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Saturday, October 25, 2008

What's so bad about 3-L legal-writing instructors?

Over at MoneyLaw, Jason Solomon writes that the fact the first-year legal-writing program at Penn (as at Yale) is taught by 3-L's "prevents Penn from having an 'outstanding' JD program".  Why should this be true?  He elaborates:

So Penn, it's time to spend some money on real legal writing professors. The people who head Penn and Yale's progams may be terrific, but there's only so much one person can do. The law student instructors may be doing a good job given what they know, but... they're law students.

I don't have a strong view about the "best" way to structure a legal-writing program (well, maybe it's my strong view that there is no "best" way).  And, to be clear, nothing in this post should be taken to indicate any lack of commitment on my part to the idea that it is very, very important for law schools to teach good legal-writing, and to do it well.  That said, I'm not sure -- not yet, anyway -- about Jason's "but . . . they're law students" argument.  He's clearly thought more about this than I have, but . . . Are we sure that Penn's best third-year students -- despite being just students -- aren't able to teach good legal writing well, even as well as the "real legal writing professors" Jason thinks Penn should and could hire?  How do we know this?  Isn't the "smart third-years v. real legal writing professors" question one whose answer will vary depending on, e.g., who the non-student director is, and also on the school's ranking, location, and tenure-and-voting-rights policies (because such policies, it seems to me, will affect the ability of a law school to attract and retain "real" legal writing professors)?

I can understand (easily) the argument that the Yale-Penn model is not as good as some others.  I'm a bit uneasy, though, with the suggestion that an otherwise "outstanding" law program should be downgraded -- should confront what Jason calls a "ceiling" -- entirely because it has opted for the Penn model.  Thoughts?  (I should disclose / confess, I guess, that I was taught legal writing by two very able, supervised third-year students and -- as a third-year -- taught legal writing to first-year students.)

Posted by Rick Garnett on October 25, 2008 at 05:47 PM in Life of Law Schools | Permalink


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Tracked on Oct 27, 2008 6:56:49 AM


Alex writes:

I don't think the design of a school's legal writing program speaks to its ACADEMIC REPUTATION -- at least for the few schools whose graduates compete nationally for jobs (I treat academic reputation and program reputation as synonymous). Even those schools that do not have 3Ls teaching legal writing, do not rely (at least not to any significant degree) on the scholarship of legal writing instructors to bolster those schools' ACADEMIC REPUTATION, which seems to be a measure of outsiders' preception of the scholarly productivity and importance of a given school's faculty (again at the "national law schools").

This is likely true; I don't think a school's legal writing program affects its academic reputation. However, this and other comments repeat a popular misconception about the question the USNWR questionnaire asks potential voters. That question does not ask voters to rate schools by reputation, but rather asks them to evaluate the "academic quality of the JD program". The question (at least as I read it) thus seeks information about the quality of the education a school delivers, not (or at least not exclusively) its reputation within the scholarly community. One might think this is the wrong question to ask, and that USNWR should be focusing on reputation alone (or reputation in combination with educational quality), but given the phrasing of the survey, it does seem that legal writing--as a component of the overall quality of education delivered--has a place in the equation.

Posted by: Dave | Oct 27, 2008 5:07:15 PM


In fact, most lawyers ARE professional writers. Writing contracts, letters to opposing counsel, discovery requests, memos to file, memos to supervising attorneys, law firm propaganda, letters to agencies--these are all forms of writing.

You may not be wrong that most lawyers are poor writers; and these may not be "writing" that you think much about. But lawyers are professional writers (though not ONLY professional writers), and if they are bad at it, that might just say something about legal education and training and/or a host of other issues.

My argument was (obviously) not that any lawyer off the street would be better at writing than any 3rd year Penn grad. It was that professional writing instructors who have training and experience in the genres that they are writing (plus training in teaching) are, over all, going to be better than amateurs who have a minimum of any of those things.

Let's be clear: this isn't a knock on the average 3L who is teaching LRW. You play with the hand you're dealt. And as I have argued elsewhere, 3L instructors (or fellows) may carry some benefits to the school and the program that professionals are less likely to have. But why is it controversial that writing is best taught by people who have training and experience in both writing and teaching?

Posted by: Hillel Levin | Oct 27, 2008 3:59:15 PM

I have enjoyed this discussion very much. It strikes me that arguments for and against are not so very different from the arguments for and against using 2d & 3d year law students as gatekeepers to publication. Yet the doubts about using law students to teach writing seems to find no parallel in discussions of law journal editing.

