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Monday, December 24, 2012

cost v. curricular innovation: that infernal dilemma

So the blogo-mediasphere is rightly concerned with legal education's too-high costs.  For some radicals (here used in a neutral sense), that is the signal issue around which all other considerations orbit.  Other voices decry traditionalism in law school curricula, celebrating innovations, preaching the wisdom of experential learning, and urging major changes.

And herein lies the vexing dilemma:  Adapting to the new normal requires major curricular innovation; innovation costs money; the current economic model relies on unsustainable tuition increases and (arguably) budgets.  How ought we to think about the tradeoffs?

Some general thoughts:

(1) Innovations should be evaluated on both pedagogical and economic dimensions.  Experential learning is, indeed, an expensive proposition, but the challenge for clinicians and others invested in such worthy projects is to think about how to manage budgets in order to economize on particular parts of the clinical experience.  To be more concrete, some admixture of public subsidy, Biglaw firm subvention, cy pres fees and other sources of court-generated funding, will help shift some expenses from recycled tuition;

(2) Legal writing should be heavily subsidized by firms.  Innovations in legal writing (advocacy + transactional) are high priorities -- as Casey Stengel says, "you can just look it up."  Firms such be urged by deans & other fundraisers to support generously, and ideally with endowments, creative legal writing endeavors.  We should pursue tangible partnerships with firms who can afford this investment (here not being wholly naive about the economic challenges facing firms), making the case for new modalities of legal writing and the ways in which these programs will affect positively firms' bottom line;

(3) Fee-generating clinical initiatives.  There are emerging initiatives to form what are essentially in-house law firms within law schools.  Such programs, perhaps focusing more on transactional than litigation work, would look simultaneously to give students direct practical experience, including managerial/organizational skill-building while also generating at least a modicum of fees to offset clinical costs.  Negotiating the politics of law school v. law firm competition is tricky.  But  this will, I believe, emerge as a novel strategy to realize both economic and pedagogical aims;

(4) Tuition breaks for externing students.  I want to be careful with this suggestion for obvious reasons, but perhaps law schools, particularly the relatively well-resourced ones, should look at some tuition arrangements (reductions or one-time grants) for students who are spending a semester's worth of time externing.  The traditional model of "a credit is a credit is a credit" may need to be adjusted; to the extent that students whose principal locus of activity is temporarily elsewhere impose somewhat fewer direct financial burdens on the school, schools should think about tuition adjustments;

(5) Fight the power.  That is to say, push hard against regulatory costs of key groups including state bars, ABA, AALS, etc., so as to enable curricular experimentation without extraordinary external costs.  Better yet, work with the central university and with external grant-funding organizations to subsidize experimental-experiental initiatives.

Here's a thought on this last issue:  LSAC is sitting on a pile of money and would seem to be well positioned to subsidize law school curricular projects, particularly for those law schools least able to support them on their own.  How about a major grant initiative directed toward these aims?

Posted by Dan Rodriguez on December 24, 2012 at 01:42 PM in Life of Law Schools | Permalink

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Comments

Point (2) wasn't clear to me. By "legal writing" do you mean the academic writing of professor or something else? And by firms, I assume you mean law firms.

Posted by: John Steele | Dec 24, 2012 2:47:22 PM

"legal writing" = focused instruction, beginning in the students' first year,on written expression. Yes, law firms.

Posted by: dan rodriguez | Dec 24, 2012 6:32:09 PM

For $2,200, a graduate taking the Kaplan prep course for the New York bar exam can expect to have written feedback on every practice essay he submits to them between May and August. That feedback comes from attorney-employees of the company trained to grade the essays as the state bar examiners will, and the graduate can submit as many essays for grading as he wants, with a 24- to 48-hour turnaround.

At my law school, I got about 90 minutes of feedback in total from a non-practicing attorney on two memos and a brief, and maybe a like amount of feedback from her 3L TAs. I paid about $22,000 for that.

Given these facts, you might understand someone's incredulity at the idea that law schools can't do a better job of teaching legal writing with only the several million dollars being paid by the 1L class of any given year. If law schools are waiting for law firms to subsidize legal writing programs without any more direct return than their non-subsidizing peers will get, forget it.

Posted by: Morse Code for J | Dec 24, 2012 6:59:45 PM

Kaplan prep course is the answer for sub-standard legal writing??? Uh, not exactly.

My point is not that law schools cannot afford to have a good legal writing program;it is that partnering with lawyers who have a vested interest in improving lawyers' writing can help to alleviate costs otherwise borne by law schools.

In any event, law schools can do a better job than the lousy job you describe at commenter's law school. Students deserve and ought to demand better.

