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 UNENDING CONVERSATION:
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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.
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.
“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 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.
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.
Elizabeth Berenguer, Lucy A. Jewel and Teri A. McMurtry-Chubbs’ Gut Renovations: Using Critical and Comparative Rhetoric to Remodel How the Law Addresses Privilege and Power interrogates one of the shibboleths of legal writing and analysis: deductive reasoning. Gut Renovations begins from the premise that deductive reasoning, if it is even mentioned at all in the scholarly arguments about the law’s bias, is largely discounted as being a minor player and a neutral organizational tool. This is, the authors argue, not only misguided but also counterproductive. Deductive reasoning, they posit, is not objective or neutral; rather, it is one of the central villains working to perpetuate bias in law. In other words, no matter how much we critique legal doctrine, law will continue to be an ineffectual tool in the fight for social justice as long as we teach deductive reasoning, uncritically, as the way to reason in law. This challenge to one of the most enduring orthodoxies of legal writing and rhetoric alone would make Gut Renovations worth reading and considering.