Posted by: Paul Rose | Oct 27, 2008 3:42:59 PM

I attended Penn Law and thought the quality of my legal writing instruction was poor. First, it was difficult to take seriously research and writing advice from someone who has NEVER practiced law beyond (perhaps) two summer interning experiences (I thought this especially true when legal writing instructor's comments focused heavily on proper bluebooking of briefs). Second, even keeping an open mind and thinking "hey even an inexperienced 3L might be a good writer?" - the feedback I received on my work product was unhelpful. I never developed a sense (within the context of the class) of what constitutes good legal writing (and there are many ways to convey clearly and crisply strong legal arguments). Third, unless Penn has changed its selection process, the program also suffers from the fact that current 3L legal writing instructors play a significant role in selecting the FOLLOWING year's instructors. Thus, bad apples beget bad apples. That said there are reams of judges and litigators who can't write a lick despite that being at the core of their professional duties. I am not sure how one becomes a better legal writer absent repetition. Perhaps some out there had legal writing classes in which they not only learned, as an initial matter, what qualifies as passable (or preferably excellent) legal writing, but actually improved their own writing. Viewed from that persepctive, I can't say Penn's program served me.

On the topic of whether a 3L taught legal writing program should result in a strike against the school, I think it depends on the general caliber of the school. Namely, does the school compete nationally, regionally, or locally. Places like Penn and Yale (I don't dare suggest they belong in the exact same breath - I know that would offend Brian Leiter to no end) probably believe that their students are strong enough writers to succeed without the benefit of a legal writing program taught by experience practioners. So it may be a way to save money. It may be a way to give 3Ls an experience they might not otherwise have in law school. (Implicit, I suggest schools that typically admit less strong candidates probably have a greater need to have extensive legal writing programs in order to better market their students. That is NOT to say that students who attend less competitive schools do not write as well as their peers at "more competitive" ones. (Indeed, I have no idea if they do or not) That is to say the perception of these students as weaker necessitates a more "professional-looking" legal writing program.) Or it might me sheer ineptitude on the part of their respective administrations. But I don't think the design of a school's legal writing program speaks to its ACADEMIC REPUTATION -- at least for the few schools whose graduates compete nationally for jobs (I treat academic reputation and program reputation as synonymous). Even those schools that do not have 3Ls teaching legal writing, do not rely (at least not to any significant degree) on the scholarship of legal writing instructors to bolster those schools' ACADEMIC REPUTATION, which seems to be a measure of outsiders' preception of the scholarly productivity and importance of a given school's faculty (again at the "national law schools"). In short, what goes into assessing the quality of Penn's and Yale's and Harvard's and Georgetown's and Duke's, etc. programs is very different than what goes into assessing the quality of a local or regional law school - these schools attract different types of students who have very different needs (again,at a high-level of GENERALITY).

Finally, if one truly believes that the structure of a legal writing program should affect the reputation of a national law school, then I wonder if the availability and quality of legal clinics should likewise be a strike against (or positive for) the school. Or more broadly, are there are factors/facets of law schools that deans/usnwr have thus far failed to consider in assessing the quality of law schools.

Posted by: Alex | Oct 27, 2008 3:03:14 PM

I agree with Mr. Lister's and Mr. Swaine's points. There are obvious disadvantages to being taught by 3Ls, but it's hardly the worst system out there. After a stint on the law review and a couple of clerkships, I can say that most people with JDs are awful writers and no school has found the perfect solution yet.

In partial response to Mr. Levin's point, most lawyers aren't exactly "professional" writers. If you spend most of your professional time drafting discovery objections, taking depositions, fighting with opposing counsel, making client pitches, tweaking form language in contracts, and talking on the phone, your writing skills are only going to atrophy with "experience." Most litigators probably start out as bad writers and get worse and worse as they go. Professors are a little bit better on this front, as most of their work involves actual writing, but academic legal writing is a bit different from the sort of thing that most legal writing programs try to teach.

The best legal writers who've finished law school are probably: (1) appellate judges, (2) a few practitioners who specialize in motions and appeals, (3) the minority of professors who happen to be good writers, and (4) someone fresh off of a Supreme Court clerkship. Most of those folks aren't actively looking for opportunities to teach 1Ls how to write memos and briefs. "Dave" has a good point that maybe someone fresh off of a lesser clerkship might be more realistic, but how many schools' writing programs do that?