Posted by: dan rodriguez | Dec 24, 2012 7:18:03 PM

dan rodriguez

Why do lawyers "have a vested interest in improving lawyer's writing" seriously?

It is this sort of malarkey that causes me to despair of law schools.

Law is a competitive business - why would I want to improve the other guy's writing. Yes many law graduates cannot write, but with two graduates for every potential job - and dozens of applicants for any good ones (such as I might offer) I can just "weed out" those that cannot write.

Pleas, don't write silly stuff - we, the profession, are not going to pay law schools yet more money for them to the the job they should have been doing. You want better writing and practical skills,mouth a dozen currently tenured profs in you school, so they can paint their toenails and do "scholarship" and show you are serious by granting tenure to a dozen clinical professors and writing instructors. It is the fact that these people are not tenured while complete buffoons are that shows what law schools really think.

Inter alia, I don't yell at associates much, but if one of them came to me with something as dumb as - the leal profession will find a way to pay us to improve legal writing instruction because they want to - I'd mark him or her down as someone who believes in the tooth-fairy

Posted by: MacK | Dec 25, 2012 7:45:24 AM

iPad self correction - mouth a dozen tenured profs was "cut a dozen tenured profs"

Posted by: MacK | Dec 25, 2012 7:47:20 AM

@Dan:

I compared Kaplan to my law school to highlight the huge difference in cost for the student, with arguably worse performance by the law school. In terms of legal writing, I really had no idea what the hell was going on my first year. However, I improved my writing during my first summer clerking for a state trial court with a lot of practice and feedback from a wonderfully patient judge and her clerk. It seemed to me that I would have learned more and faster if I had skipped my legal writing course in favor of interning with this judge or anybody else who could have spared the time for real discussion and revision of my work. The thought struck me again during the essay portion of bar preparation, for obvious reasons.

Maybe law schools are poorly equipped to provide a great deal of individual attention to the people who aren't getting it. (At least part of the problem with "students deserv(ing) and...demand(ing) better" is that few of them are able to appreciate that they are poorly served, because 1L goes out of its way to baffle and mystify everyone at almost every law school.) Maybe outsourcing the problem to Kaplan or a like contractor capable of providing more practice and more detailed feedback is an answer. In any case, it seems unlikely that law firms rich enough to provide schools with legal writing endowments would bother, with (a) the economy for legal services being so wretched and (b) the fact that the kids who get it in spite of their schools are precisely the ones that those firms will hire.

Posted by: Morse Code for J | Dec 25, 2012 9:34:13 AM

Yes. The idea that law firms would want to subsidize legal writing instruction for tens of thousands of law students when only a fraction of those will go on to actually be practicing lawyers is nonsense.

Posted by: anon | Dec 25, 2012 11:23:02 AM

@anon

The idea that law firms would want to subsidize legal writing specifically may be nonsense. But they do want to subsidize pet projects, generally, as long as they get something (or are promised something) for their money. Some Deans are OK with being detached from the operations of the school and spending all their time on the road diving for dollars from the donors, and those that are will be able to get some pet projects subsidized, of course, whether they be for legal writing or for international animal law. If law schools start taking fees from law firms and competing with them though, then this may become a little more problematic... try it out and see how it works!

The idea of pushing down the "regulatory costs" of the ABA is an interesting addition. Maybe the ABA SHOULD be regulating more to make sure that quality schools with quality programs are being accredited, and only when the market can accommodate the increased supply. The lax regulation of law school accreditation enables unfair costs for bad academic programs (e.g., TJSL). I don't see cutting the overhead added by ABA regulation, at a time when their regulation should be strengthened substantially, as being the thing that's going to save law students boatloads of cash. The real power that should be fought is within the schools themselves, but it's easier to blame it on external regulatory bodies than looking within.

Posted by: anon2 | Dec 25, 2012 12:14:49 PM

legal writing subsidies: happening already. Some nat'l firms are already supporting initiatives at several elite schools (e.g., Kirkland/Columbia LS; RopesGray/HLS). My not-novel idea suggests expanding these partnerships to wider group of schools. Good legal writing is important; weeding out bad writers post-graduation is (so the law firms tell us) not the answer.

regulatory costs: these costs are not deployed only for quality control at the bottom part of the food chain, but also to strategies and standard that stifle innovation across the spectrum. Is this a good use of resources?

Posted by: dan rodriguez | Dec 25, 2012 1:25:17 PM

Don, don't despair, MacK is a notorious blowhard who trolls any law-related blog that has largely unmoderated comments. He will soon tell you about his successful practice and his mahogany desk.

