Law professors and lawyers who have blogs (or, indeed, most any other kind of bully pulpit) like to talk about reforming the law school experience. One of the reforms most commonly proposed is Making Legal Writing More Important. In Legal Writing classes and only in them will aspiring lawyers learn the skills that are Really Important for Success in Practice. Down with the eggheaded doctrinalists, with their "tenure" and their three and four-credit classes (Really Important Subjects should be given three credit, at a minimum) and their allegedly important "scholarship" and graded classes and their other caviar-swilling aristocratic ways! Up with the proletariat, who do the real work of educating lawyers! Indeed, near as I can tell from my admittedly haphazard impressions of the legal reform blogosphere, "Let's Make Legal Writing More Important" is a vanilla platitude akin to "Puppies are cute" and "Chocolate is yummy."
Except... such blog posts inevitably set your loyal contrarian correspondent's teeth on edge.
I went to a forward-thinking institution that tried to make Legal Writing Important. It is true, I believe that they did not normally grant the legal writing faculty tenure, and my Legal Writing professor left (to howls of protest) while I was there because my law school would not let him teach doctrinal classes, reserving that honor for the tenured and tenure-track champagne-swillers who published law review articles in the relevant discipline. Legal Writing classes were also two credits instead of four, a fact that again occasioned howls of protest from most of the students who were not me.
The heart of the problem lay in that in Legal Writing classes that are actually important, professors have two goals that are directly in tension with one another: first, to get everyone up to some bare minimum of competence so that not even the lowest-ranked students embarrass themselves in their summer clerkships and first jobs; and, two, to generate a forced curve along which it is easy to sort students into A/B/C categories. In schools where Legal Writing is not actually important, Goal #1 is quite easily accomplished. One gets lots of drafts of a memo and a brief, which means lots of revisions, lots of hand-holding, lots of bites at the apple, and everyone eking out a nice pretty P for Pass. But at schools where Legal Writing is actually supposed to be important, all of this hand-holding tends to result in extraordinarily flat curves. Keep in mind also that 50% of the class at most American law schools scored within two or three LSAT points of one another and is similarly well matched in terms of work ethic as measured by undergraduate GPA, again pushing curves toward flatness.
So what is a well-meaning Legal Writing instructor to do? One could cut out some of the hand-holding and generous multiple draft policy, but that might mean that some students would have trouble attaining Goal #1. Instead, often as not, mine tended to keep the generous rewrite policies in place, but instead grade us rigorously for compliance with arbitrary or entirely false grammar and style rules. My favorite entirely false rule was said instructor's stubborn instance that passive voice was always wrong, when in fact it is often stylistically undesirable but not technically wrong. He also had the charming habit of insisting that verbs in the pluperfect -- e.g. "Professor Throttlebottom had addressed the Federalist Society once before he gave the keynote speech last year" -- were actually passive and thus marking them wrong.
I am actually writing this post in a fit of PTSD because my professor also marked us down for using "since" and "because" interchangeably. I suspected then that this rule made no sense whatsoever, since the New York Times and much of the rest of the respectable world seemed to be with me. Today Eugene Volokh weighs in and informs his blog readers that writers have been using "since" to mean "because" since approximately 1450. My fellow offenders on this score include Shakespeare, Swift, Defoe, and Austen. While it is nice to be proven right, I can't help but feel a bit sorry for law students who may be caught up in similar experiences now. Also, I'd like to try to prevent them from spreading if I can.
Finally, I suppose I should pull apart some of the dimensions of "importance" that I have deliberately muddled together for maximum comic effect. I suppose my core argument here is really one against letter grades, at least at the many American law schools at which most students fall within an extremely compressed range of the I.Q. and conscientousness curves.* If one takes away letter grades, then I'm not sure what argument remains for making Legal Writing worth more credit hours. The arguments against granting Legal Writing profs tenure are perhaps more complicated. Because I'm inclined to oppose tenure for even pointy-headed doctrinal profs, I suppose I'm not the best person to expound on why it isn't necessary to expand the institution. But inasmuch as many Legal Writing professors' arguments for it come down to "You need to raise our status vis-a-vis professors of doctrinal classes because our subject is more important!", I don't find their pleas convincing.**
*This is perhaps a separate post, but I don't think the same argument applies against grading in doctrinal courses. High-stakes exams do generate pretty bell-shaped curves pretty easily, which is why doctrinalists find them useful. I suppose also that Goal #1 is less important here. Minimum proficiency in Crim Law isn't important to a future practictioner of Corporate Law. There is the bar, but the standard prep courses are pretty well designed to bring people over minimum competency thresholds.
While these facts are well-known to regular readers of this blog, I am married to one eggheaded doctrinalist and work for another, which I suppose might indicate conflict of interest. Maybe, although I held these views on not making Legal Writing more important years before I met either. Also, on information and belief, neither swills champagne much and only one of them likes caviar.
**I suspect there is a Baptists and bootleggers dynamic at work here. Many of these people want tenure because they want more money and job security. The bits about how their subject is really, really important may well be a polite rationalization, even though most of these people wouldn't admit it to themselves. Fair enough. I'm attacking them on their Baptist claims. My husband has perhaps better responses to the bootlegger claims.