact that I feel comfortable enough to write this response to his well-received article is proof that status matters. An untenured professor, even one with 405(c) status, could not do this with confidence and security. I am conscious that Professor Levine is a major reason legal writing faculty (including me) have tenure and status at Duquesne Kline Law and elsewhere. He deserves many accolades for his previous work, but Curmudgeon’s View misses the mark.

Different generations (and different individuals) bring a variety of strengths to the legal writing field, to both teaching and scholarship, and that diversity is a strength, not a weakness. To the extent Professor Levine’s observations critical of the legal writing field are accurate, it is a function of the lack of status and job security available for the majority of legal writing faculty rather than “naivete,” “incomplete efforts,” or “lack of research.” In this essay I explore several concepts—high turnover, burnout, significant gender disparity, and uneven mentoring of faculty—that contribute to the issues Professor Levine mentions.

The Unending Conversation: Gut Renovations and No-Demo Renos

Elizabeth Berenguer, Lucy A. Jewel and Teri A. McMurtry-Chubbs’ Gut Renovations made an extraordinary contribution to the conversation by showing how traditional legal rhetoric, especially syllogistic reasoning, perpetuates bias and injustice, and proposed looking to non-Western rhetorical forms as an alternative. Essential to the argument is the idea that legal rules and the legal syllogism have great power to determine the outcomes of cases.

We agree that law is biased and that IRAC and rule-based reasoning often furthers that bias. But we argue that doesn’t have to be the case. IRAC and legal rules can be far less constraining and outcome determinative than they first appear. And if IRAC and rules are malleable—not fixed—they can be repurposed as instruments of change.

Sometimes a structural foundation is so faulty that the house must be torn down to the studs. But other times a house can be transformed through no-demo renos by using the structure that exists to create something new and beautiful. This Essay argues that in addition to Gut Renovations’ call to look to other forms of rhetoric to de-bias our perspectives and our law, we also must envision ways to achieve change through the structures of traditional rhetoric. We need to reform traditional legal rhetoric not just from the outside in, but also from the inside out.

Legal [Writing] Scholarship: Why It Counts

This essay continues the controversial conversation about what forms of scholarship count as legal scholarship. At a time when tenure itself is under scrutiny, the question of what scholarship counts toward status improvement or job security in legal academia is as important as ever. In our experience, resistance to legal writing scholarship persists at many law schools. At these schools, the result is that some legal writing faculty must publish in a second area of interest, imposing on them a double burden they might not otherwise assume and depriving them of the opportunity to be students and scholars of the subject they teach. We argue that legal writing scholarship—scholarship that is often inter- or cross-disciplinary in nature, communication-centered, connected to law, and related to the creation of legal texts—meets well-established criteria for legal scholarship and should count towards promotion and all kinds of tenure. As we also demonstrate, legal writing scholarship is both descriptive and normative—the bellwethers of legal scholarship. It is descriptive in the sense that it defines and explores the theory and practice of effective legal communication and normative in the sense that it explores what legal communication can and should be in the form of oral and written advocacy. To understand the legal advocate’s role in achieving just legal outcomes, we need scholarship that is unabashedly descriptive, normative, and interdisciplinary; that restores legal communication to its rhetorical roots, and that aims both for more fair and effective legal solutions and a better understanding of how to achieve them.

Marginalization Matters: Discipline-Building in the Legal Writing Community

Amy Soled’s Unending Conversations essay, The Legal Writing Community’s Bonds Enable It to Flourish, responds to Kevin Bennardo’s controversial essay, Legal Writing’s Harmful Psyche, arguing that Bennardo’s analysis of why legal writing scholarship is not rigorous is flawed and that his proposed solutions are unwarranted. Bennardo’s thesis is that legal writing scholars are “protectionist” and unwilling to engage in rigorous critique of each other’s work, preventing the growth of legal writing as a discipline. Soled’s analysis provides an excellent critique but doesn’t focus on what I see as a key problem with Bennardo’s essay—the failure to address the effect of marginalization on the growth of Legal Writing as a scholarly discipline. In this essay, I address the problem with critiquing the discipline without addressing the marginalization of legal writing scholars within the legal academy. I then provide an alternate critique that begins with an understanding that the cohesiveness of the legal writing community is a strength rather than a weakness but acknowledges that there is room for the discipline to continue growing.

The Critique is on the Glass: The Extension of Museum-Presentation Techniques to Substantively Advance Law School Pedagogy

In 2018, the American Museum of Natural History in New York City visually addressed the inaccuracies in a diorama that purported to depict a meeting between the colonial Dutch and the indigenous Lenape in the seventeenth century. The museum added a layer of commentary to the glass in front of the diorama that identifies and contextualizes the diorama’s inaccuracies and biases. The layer is labeled “Reconsidering this scene,” and ten text boxes point out some of the specific ways the diorama reflects cultural stereotypes at the expense of historical accuracy, including a quote from a contemporary Lenape elder.