Once you understand that Michael McConnell, Paul Clement and Cass Sunstein aren't tripping all over each other to teach 1L legal writing, the notion of handing the program off to the 20 most talented 3L writers at the law school doesn't sound so bad.

Posted by: krs | Oct 27, 2008 1:29:48 PM

This is all helpful, but it risks ignoring the thrust of Jason Solomon's original post, which I just read, and the opening and closing emphases in Rick Garnett's reply.

All things being equal, a talented and dedicated 3L writing instructor is not as good as a talented and dedicated post-grad with years of practical experience. Sadly, things are rarely so equal. And we know that the alternative to Penn's program is no panacea: the contemporary complaints, as I understand them, are (1) that recent grads have been poorly prepared for the writing they do in practice (under a system in which Penn's approach is definitely in the minority), and (2) that the average practitioner is also judged wanting by peers and by judges, meaning that one has to select even experienced instructors with some care.

This being said, I'd be willing to stipulate that Penn could improve its legal writing program. But the original question was whether Jason Solomon was correct in suggesting that there was some kind of "ceiling" on Penn's program as a result. Indeed, the payoff to his original post was that "until Penn beefs up legal writing, I'm inclined to give Penn a "4" and hope you do the same."

That strikes me as completely unwarranted, and that seemed to be what Rick was saying too. In brief, Jason got there by supposing some dyad between Northwestern and Penn in which only one could receive a "5", and relied yet again on the Princeton Review rankings and featured editorial remarks -- when to my knowledge we know nothing about how "many" Penn students complained or how many Penn (or NW) students spoke to the writing program at all. It's at least awkward to maintain that carefully selected students are not competent to teach other students legal writing skills, while some uncertain number of self-selected students ARE competent to say whether their program gives them the tools they need in the practical world that they too have not yet experienced. I think their views have to be taken very seriously, but again, the question is whether this should be used to change Penn's ranking, which I doubt those students thought they were addressing.

In general, the idea of a campaign to reckon USNWR scores so as to remark upon specific features of particular schools, with an eye toward producing reform in those features, unaccompanied by any rigorous and comprehensive assessment of all the programs, seems pretty dubious -- especially when what the schools get is just some average shorn of any detail, and they are left to guess what went into it. But it *is* helpful to discuss how to optimize legal writing apart from those rankings, and perhaps even to provide basic information about the programs to voters . . . without adorning that info with excess prescription.

Posted by: Edward Swaine | Oct 27, 2008 11:12:23 AM

HLS alum (I'm one as well):

I used to call it "clerk disease," although I certainly did not invent the term. At a time in which formalism is supposedly dead, judicial opinions nevertheless generally take the form of a document announcing the principles of law that control the case at bar. For that reason, judicial opinions tend to be limited to doctrinal claims. But, in cases brought by competent counsel who have taken care not to take positions at odds with settled law, doctrine will often provide plausible support for a decision either way. In such cases, doctrinal argument alone is not sufficient. (See Judge Posner's work for elaboration on this point. In his new book, he expresses irritation at lawyers who think that throwing case names around is a persuasive legal argument. What Judge Posner forgets is that lawyers learned this trick from the appellate opinions that they read in law school.) Law students, however, tend to be uncomfortable and unused to any modality but doctrinal argument -- that is usually the only mode in which they acquire even modest proficiency in their student writing. Clerking generally makes the problem worse because although many judges may think like Judge Posner, they don't write like him. Following prevailing practice, judges have their clerks tend to write as if they have reached the only conclusion possible under prevailing doctrine.

This point relates to what I regard as a fundamental pedagogical problem with the case method. Under the case method, students learn much more about writing judicial opinions than about writing briefs. It is for just this reason that in my upper level electives, I often assign briefs, not just opinions, and we spend quite a bit of time dissecting them.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Oct 26, 2008 11:45:16 PM

It would help if whoever teaches the class has some knowledge of pedagogy. That's generally lacking in all of higher ed. There's a huge assumption that smart people can teach other smart people - and that's jus not true.

