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February 03, 2009


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Peter Friedman

There is no support for scholarship by legal writing professors at any but a tiny handful of schools. In addition, the burdens of teaching doctrinal courses is a fraction of the burdens of teaching legal writing. I've taught both. For many years. It cracks me up when doctrinal profs compare grading exams to grading legal writing assignments. The work on legal writing assignments (typically requiring review of multiple drafts) is virtually the equivalent of the work of copy editing lousy writing. And when you're not in class or grading and commenting on papers, you're meeting one on one with students, researching and creating new problems, critiquing moot court practices . . .

In short, the job as it exists in virtually every U.S. law school provides no opportunity, much less support, for scholarship.

And having spent nearly twelve years as a commercial litigator, I've come to feel very strongly that the essence of legal writing in practice (which is what we teach) bears little relationship to the essence of legal scholarship. They have entirely different functions, entirely different audiences, and address entirely different questions. In fact, I would think that if someone's experience as a legal writer were only legal scholarship, he or she would be utterly unqualified to teach legal writing. I sure wouldn't hire that person to write a brief for a client of mine.

Kathy Stanchi

Peter is absolutely right about the disgraceful lack of support in the academy for legal writing scholars. He is similarly correct about the demands of teaching it -- especially at so many schools that have a crazy number of students per faculty (I've heard of LRW profs with 90 students). So, in that regard, I suppose Ms. Wagner could be forgiven her failure to produce scholarship. Nevertheless, the LRW world has many outlets for shorter scholarly works, particularly those focused on law pedagogy, and even with a crushing workload I know that there are teachers out there producing short but very thoughtful pieces that show an interest in teaching what lawyers do (in places like Perspectives or the Second Draft, or the AALS syllabus or bar journals).

For many law schools (mine included), showing that interest in pedagogy, showing (somehow) that you not only know how to do it, but you at least think about how to teach it, is critical. That strikes me as the right balance. Of course we wouldn't want someone whose only experience in writing is scholarship to teach lawyering skills. On the other hand, I do not believe that merely being a top practitioner is enough either. To really teach someone how to be a good legal writer, you have to delve into your own process, think about what makes you good, and be able to communicate that to total novices. It isn't easy, and it is absolutely essential. In my view, scholarship helps you with that "reverse engineering" process.

I also worry that Peter's other point could be read as supporting the idea that LRW teachers should not be supported in their scholarship because what they do is "entirely different" from legal scholarship. I'm guessing that's not what he meant. But just to clarify: I don't think we should let the legal academy quite so easily off the hook. I think legal writing and lawyering processes are worth thinking and writing about, and I think it is unbelievably tunnel-visioned for schools to neglect (and degrade) this emerging discipline. I also think scholarship -- particularly about legal writing --makes you a more thoughtful writer and teacher. And that makes you a more attractive candidate.

Peter Friedman

Of course I don't think we shouldn't do scholarship. I think we should have student loads that give us some time to do something else, and I think we should get every other bit of support that doctrinal faculty get to produce scholarship.

And I didn't mean to imply legal writing professors don't produce scholarship. They do, and, if the doctrinal faculty would deign to realize it and provide the opportunities and support, their legal writing professors could inject a lot of brilliance and insight not commonly addressed in legal scholarship. Legal writing is essentially legal rhetoric, and rhetoric and communication are venerable and profound disciplines ripe for scholarship, particularly given that legal rhetoric has its own characteristics and that we are living in an era in which our means of communicating are undergoing revolutionary change. And let's not forget that every legal writing professor also is likely to have an enormous amount of knowledge about specific doctrinal fields.

Finally, I think practice is a necessary qualification to teach legal writing, but, as Kathy writes, it alone is not sufficient. Not only does it require you to be highly attuned to what lies behind your own writing and analysis, but it also requires the skills of a great teacher.

Tracy McGaugh

Also, in legal writing, you really take a chance by hiring someone with no teaching experience. You can get away with it in a doctrinal subject, but hiring a legal writing professor without teaching experience is a lot like hiring a clinician who has never practiced. Teaching a skills course is an advanced teaching endeavor. It's no place for novices unless your school has an excellent mentoring program.

Ken Chestek

I'm going to disagree with Tracy a little bit, or at least point out a risk in what she says. I think it is fair to say that hiring a legal writing professor without *practice* experience is like hiring a clinician who has never practiced; that is something I don't think you'd ever want to do. But there are circumstances under which you may want to hire a legal writing professor without *teaching* experience, because you have to start somewhere. All of us in the profession got a first job someplace, and for many of us that first job was a full-time job teaching legal writing. For some of us it has worked out well; for others it may turn out that teaching was not their bag. It is hard to know in advance what category any candidate might fall in to.

To expect "teaching experience" for all (or at least most) LRW hires would require people who want to get into teaching to get their "teaching experience" in some other way, most likely teaching as adjuncts. There are some great adjuncts for sure, but for many adjuncts the pay does not justify spending a great deal of time on the teaching job; why spend a lot of time working for near minimum wage when you can bill clients at hundreds of dollars per hour? I don't think we want to encourage the market for adjunct teaching; it is a favorite way for deans to save money, at the cost of a quality education for many students.

Tracy does allow that schools with "excellent mentoring programs" might be able to hire and nurture teachers with no previous teaching experience. I agree with that, and would go further to suggest that all schools should aspire to such "mentoring programs" so that we can continue to bring new people into the profession.

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