Posted by: Brian | Dec 25, 2012 1:57:58 PM

@Morse Code for J, MacK, and Dan Rodriguez: I learned more about legal writing from my federal clerkship than all 3 years of law school combined. Maybe if I had had more than a 2 credit writing course in law school . . . . I may not be quite as skeptical as MacK, but I tend to agree that there is not much in it for law firms generally to subsidize legal writing at law schools. The counterexamples you cite, Prof. Rodriguez, are super-elite firms that know they are likely to recruit heavily from those two particular super-elite schools. Although the focus on blawgs like this is the financial crisis facing law schools, law firms have not exactly been rolling in the dough. My own firm has cut lawyers, support staff, charitable giving, and reduced the summer program year after year. The students at these elite institutions like Columbia and Harvard likely need the least help in becoming effective legal writers. Once you try to extend subsidies to second tier (and below?) schools, the very firms that might be able to afford to fund a legal writing program have no incentive to teach students to write well when those students are unlikely ever to work for the firm subsidizing the program. And even if you consider the fact that a firm may recruit students from lower-ranked schools, only the very few, top-ranked students have any chance of getting big firm jobs. Why would a firm pay to teach ALL of the students at a school to write when perhaps a handful even have a chance of getting an interview at the sponsoring firm? I tend to agree with MacK on this point - hire those who are good legal writers (not just those talented enough to write esoteric law review articles), grant them tenure, and treat them like the valuable additions to the law school that they are. Academia perennially descries the credentialism that produces an insular faculty with little or no practical experience, then laments the fact that law students are unprepared for practice, while hiring committees flock to the same candidates who remind them of themselves, perpetuating the problem. Seems like there is a connection here somewhere.

Posted by: VAP-to-be | Dec 25, 2012 2:35:25 PM

Dan,

When you look at what the law firms are donating to the legal writing programs you cited you will find that it's a pittance. Moreover, just about every firm is under pressure to cut costs.

Oh and Brian is a blowhard who pretends to be a law professor, he trolls inside the law school scam and whines a lot. And my desk is not mahogany - but my chair is an aeron. Rumours have it that Brian was denied tenure over a few little peccadillos ...

Posted by: MacK | Dec 25, 2012 3:01:45 PM

VAP-to-be,

It might interest you to know that at some law schools, legal writing faculty members are tenure-track. At most others, they are on long-term contracts. Legal writing faculty are also not generally hired on the basis of writing "esoteric law review articles." Most also have a great deal of practice experience.

Posted by: Anons | Dec 25, 2012 3:06:21 PM

VAP-to-be

I agree. The few instances cited are for the publicity. I have not found many Yale or Harvard grads that could. Not write - though a few had a dreadful and dull writing style, perfectly grammar, punctuation, but dull as mud, no rhythm, no style, plunk plunk plunk. A lot of legal writing courses make that problem worse actually....

The real issue for me is that law schools in treating legal research and writing instructors and clinical professors as second class citizens, denying them tenure, paying them less manage to show what they really think about the importance of legal writing - that and the utter crap and bilge that fills the typical law review. Another indication of how lowly regarded practice skills are can be found in the thread on this site Filling out the FAR Form: Reflections from a Newbie - nowhere is there any discussion of what practical experience might be important on the FAR form - indeed the AALS description of the experience section of the form is telling:

"Employment Information: this form requests information about past employment, the type of work performed and any major writings that have been or are scheduled to be published."

So the form conflates publications with practical experience - and we all know from the posting that it is the publication that matter, not the cases.

Posted by: MacK | Dec 25, 2012 3:13:59 PM

Everyone ignore Brian, he is just bitter because he was denied tenure over a minor peccadillo - and my desk is not mahogany ....

Posted by: MacK | Dec 25, 2012 3:15:04 PM

could not. Write - "was could not write" before the infernal autocorrect on my iPad snuck in a period cap

Posted by: MacK | Dec 25, 2012 3:17:51 PM

Anons

At SOME law schools legal research and writing instructors are tenure tract. At SOME - how big of them....

They should all be tenure track and if that means cutting a few "scholars" so be it ... They can join Brian in the oops pool.

Posted by: MacK | Dec 25, 2012 3:20:06 PM

Thanks for answering my questions. I find the suggestion astonishing, but if schools can get law firms to do that, congratulations. (fwiw, when a couple of elite firms help a little at a few super-elite schools, i see that as primarily advertising/marketing dollars and not as something that will truly move the needle.) I've been a fan of Northwestern's efforts at innovation and I do wish you the best in those efforts.

Posted by: John Steele | Dec 25, 2012 5:04:01 PM

Experiental learning need not be an expensive proposition. It's expensive only when it's built onto the already obscenely expensive model of non-teaching-focused law schools where the bulk of money is spent on almost everything but teaching (yes, training) would-be lawyers how to be lawyers.