Posted by: Anonymous Frustrated Lawyer | Oct 26, 2008 6:29:02 PM

Consensus here against desirability of having 3Ls do it. To me, that result seems absolutely right. The argument could reduce straight to the question of how important is LR to rest of career. It is surely very important in practice. It's a skill that one can't really mug up from the books/literature; most stuff one might need for a given activity/phase of practice can indeed be got together ad hoc. So LRW is different. 3Ls could assist, and the odd one may come along occasionally who is gifted pedagogically as well as done serious off-syllabus stuff involving writing - but that's rare.
Continuity would represent a massive no-no anyway. The 'effort' would start afresh each year, with new 3Ls. So even if relevant stat. evidence is produced, it could never be of much sensible application.
Having said all that, I do think that your students are lucky. In UK law schools, what is presented in first-year (and never again) is LRW-lite (very).

Posted by: Adrian | Oct 26, 2008 4:39:28 PM

Now, legal writing is taught by fellows, though I don't know whether this has alleviated the complaints.

It hasn't, though of course the current students and recent grads (like myself) don't have anything to compare it to.

Prof. Rosenthal, on a side note, would you mind elaborating on what the differences were between clerking and practice that left you prepared for an appellate clerkship but unprepared for practice from a writing standpoint?

Posted by: hlsalum | Oct 26, 2008 4:12:25 PM

Two quick thoughts:

1. Fellows v. 3Ls: true that a fellow might have little more experience than a 3L, but this is rare. When I was a Bigelow, all of my colleagues had at least a year or so of federal clerkship experience, and most of them had a year or so of practice experience as well. I think even a year of clerking--which typically involves tons of intensive writing--gives instructors much more meaningful experience than who is still in law school. I suppose fellows could be hired straight out of law school, but I think this is pretty rare; I can't think of any examples of this happening.

2. Some anecdotal data: When I was in law school, HLS used 2Ls and 3Ls to teach legal writing, and the school got enough complaints about the quality of summer associates' work that they overhauled the program entirely. Now, legal writing is taught by fellows, though I don't know whether this has alleviated the complaints. My experience was that the LRA course wasn't taken very seriously (esp. b/c it was ungraded), and I was pretty underwhelmed with the quality of my instructor.

Posted by: Dave | Oct 26, 2008 3:51:16 PM

1. Legal writing is an awfully important skill. It is probably the only skill that employers will expect recent graduates to have (except at the very top echelon of private firms that have the resources to do its own teaching). 2. Successful legal writing is a difficult skill to learn. I spent many years supervising young lawyers in a rather sophisticated appellate practice. Rarely did a recent graduate display much competence until after at least a year of work. I look back on my own writing in my first years of practice with horror, even though my work as a law clerk on judicial opinions was quite good, in my immodest opinion. 3. It is extremely unlikely that someone who has cannot write well will be successful teacher of legal writing. Yet, substantial experience is generally a necessary if not sufficient condition for being able to write well. This observation is consistent with the data presented by AP above. 4. The typical 3L has very little writing experience -- the 1L LRW curriculum, maybe a law review note, and a few memos produced at a summer job that probably were not very good. 5. A law school that hires individuals with enough experience to have a high level of briefwriting skills and the ability to teach them will confer on its students a substantial advantage in the job market.

None of this is necessarily an argument for the academic fellow model. The typical academic fellow does not have much more experience than a 3L, and perhaps even less interest in the kind of writing done by practitioners. But someone who has spent two years or so actually doing the kind of writing expected of practioners with high-quality supervision is far more likely to be an effective teacher of legal writing than someone who has not.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Oct 26, 2008 11:29:01 AM

I'm a 3L at Iowa and my LAWR instructors were a woman who was a JD from Columbia and MFA from Iowa and another woman who had been in practice for a while including in-house counsel for ACT. I think the thing about legal writing is that first of all, it's not really writing. It's training in a very specific professional skill -briefs and memos - and so the best way you can be qualified is to have experience practicing law. I think 3Ls who have done one or two summers in a firm are probably qualified as long as they additionally pass the test of being good educators. I liked the instructor who had an MFA because she was more *like* me - she's a writer, and she understands and was careful to say from the start that any writers in the class would hate legal writing immensely and likely be bad at it as well, which was a very good idea - but I don't know that she was more qualified. The main problem with the instructor who'd practiced is that her grammar could use a lot of work, but that's something most students shouldn't have trouble with in the first place (and if they do they can go to the writing center). I probably also have a bias, being someone who plans never to practice law, who does plan to write extensively, and who hasn't written a brief or memo since first year, but there you have it.

