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Wednesday, February 12, 2020

A Commendable Shande: Bennardo on Legal Writing

Kevin Bennardo, a clinical associate professor and legal writing teacher at UNC, has a short and interesting piece recently posted on SSRN titled "Legal Writing's Harmful Psyche." He argues that legal writing professors "perceive themselves as victims of unfair treatment," and then "explores the consequences of that self-perception." In particular, he argues that this self-perception "has led to a norm of protectionism," manifesting as a sense of the group as a "family" with "a powerful sense of solidarity," that "stands as a barrier to meaningful growth within the discipline." He argues that the atmosphere of familial mutual support and loyalty inhibits internal criticism, "to avoid the risk of providing fodder that would validate the community's lesser status within legal academia" and to avoid "tear[ing] down other members of the group," and that this is wrong. "An academic discipline should not be a family in the mythical 'family-before-duty sense of the word. An overly forgiving nature may be a positive attribute in some settings, but not in the context of scholarly discourse....Legal writing shouldn't be treated as a safe space where all ideas are validated. The wheat can't be recognized as wheat unless we also [openly] recognize the chaff as chaff" by criticizing the work of others within the discipline of legal writing and legal writing scholarship.

I somehow suspect that the paper will not be well-received in the legal writing community, although I may of course be mistaken. Note that Bennardo does not challenge the proposition that legal writing teachers are treated unfairly. (Neither does this post.) I am not a member of the legal writing community, so I can't speak to whether his description of this purported self-perception is open to empirical challenge or not. Nor can I speak to whether he is right that legal writing conferences are subject to a surfeit of back-patting and omerta and a deficit of serious internal criticism, which I assume will also be a target of factual disagreement.

It does seem to me that the culture of perhaps overweening mutual support, habitual compliments, and unwillingness to engage in strong direct criticism of the work of others, especially within one's own community and especially within a community that shares many views, beliefs, goals, or premises, is hardly limited to legal writing, but has had much broader purchase throughout the academic community. I suspect that the reasons for this are varied and that there are cultural, generational, economic, and other factors. Thus, even those who agree with Bennardo's premises or are willing to accept them arguendo may still champion a good deal more "mutual support," "solidarity," and even "protectionism" (all quoting Bennardo) than he would. How much of this atmosphere is enough, how much (or what sort) is too much and ultimately counter-productive, and how much becomes less a matter of genuine mutual support and more a matter first of etiquette and ultimately of glib custom--Must one really preface virtually every response with the phrase "characteristically thoughtful?" Does it not, like "with all respect," mean less the more often and reflexively it is used? Personally, while I favor etiquette and sympathetic readings of others' statements and writing--and not just of one's academic interlocutors, but also of the third parties who are so routinely caricatured and criticized in most pieces of writing about the world at large--I find the phrase and others like it mostly unnecessary and in need of some pruning; one can be polite while still being direct, and I generally don't bother criticizing academic writing that I don't respect and/or find worthy of serious consideration, no matter how much I disagree with it, so the basic compliment can be assumed--is a worthy subject of open discussion and debate.

In any event, although I acknowledge that there is room for disagreement about Bennardo's premises, I found the piece refreshingly different, independent, and provocative, and relevant to broader discussions of the duties and norms that do, or should, apply within any academic community.  

      

Posted by Paul Horwitz on February 12, 2020 at 12:44 PM in Paul Horwitz | Permalink

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