I've been teaching experientially--mostly through simulation, but using other non-traditional teaching methods--for nearly twenty years, and it's not rocket science.

Posted by: Andrej Starkis | Dec 25, 2012 8:39:09 PM

The latest survey shows that about 40 Legal Writing teachers are tenured, and the vast majority of the rest are on contract status, but without caps, so they are year to year. Legal Writing as a field has grown by leaps and bounds in recent years. There are two major professional organizations devoted to helping them share ideas and programs and teaching methods and data on learning methodology. LWI and ALWD hold alternating three-four day workshops, and sponsor annual regional workshops, and one-day workshops, and publish their own professional journals for scholarship in the field. The teachers unfortunately are not treated as equals by elitist faculty and deans at too many schools. Most law schools have started to increase credits for legal writing training, and extend it to upper levels. At my school, for example, we have 11 hours out of the 87 required for graduations, and 11 teachers who devote most of their teaching time to LW courses, in sections of no larger than 34 students. The students are exposed to detailed criticism, mandatory conferences, required rewrites, and every form and style of legal writing, from memos to briefs to contracts and other legal documents, to scholarly articles, and to oral argument training as well. Unfortunately, the worst programs are in the most elite schools, where the powers that be think the students are bright enough to learn legal research and writing by themselves. In addition, my school already has and has had for 37 years a fee-generating clinic, where students work with experienced clinical professors on their practices in criminal law, immigration law, taxation, matrimonial law, entrepenureal law, health law, and intellectual property law. To compare the experience one got from Kaplan's review for a bar exam with the legal writing and practice programs at the majority of law schools is laughable. But the idea of law firms contributing to skills training, creation of practice ready lawyers coming out of law schools, is a very sound one, and should be encouraged.

Posted by: Ralph | Dec 25, 2012 10:26:07 PM

Ralph:

I don't know if your law school was my law school - but 23 years ago it was boasting of its legal writing program and its clinics - but the legal writing was taught by a 3L instructor - a Yale English Major with the pedantically boring style that engenders - and to be honest the instruction was not good (and I was coming out of a background in science.) I can write - I have had a few books published and numerous articles and have had mostly winning briefs at all levels of US courts and a few tribunals outside, but essentially none of that writing ability came from my legal research and writing instruction. Indeed I would say that I needed to unlearn a lot of what I was taught to be able to write convincing and effective briefs.

More recently I have observed a growing inability among law graduates to write contracts and indeed fairly standard legal briefs. This is exacerbated by the knowledge management systems used by many large law firms - which recycle contract elements or what is regarded as the boiler-plate part of legal pleadings (the language in almost every 12(b) motion of SJ motion I read is, for the first six pages, identical.) Some large firms pretty well forbid junior lawyers from doing any substantive drafting, making them use the "precedents" in their system. Indeed on old girlfriend of mine - 20 years ago now, while at the whitest of White-Shoe firms in New York, was assigned to make sure that none of the typos in regular bond offerings were fixed (a great use for a Fulbright Scholar.) In a lot of instances this has become quite dangerous - I regularly see agreements with wholly inappropriate no-waiver clauses, integration clauses that fail to take account of the related agreements being signed at closing, arbitration clauses that do not set the "seat" of the arbitration etc. In one instance two megafirms spent $250,000 of their clients' money on a third firm's services rather than correct a one-word-typo. In my practice I find that I regularly write "clean sheet" contracts - this is considered by many to be weird.

A for the legal clinics - when I was in law school, despite massive unmet need for free legal services, there were never enough clinical slots for the students - I think about 15% managed to get into a clinic.

Generally I agree with you - if you want law schools to do a better job of teaching legal writing and practice skills, they need to treat that part of legal education as important. The first step would be treat clinical professors and legal research and writing instructors as genuine peers of the rest of the faculty - pay them at least as well, or indeed better (since they are the academics that are marketable to firms), give them tenure. I also agree that the comparison with Kaplan is inapt - but disagree in that I suspect for many law schools it was a fair observation. My objection to Kaplan is that it teaches to the test - the bar exam, which is far from typical legal writing.

So, things I would like to see in law school legal writing courses that would help teaching - contract dissection, i.e., taking several types of contracts and working through them clause-by-clause, explaining the purpose of each clause, the variations possible, the impact of those changes. Persuasive writing - i.e., not just how to write technically correct English with perfect Bluebook citations, but writing with style, flow, rhythm and some sense of rhetoric - to many programs pound this out of the students. And finally, "style mastering," i.e., taking contributions from multiple writers and combining them into a single document so that it reads as a cohesive whole with a consistent style.