Finally, on the grading issue, our LAWR class was graded just like any other, on a curve, and I think pass/fail would have been nice. It's demoralising as a first year whose background is in writing to have to say "well yes, my GPA is very high, but that low number there, that was legal writing." It's also annoying to have something like that class count towards your GPA when it's in no way reflective of your future performance in anything, but of course for 90% of the student body it's very highly reflective, as that's what they'll be doing for the rest of their lives.

Posted by: Judith | Oct 26, 2008 9:15:02 AM

"But why are 3Ls so much worse than a lawyer two years out of law school (or less, in many cases)?"

In my first two years of practice, I probably wrote more than 50 briefs and argued many of them. Two years of full time practice makes a huge difference.

As for the grading dynamic - it may be true that pass/fail alleviates that, but then there's another issue - does making LRW pass/fail have negative pedagogical effects? My gut says yes, but I have nothing to back it up.

Posted by: Michael Risch | Oct 26, 2008 7:58:43 AM

A quick follow-up to anon2 and lawyer. I rarely see "citation to credible evidence" in any blog post. But for this issue, there is plenty of data and evidence.

Rick's question (about a ceiling on the quality of a program for purposes of Jason's Solomon's ratings discussion) is an interesting one. But on the issue raised in the comments, a significant amount of literature indicates that student-taught programs are not as effective; that most schools now use full-time, dedicated faculty; and that teaching students the skills learned in legal writing courses are a critical part of any law school's curriculum.

First, for data re: what most schools are doing and how legal writing is taught see the detailed study set out in Liemer & Levine, "Legal Research and Writing: What Schools are Doing and Who is Doing the Teaching," 9 Scribes J. Legal Writing 113 (2004) (showing that 70% have full-time dedicated faculty, less than 3% are student taught, and a small number of schools use fellows); see also Jan Levine, "Legal Research and Writing: What Schools are Doing and Who is Doing the Teaching," 7 Scribes J. Legal Writing 51 (2000). Some information is also contained in the recent ABA Survey of Law School Curricula.

This debate is an old, and now outdated, one. In the early 1980s there was some push back by law schools to having full time faculty teach legal writing (see "Should Permanent Faculty Teach First-Year Legal Writing? A Debate," 32 J. of Legal Education 412 (1982). But tons of conferences, studies etc. since then have shown that full-time faculty instruction is beneficial. Ralph L. Brill et al., ABA Communications Skills Comm., Sourcebook on Legal Writing Programs 74-75 (1997) (concluding that “[s]tudents benefit most by learning from experienced teachers who feel invested in the writing program and are committed to excellence in teaching legal writing.”). It's simply not a point of serious contention anymore. The debate is over how legal writing full-time faculty are treated in the academy (i.e., respect issues and why more legal writing faculty are not granted tenure-track, long-term contracts etc.). Jan M. Levine, Voices in the Wilderness: Tenured and Tenure-Track Directors and Teachers in Legal Research and Writing Programs, 45 J. Legal Educ. 530, 537 (1995)(analyzing survey responses from tenure-track legal writing faculty and confirming recognition of the need for legal writing professors, which has enabled some of these teachers to gain tenure-track status and provide legitimacy to the field).

There's also tons of data from publications such as the ABA McCrate Report, to the Carnegie Educating Lawyers Report, to studies done by the American Bar Foundation (e.g., After the JD) -- not to mention materials of the ALI and ALWD -- that have pushed law schools to take more seriously the teaching of practical skills and professionalism concepts that are the heart of legal writing programs. Plenty of literature discusses this. See, e.g, Emily Grant, "Toward a Deeper Understanding of Legal Research and Writing as a Developing Profession," 27 Vt. L. Rev. 371 (2003) (describing the history of LRW programs and how they have been staffed and taught); Maureen J. Arrigo, Hierarchy Maintained: Status and Gender Issues in Legal Writing Programs, 70 Temp. L. Rev. 117 (1997) (describing, in part, the benefits and negatives of the different styles of programs); Carol McCrehan Parker, Writing Throughout the Curriculum: Why Law Schools Need It and How to Achieve It, 76 Neb. L. Rev. 561, 564 (1997) (discussing a 1979 ABA Task Force Report that recommended “at least one rigorous legal writing experience in each year”).

Elite law schools have long been criticized for their failure to provide greater legal writing instruction or to take legal writing programs seriously. J. Christopher Rideout & Jill J. Ramsfield, Legal Writing: A Revised View, 69 Wash. L. Rev. 35, 40-48 (1994) (espousing the view that inadequate legal writing training is the result of short-term and short-sighted programs which do not teach law students the conventions of legal writing).