Museums are a useful analog to law schools in discussions of how to teach and engage students. And in The Writing’s on the Wall: Using Multimedia Presentation Techniques from the Museum World to Improve Law School Pedagogy, 126 Dick. L. Rev. 475 (2022), Professor Cecilia A. Silver demonstrates how traditional law school teaching would benefit from embracing museum techniques. But museum presentation principles can be more than a corrective to old-fashioned law teaching. The decolonization movement in museums provides a model for teaching students how to critically read cases and learn legal doctrine and how to confront the biases, hierarchies, and injustices of the past and present. In particular, the techniques that museums use to layer, contextualize, and critique information and ideas, including metatextual commentary on their own displays, provide a model for law teaching that empowers law students and challenges the biases and injustices that are endemic to the legal foundations of the law school curriculum.

Mental Health Parity: More Important than Ever Post-COVID

The Unending Conversation in Legal Writing Scholarship: An Introduction

Imagine that you enter a parlor. You come late. When you arrive, others have long preceded you, and they are engaged in a heated discussion, a discussion too heated for them to pause and tell you exactly what it is about. In fact, the discussion had already begun long before any of them got there, so that no one present is qualified to retrace for you all the steps that had gone before. You listen for a while, until you decide that you have caught the tenor of the argument; then you put in your oar. Someone answers; you answer him; another comes to your defense; another aligns himself against you, to either the embarrassment or gratification of your opponent, depending upon the quality of your ally’s assistance. However, the discussion is interminable. The hour grows late, you must depart. And you do depart, with the discussion still vigorously in progress.

Yes, We Can: Embrace The Case for Plagiarism to Enhance Access to Justice

“As a public citizen, a lawyer should seek improvement of . . . access to the legal system. . . . A lawyer should be mindful . . . that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. . . . A lawyer . . . should help the bar regulate itself in the public interest.”

Lawyers who lie or steal can face disciplinary consequences for those misdeeds, as they should. They have duties to their clients, to the courts, and to the public; those duties are inconsistent with misrepresenting fact or law, and they are inconsistent with misusing the money or property that others have entrusted to their care.

But what about lawyers who “present[] another person’s ideas, information, expressions, or entire work as [their] own,” thereby engaging in plagiarism? Plagiarizing lawyers have been disciplined based on the notion that they lied, misrepresenting someone else’s ideas or language as their own; they can also be declared copyright infringers for misusing another lawyer’s intellectual property by copying that person’s legal writing without permission.

I Mua Kākou: A Response to Dean Dickerson’s Call to “Abolish Caste”

I began writing this Essay at the foot of the Ko‘olau Mountain Range on the windward side of the island of O‘ahu while on my summer break from teaching. That setting inspired, shaped, and guided the arguments in this Article.

Hawai‘i was once an independent and sovereign nation. The native inhabitants of the archipelago enjoyed an abundance of natural resources, which they consumed on a communal and subsistence basis, leaving ample time for the pursuit of social and cultural activities such as surfing and hula. After Hawaiians first interacted with Europeans in 1778, however, the native population began to fight disease, high infant mortality rates, and housing and healthcare inadequacies. Military personnel, missionaries, capitalists, and laborers recruited to work on sugar plantations migrated to the islands en masse, and by the end of the nineteenth century, the native population had been overwhelmed and substantially diminished. Then, in 1893, the U.S. military participated in the illegal overthrow of the Hawaiian Kingdom. The indigenous population continues to experience the ongoing harms of colonialization—today Native Hawaiians in Hawai‘i occupy the bottom rungs of the islands’ socioeconomic ladder.

The Legal Writing Community’s Bonds Enable It to Flourish

Professor Kevin Bennardo’s article entitled, Legal Writing’s Harmful Psyche, challenges the core values of the legal writing community. While his fundamental argument is that the legal writing community should focus less on legal writing equity issues and more on scholarly debate, he neither supports this argument nor examines the interrelationship between the two. Moreover, following Professor Bennardo’s advice would likely undermine many of the strides legal writing professors have made over the last two decades; indeed, legal writing professors would once again become isolated, alienated, and silenced, possibly destroying the discipline.

By way of background, the legal writing community is comprised of professors who teach legal writing, the vast majority of whom are women. As Bennardo concedes, “legal writing faculty are generally afforded lesser status in legal academia.” When the ABA required that law schools offer “at least one rigorous writing experience” to secure accreditation, they began to adopt formalized legal writing programs4 but did not offer teaching and scholarship support for legal writing faculty. In response, those in the legal writing academy formed the Legal Writing Institute (“LWI”) and the Association of Legal Writing Directors (“ALWD”) to provide such support and to advocate on behalf of their membership.

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