Finally, "the idea of law firms contributing to skills training, creation of practice ready lawyers coming out of law schools" is simply not sound because no amount of encouragement will make law firms make real contributions. Wishing that law firms might have a sudden whim towards altruism, or that their budgets would support such contributions won't make it so (as VAP-to-be explained.) If this is going to happen law schools will have to do it out of the resources they currently possess. Given that the schools are charging $1,500 to $1,800 per credit hour - say $100 per teaching hour per student, it would seem that there are ample resources that could be better directed.

In any event, I am sure that legal writing can be taught properly - if there is the will to do so. I just don't see that most law schools really care to the extent of curtailing "scholarship" to do so.

Posted by: MacK | Dec 26, 2012 11:10:31 AM

And yes there are a lot of typos above - it's a blog, I do not take the time to proof-read.

Posted by: MacK | Dec 26, 2012 11:58:48 AM

Mack, serious, non-snarky question:
"style, flow, rhythm and some sense of rhetoric ... And finally, 'style mastering,'"

To what extent do you think these advanced skills can be taught? From reading about actual writers, I get the sense that they all learned such things with a) a ton of practice, and b) a ton of reading. (My favorite example is Hunter S. Thompson, who went so far as to retype Fitzgerald to teach himself how the prose style worked.) And most people---not just law students, but practicing lawyers and judges and professors not just in law but in lots of disciplines and frankly just about every-the-fuck-one---wouldn't even know what an interesting sentence looks like, let alone how to write one.

And isn't "pedantically boring" at least functional? Better than incoherent, right?

Posted by: Paul Gowder | Dec 26, 2012 12:27:11 PM

For Mack: 1. My school is not the one you went to. We have full time Legal Writing teachers, who make that field their careers. And our clinic has about 10 staff attorneys, each of whom supervise 10-11 students, so there is personal guidance and mentoring.

2. I talked with pride about the growing number of career Legal Writing teachers there now are. But there are serious inequalities in the way they are treated at many schools. For one thing, they are paid about half of what a tenure track professor is paid, even with the same basic credentials. At many, they are not given any voting rights on curricular or other legal education decisions. They often are not allowed to serve on faculty committees. The disparities go all the way to the top...one recent trend is for new deans to come to a school, spend lots of money refurnishing the dean's office and suite, and bragging about the school's legal writing program, while at the same time denying job security to those who teach it, and not raising their salaries.

3. Yet since the 1970's, lawyers and law firms have been complaining that the graduates they hire are ill equipped to be able to write basic legal documents. Very few schools today require drafting...it too often is at most an elective. Very few schools offer any required comprehensive legal research and writing courses...they too often satisfy the ABA standard for one rigorous upper level writing experience by letting students write scholarly law review articles, which may improve their grammar and basic writing skills if properly mentored, but don't add any practical value for a graduate starting out at a law firm.

4. The ABA has taken modest steps to try to insure some job security for clinical faculty, even requiring schools to offer live client experiences for students, though not for every student. But it has left it to schools to decide how to staff their legal writing programs, assuming they have one. So, a number still use adjuncts, or even 3L students. (probably the one you went to). But the standards do not require continuous contracts, with a presumption of renewal after a period of time, nor tenure. And if they do afford the opportunity for tenure, they require candidates to write philosophical or "scholarly" articles on doctrinal subjects and don't count articles on teaching techniques or learning theory or basic legal analysis and reasoning skills.

Posted by: Ralph | Dec 26, 2012 2:27:07 PM

(1) Get cash subsidies from the subsidy fairy
(2) Get cash subsidies from the subsidy fairy
(3) Work for cash
(4) Charge less tuition for an education someone else is providing
(5) Get cash subsidies from the subsidy fairy

P.S. - LSAC hands out free cash subsidies

This doesn't seem original, or realistic, unless you're a top school, in which case you have always had a strong endowment and donor outreach programs.

Posted by: anon2 | Dec 26, 2012 2:49:56 PM

MacK is blowing hard as usual. Can't you folks ban him and Jimbino--maybe they're the same?

Posted by: Brian | Dec 26, 2012 4:32:24 PM

Ralph - most legal writing profs do not have "the same basic credentials" as doctrinal professors. At my school, none of the legal writing professors have federal appellate clerkships, none were in the top 10% of their graduating class, and few were on their school's main law review. Almost all of our doctrinal professors checked those boxes. It is much, much more difficult to land a doctrinal professor position at most schools.

Posted by: Anon | Dec 26, 2012 7:08:47 PM

Mack--

I agree with just about everything you say. I am one of the minority of legal writing professors who is on the tenure track, with completely equal pay and status with all of the other professors at my school. Having previously taught at schools with a lower-status and lower-pay long-term-contract, I can report that the freedom and incentive to teach creatively is truly liberating. I incorporate a great deal of experiential learning in my classroom, especially when I teach persuasive writing, and the students respond well to these methods.