For modern legal education there is no serious argument - on balance student-taught programs do not provide the same level of instruction as full-time dedicated professional instructors. The issue is one of resources/cost for those small number of schools who have not moved to the full-time dedicated faculty model, and whether student-taught programs with gifted full-time directors can provide sufficient instruction.

Posted by: ap | Oct 26, 2008 1:15:35 AM

it's amazing how lawyers, law students, and law professors think they can toss out plausible rhetoric as if that passed for proof. re-read the post and the comments and ask yourself, "does this person even pretend to cite credible evidence?" (anon2, you are obviously the exception.)

Posted by: lawyer | Oct 25, 2008 11:47:40 PM

Putting aside whether Penn has an outstanding JD program or not (Rick's downgrading question), I tend to disagree with anon's second post and share anonprof's feelings.

Top rated legal writing programs teach significantly more than "solid writing." A legal writing program should expose students to practical lawyering skills, legal analysis and reasoning, as well as concepts of professionalism. Many of the country's top legal writing programs now contain segments in client interviewing, attorney-client correspondence, as well as oral advocacy skills. It's unrealistic to believe that on balance upper division students can teach these skills as well as attorneys who have had substantial practice experience or legal writing professionals.

For a host of reasons, in my experience, first year courses like Property or Torts or Civil Procedure are often easier to teach. The casebook method of instruction is fairly straightforward, and the depth of knowledge needed to teach the course is shallow compared to the depth explored in faculty scholarship. You don't need a world class expert. What makes teaching a first year course a challenge is conveying how to do legal analysis -- exactly the same skill that is being cultivated in a legal writing program.

Certainly motivated 3Ls can teach 1Ls about writing (the same is true for fellows). But programs are benefited by having full-time, dedicated legal writing faculty, who have had significant practice experience prior to entering academia. Having 3Ls, fellows, or even part-time adjuncts teach are all second best alternatives. I also tend to think a trait of the better writing programs is that students are graded and legal writing is not just a pass/fail course.

Many law schools agree. There has been a tremendous push from the bar and bench over the last few decades for law schools to provide better writing instruction, and most schools believe the best model is to use full-time, dedicated faculty with job security (long-term contracts or tenure). By far the most prevalent model is full-time faculty (over 65% of all law schools, over 120). Penn is one of only a few schools (6 from a 2000 study in the Scribes Journal of Legal Writing) that has a student taught program.

Students graduating from some of the more elite law schools, although gifted and intelligent, are not known for having as strong writing skills when they start practice as students from many other schools. Quite often its students who graduate from the well-respected local schools that are known for "hitting the ground running" when they enter practice. This may well reflect the rigor of the school's writing program.

Finally, Rick although I am sympathetic to your ceiling point -- I don't understand your suggestion that a school's ranking would somehow change the answer whether 3L students are better suited than dedicated full-time legal writing to teach a legal writing course.

Posted by: AP | Oct 25, 2008 11:35:30 PM

Most law schools hire professional writing instructors. A few elite schools hire fellows. Fellows have more professional experience than 3Ls in doing what they're teaching, but less than true professional writing instructors. Having been a fellow myself, and believing that I did a reasonably good job for my students, I nonetheless believe that when it comes to teaching the LRW skills, the best bet is to hire true professionals and to treat them like professionals.

Posted by: Hillel Levin | Oct 25, 2008 11:18:09 PM

Except, Hillel, by and large professionals aren't teaching legal writing - it's fellows. I'm not sure anyone would dispute that someone who's made it their life's work to teach legal writing is probably going to be better at it, on average, than someone who hasn't. But why are 3Ls so much worse than a lawyer two years out of law school (or less, in many cases)? So much worse that Jason, for instance, has suggested an automatic 20% discount on US News academic quality rankings?

Posted by: anon | Oct 25, 2008 11:10:15 PM

Top-tier 3Ls might also make for excellent supreme court justices. But we'd probably judge the president who nominates them poorly. Why is it complicated that professionals in their field are, over all, preferable to amateurs?

Posted by: Hillel Levin | Oct 25, 2008 11:01:58 PM

There are no good data. No one knows.

