David Super on Teaching Persuasion in Law School [UPDATED with David Super's Response]

David Super has an interesting post at Balkinization, urging law faculty to respond to the Trump administration by remaining engaged in the “struggle for justice.” In particular, Super explains that “Whatever else one might say about this election, it certainly represents a monumental failure of persuasion.” Thus, law faculty should pay more attention to teaching means of persuasion, which, he says, have gotten “short shrift in law school curricula.” Thus,

I fear many students have inferred from the way many schools treat the Legal Practice/LRW course that persuasion does not require special study. 

By rethinking the way we teach persuasion, law schools can both improve the practice-readiness of our graduates and better-equip those so inclined to effectively champion nobler values than those that prevailed in the last election.  This may require rethinking how we structure and present our Legal Practice/LRW courses – and the respect we show to those that teach them.  Teaching advocacy as brief-writing and formal oral arguments ignores many of the skills that matter most in practice. 

These challenges might well merit an upper-level course.

I certainly agree with Super’s emphasis on the importance of teaching persuasion, but it is surprising, to say the least, that he does not mention clinical and simulation teaching, which specifically focus on many of the persuasive skills he identifies.

It is even more inexplicable because he teaches at Georgetown, which has one of the most extensive clinical programs in the U.S., including a Federal Legislation Clinic, as well as Graduate Clinical Teaching Fellowships, leading to an LLM in advocacy.

Clinical and advocacy course were mostly marginalized when I began teaching in the 1970s. We have made much progress since then (although Brian Leiter continues to exclude clinical professors from his reports on lateral hiring), but I guess there is more to be done.

UPDATE: David Super responds:

I completely concur that clinical legal education and simulation courses play an important role in improving our graduates' skills in persuasion.  These courses are invaluable, and clinical and simulation instructors, along with Legal Practice/LRW instructors, are likely to be among those most attuned to the practice of persuasion on most law faculties.  The broader range of advocacy modes in these courses -- from traditional criminal and civil litigation to a variety of administrative, legislative, ADR, and community-based advocacy -- is particularly praiseworthy as it can help break students out of the too-narrow view of persuasion's role that can arise in doctrinal courses.  I omitted clinical and simulation courses from my piece not because of any doubts about their value but rather because the piece was already quite long and my perception is that Legal Practice/LRW courses are marginalized, or so over-tasked as to make proper attention to persuasion difficult, in more schools than clinical programs.  I would like to see schools providing every student with a solid foundation in persuasion through a strong Legal Practice/LRW course and then make advanced instruction in persuasion available in a range of formats, including clinical, simulation, and podium courses.