And while Ralph reports (accurately) that the teaching of legal writing has come a long way in the last 25-30 years, there is still a long way to go. We need to stop focusing on the "product" ("what does an appellate brief look like?") and start focusing on the outcome ("what can we say about our client that is going to persuade the judge or judges?") Some of that is happening already; the Applied Legal Storytelling movement is studying precisely those questions, and seems to be gathering some steam.

So don't lose hope! We are improving, albeit more slowly than most of us would like.

Posted by: Ken Chestek | Dec 27, 2012 11:35:38 AM

Perhaps a legal writing element needs to be integrated into the traditional 1L curriculum, perhaps by merging the legal writing and research courses with the classes. The most rewarding thing I did in any of my doctrinal classes was in my small section of civil procedure, where my professor had us draft a complaint and an MSJ.

For example, the topic for the next week of Torts is causation. Students receive a case file and write a short research memo on causation as applied in a randomly selected jurisdiction and to the facts of a case. Then you discuss causation in class using the assignment as a framework. Legal writing instructors or 3Ls are assigned to the class to grade the assignments and give feedback, and report to the professor in order to give them information about the content of the papers to guide the discussion.

I'm not a big fan of the traditional doctrinal curriculum, but I've accepted that it is never going to be supplanted. Perhaps it can be made more skills-based.

Posted by: BoredJD | Dec 27, 2012 2:07:46 PM

Bored JD--

There is some merit to integrating legal writing instruction with doctrinal instruction, but it is not nearly as simple as you make it sound. Separating the assignment-creation from the evaluation is very problematic: no LRW professor I know wants to be a "super TA" for the doctrinal professors. Plus that simply perpetuates the myth that legal writing is less important than doctrinal instruction. In that model, students would quickly surmise (incorrectly, in my view) that the doctrinal instruction is the important stuff, taught by the "real" professor, while the writing piece, evaluated by some lesser being, is less important.

No, if you are going to integrate doctrine and practice, the same professor must design the assignments and evaluate them. This can work well if the professor is trained to evaluate writing (which is not nearly as easy as it sounds). But it also requires smaller class sizes, as as not to overwhelm the professor (who cannot realistically provide adequate individualized instruction to more than 40 students per semester). Which leads to some of the resource issues identified earlier in the thread.

Posted by: Ken Chestek | Dec 27, 2012 2:25:06 PM

Anon wrote:

"Ralph - most legal writing profs do not have "the same basic credentials" as doctrinal professors. At my school, none of the legal writing professors have federal appellate clerkships, none were in the top 10% of their graduating class, and few were on their school's main law review. Almost all of our doctrinal professors checked those boxes. It is much, much more difficult to land a doctrinal professor position at most schools."


What a gross generalization to make. This is simply not true at many places. At the law school I teach at, for example, all of the legal writing faculty members did write on the school's main law review, two of them served judicial clerkships, two of them were partners at large law firms for a period of time, and one of them worked in corporate law for a multinational corporation for years. All of them were in the top 10 percent of their graduating classes -- two were in the top 5 percent, in fact.

You may be very correct that it is more difficult to land a doctrinal position at most law schools. But that is because most law schools treat legal writing as an afterthought, to be paid a fraction of the pay for other classes, despite substantially more time and effort required to providing meaningful instruction and feedback to students. The fact that it is much more difficult to land a doctrinal position does not mean that legal writing should not be emphasized far more -- it's every bit as much a reflection of the inequities that persist in the field.

Posted by: LWProf | Dec 27, 2012 2:47:51 PM

I agree. You really need to take a look at what is going on in the Legal Writing field. In the last twenty five years, there have been more than 100 books on various aspects of teaching legal writing....from pure writing books, to legal analysis, to legal advocacy, to story telling, to learning methods and theory, to teaching techniques. Those kinds of books do not exist in the doctrinal teaching world. There are two major organizations devoted to helping legal writing professionals learn and excel...The Legal Writing Institute has over 1000 members, and holds biennial three day conferences, plus annual regional and one day conferences, exchanging ideas and learning to others in the field....last summer's conference had over 600 attending. It has its own journal, the LWI Journal, devoted to these subjects. ALWD, the Association of Legal Writing Directors, also holds biennial conferences, with all legal writing professionals eligible to attend. It finances research by members and publishes its own journal as well. Scribes also holds conferences and publishes articles on teaching legal writing. The Burton Foundation annually has awards to "Legends" in the field. I would say that 85% of those teaching LW now have had an average of three or four years of practice, at large firms, or as law clerks to judges. 70% of them are women, a fact which helps law schools meet the requirements for diversity. Some, like the program I started at Chicago Kent, have some LW teachers as VAPS, who go on from two or three years to tenure track jobs at other law schools, having had a great apprenticeship experience in their years with us. But the nucleus of our legal writing teachers are on continuous contracts, sit on faculty committees, vote on almost all issues except tenure and promotions, and have offices among the doctrinal teachers. They unfortunately don't get paid as well. That discrimination goes on here too.