Posted by: anon2 | Oct 25, 2008 9:30:25 PM

I'll add (I'm the last anon) that there are also some advantages 3Ls might have over other instructors:

* students might be more comfortable with them, more likely to go to them with questions and for detailed editing, etc.

* they're closer to being 1Ls and more likely to remember the problems beginners have and the best ways around them.

* for all the talk of 3Ls having less time, assuming they have jobs lined up, they might very well have more time than fellows desperately trying to polish articles and go on the teaching market.

The fact of the matter is, legal writing isn't Property. You don't necessarily need a world class specialist in the subject to teach it. What you need is good writers who can explain the principles of solid writing, and there's no reason smart, motivated 3Ls (as I assume those teaching the class at Penn and Yale are) can't fill this role.

Posted by: anon | Oct 25, 2008 7:45:25 PM

It seems like most of the arguments against 3L legal writing instructors are equally applicable to fellow LRW instructors who, after all, may only be a couple of years older and more experienced (if that) and who are unlikely to be specifically interested in legal writing. I can see valuing dedicated LRW faculty and full professors who really specialize in the subject over 3Ls, but fellows? I don't know.

Posted by: anon | Oct 25, 2008 7:24:22 PM

Since I am a Penn Law grad I'm obviously not an impartial spectator on this post. But, I wanted to add a few points. The legal writing classes at Penn are quite small- 8 or 10 students, if I recall correctly. They are Pass-Fail with the possibility of "honors" though my understanding is that that is quite rare. Failing is also quite rare- it would take quite an effort. In a way this isn't surprising. People who would fail legal writing normally don't get in to schools like Penn. So, there isn't much of a power dynamic as suggested in #1 by Michael above. At least I didn't notice it and I never heard anyone talk about it. The legal writing instructors are supervised by an excellent experienced professor. They are selected not merely on the basis of grades but through a more substantial application process. Teaching the class is for-credit, so while it does talk a lot of time, it's in the place of some other course work so not as much of a burden as it might be, especially, again, given the small section size and the fact that each instructor has only one section. The class plans are not designed by the individual teachers but by the legal writing director. We were given quite a lot of very useful feed-back by our instructors. I found the system to work well and I learned quite a bit from it. I'm not in a position to compare it to other writing programs or to compare the quality of the legal writing of Penn grads to those of other schools with any confidence but I felt satisfied with the program and think others mostly were as well. Some students were dissatisfied with the instruction they received, of course, but this is also true of any format.

Posted by: Matt Lister | Oct 25, 2008 7:14:57 PM

By this logic, shouldn't we also try a system where bright third-years teach, say, contracts or torts? "Are we sure that Penn's best third-year students -- despite being just students -- aren't able to teach good [fill in first-year course] well?"

The post really points to the fact that most law schools still just give legal writing lip service in the curriculum. We'd think a system where bright 3Ls were asked to teach, say, constitutional law or real-estate finance absurd, but when it comes to legal writing we sing a different tune. Legal writing is a difficult skill--a lot of lawyers never learn to do it well--and allowing 3Ls to teach this (as opposed to being TAs in a class with a "real" instructor) is silly.

Posted by: anonprof | Oct 25, 2008 7:12:24 PM

I can think of at least four issues:

1. A dynamic where peer students teach and grade is not a good one. I took my core philosophy courses as an undergrad from a TA, and I'm sure that I suffered for it, for example. Add to that the power dynamic where the teacher's aren't even grad students. That doesn't mean it can't be done, but on the whole I would be skeptical.

2. I think that people telling how to write in such a way that judges will want to read should have, at a minimum, a couple years of experience in doing just that, preferably arguing such briefs to get some feedback on how well the writing was taken by the court. I realize that not all writing fellows have that experience, but I think they should.

3. Doing LRW right takes a LOT of time, much more time than the average 3L has.

4. I have learned a great deal about what our students do well and don't do well from our LRW professors. I don't see 3L's giving professors that kind of frank feedback.

Posted by: Michael Risch | Oct 25, 2008 6:53:18 PM

Student writing instructors are a mixed bag but weighted toward the bad end of the spectrum. Some of them have ego/power issues, and most of them have no experience teaching anything, and a fair number of them arrived at their position solely through the arbitrary law school grading process. In other words, they're perfectly suited to teach law students and their use should be extended to traditional classroom instruction replacing professors. Tuitions can be reduced to better reflect the actual resources allocated to each student.

Posted by: Yeah, do it. | Oct 25, 2008 6:07:02 PM

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