As to credentials, our assistant director has a master's degree and clerked for two federal judges, one district court and the other court of appeals. Another graduated magna cum lauda from Notre Dame and clerked for a sixth circuit judge. Another graduated from U of C and was staff attorney for the seventh circuit and was an associate at Mayer, Brown for four years. Another clerked for a 9th circuit judge after graduating magna cum laude from Harvard. Shall I go on? Another, a Michigan grad, was an assistant prosecutor in N.Y. for many years. Another has a Ph.d. from Berkeley and was a legislative assistant in the house of representatives, after clerking for a seventh circuit judge -- incidentally he was editor in chief at George Washington law. We have another Ph.D. and graduate of NYU Law, who co-taught a course with Derick Bell. A current VAP was an associate at Winston and Strawn, clerked for a federal judge and then was an associate at another biglaw firm in NY. Another, a U of C grad, clerked for the Minnesota Supreme Court. I will stop here, though I haven't covered the others.

Posted by: Ralph | Dec 27, 2012 3:49:06 PM

Ken-

The simple fix for that problem would be to make the writing assignments an integral part of the final grade and to do away with the traditional issue-spotter examination.

At my law school, students considered legal writing less important than doctrinal classes because we were not given letter grades, which meant the class had no real value in the eyes of employers. My LRW was taught by a young former midlevel associate in a program for future tenure track professors. The instructor told us that LRW should not get in the way of preparing for issue-spotter exams in "real" classes- these real classes being the ones with letter grades that would determine our career paths. The course was specifically designed to terminate well before final exams.

If written and researched assignments were the mode of evaluation, and the doctrine provided a framework, believe me, students would take the writing assignments very seriously, whether they were given by a professor or a TA.

Posted by: BoredJD | Dec 27, 2012 6:31:26 PM

Ralph, your perspective is really interesting. And I take your point that the credentials of a group depends on the rights and salary of the group: If you give them equal rights and salary, you can get (more or less) equal credentials. One concern with legal writing programs is its time-intensive nature, and as a result, its cost: While a "doctrinal" professor can teach 200 students a semester in large lecture classes, it's harder for a legal writing instructor to effectively teach more than (say) 30 or 40 students a semester. Are there ways around that limitation, or is that just an inherent part of legal writing programs?

Posted by: Orin Kerr | Dec 27, 2012 11:32:07 PM

Orin:

The point really is that there are an abundant number of highly qualified people, with oodles of credentials similar to doctrinal teachers, who wish to make Legal Writing teaching their careers. They are more than willing to devote all of their time and energy to classes of 35 or so to improve the various skills taught in those courses. And just to remind everyone, a good legal writing program means that those classes are teaching students legal analysis, legal reasoning, legal advocacy, oral and written communication, legal research, and also the overlooked skill of being able to teach oneself. (I'll elaborate on the last one later). The program should include upper classes as well, in legal drafting, advanced research, even scholarly writing, and constantly provide students with face-to-face conferences to review and critique and the requirements of frequent rewrites of the students' first efforts. And I would require that the subjects of the research usually should be subjects the students have not already studied in a doctrinal class so that the students constantly are working on new to them topics and have to do what lawyers really have to do...find the law of one's own jurisdiction and the issues that need to be resolved without much help. Yes, that is labor intensive, but so much more effective than the lecture course to 200 students. How much personal opportunity does a student in that large class get to articulate the analysis of an issue raised by one case in a casebook? And then hone one's ability to reason in a discussion with the prof? How often do we find students who say nothing at all during the semester of that class, and basically learn the material and any skills being emphasized on their own? So, how do we afford that kind of program? In today's legal education world, where enrollment will be declining for the foreseeable future, where the nature of law practice has changed and law firms are no longer able to afford mentoring post-graduation, when law schools are seeking ways to survive by changing their curriculum to emphasize turning out practice-ready lawyers, it means cutting back on some of niche or boutique courses that fill curricula now. Law schools too often fill their upper curriculum with interesting courses or very highly specialized courses....like sports injury law, or video game law, or my latest law review article law. With over 40 states having mandatory CLE those kinds of course can await passing the bar and taking them post-graduation. Pruning the curriculum means less purely doctrinal teachers, and adding more skills trainers....clinicians and legal writing. And probably cutting back enrollment or having that happen anyway because of declining applications of qualified people.

Posted by: Ralph | Dec 28, 2012 10:13:00 AM

Ralph, thanks for the response. It sounds like your proposal would require additional faculty to teach these small classes both in the 1L and upper level years -- all paid at the full salary of the doctrinal professors they would replace, as I understand it -- with the catch that they could not teach the larger classes that the doctrinal professors could teach.

I wonder what the costs of that might be, so let me try a ballpark approximation (with my apologies in advance if I misunderstand what you have in mind.) Let's say you have a law school class of 300, and each student takes 1 legal writing class a year. That would be 900 students per year in legal writing classes per year. If a legal writing instructor can teach at most 60 students a year -- 30 a semester - that comes to a need to hire about 15 new professors at the school. Let's say that we lower the size of the doctrinal faculty by attrition by 7 doctrinal professors to adjust for the new classes taught, so that we only need to hire 8 new professors. If we assume that the cost of a typical tenured professor -- salary, benefits, office space, secretarial, etc. -- is somewhere around $300,000 a year, that comes to an extra $2.4 million a year, or about $2,700 added tuition a year per student (spread over 900 students). So over the cost of a three year degree, with interest, it's an extra $8,500 or so for each student to take on in extra debt to pay for the change. It would be interesting to see how the market would respond if some schools adopted your approach: Would students take on the extra debt to have the extra legal writing instruction?

Posted by: Orin Kerr | Dec 28, 2012 12:56:02 PM

Rodriguez - isn't your cost of attendance on of the highest at $80,000? How can you not feel your primary concern is to cut costs, cut class size and invest heavily in helping your students get jobs that will allow them to pay their non dischargable debt.

Reform has to focus on slashing the cost to attend a school that required little more than classrooms, libraries and professors. You don't need expensive labs and equipment to teach law. How can you possibly justify this cost?

Cut cost before you start lecturing about your ideas to massage the current system.

Posted by: Susan Appleby | Dec 28, 2012 1:10:47 PM

Orin: Your math is off a lot.

The teaching load for a full-time legal writing prof in the format I described would be two semesters of legal writing, and at least one semester of an additional course -- not a large first year course, but a reasonably sized course like Remedies or Product Liability. With the decline in attendance, the doctrinal teachers would teach a two course per semester load, one of which could be a research/writing course in their field, like Advanced Resarch/Administrative Law. There also would be nothing wrong with adjuncts teaching some of the advanced writing courses, such as legal drafting....after all, that's what many of them do for a living....estate planning and drafting, for example. The key is to have whomever is teaching the advanced courses to give feedback on the assignments turned in, hopefully requiring rewrites.

In any case, my school now fits the image you portray. We have 11 full-time legal writing teachers, each of whom also teaches a smaller enrollment (e.g. 40 students) doctrinal course. We have about 15 adjuncts teaching drafting or advanced research courses, and 15 doctrinal teachers teach upper class seminars. Also, our 15 clinicians teach classes as well, in many of which there are practical writing requirements, reviewed, critiqued and rewritten by their students. We also have about 7 of us oldies who are ready for retirement or death, and probably won't be replaced when we do, as we downsize to fit the lower expected enrollment. If, in addition, we cut out some of the frills courses that some of our doctrinal colleagues teach (I won't identify what courses) and slightly increase their teaching loads from 9 hours per year, I think you can recalculate the costs, even with the increases in salaries for the LW staff. Our clinicians, incidentally, fit the Dean Rodriguez model....fee generating, so most of their salaries come from their fees; we supply the support staff and students, who may earn up to 16 hours in the clinic....criminal, tax, environmental, health law, matrimonial, immigration, etc.

Posted by: Ralph | Dec 28, 2012 1:27:43 PM

Does anyone honestly believe the problem with law school is the writing program?

Posted by: Susan Appleby | Dec 28, 2012 2:01:23 PM

Sorry that posted so many times. My phone froze!

I am not sure why innovation has to be expensive, other than everything associated with law school is unduly expensive.

But make no mistake, you need to move faster to deal with the collapse of legal education. I understand that people may be happy to lower standards to keep the money flowing from students, however, eventually everyone other than the special snowflakes will get the message.

Law is not a career that anyone should be starting now. My feeling is that no one should attend law school this year. They should look for other careers first. There simply are not enough jobs for all the graduates. Even if law school was free for everyone, half of all graduates would be wasting their time and effort on a career they will never have. The fact that they are undertaking six figures of non-discharge able debt means they absolutely should not go.

Posted by: Susan Appleby | Dec 28, 2012 4:02:48 PM

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