Thrower, S E --- "Teaching legal writing through subject-matter specialties: a reconception of writing across the curriculum" [2008] LegEdDig 40; (2008) 16(3) Legal Education Digest 37

• Teaching legal writing through subject-matter specialties: a reconception of writing across the curriculum

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Teaching legal writing through subject-matter specialties: a reconception of writing across the curriculum

S E Thrower

13 The J Leg Writ Inst, 2007, pp 3–53

Efforts to increase and integrate skills instruction with doctrinal information have been, at the least, efforts to increase student learning. Even so, these efforts largely have emphasised doc- trine, with skills instruction as the adjunct in the form of some required writing assignments inserted into the syllabus of a doctrinal course. This model — writing within the doctrinal course — has become the standard model of writing-across-the-curriculum efforts, which likely has more to do with situational factors than with learning theory.

Educators can, and have, shifted the focus from importing written skills into the doctrinal course to exporting doctrine into the legal writing classroom. Without a designated subject matter, most legal writing courses involve assignments from many subject areas. Students may start out the school year working on a torts problem; their second assignment might be a criminal matter; and their final assignment might involve constitutional law. At DePaul University College of Law, however, some legal writing sections are purposely specialised: they are populated with students who have identified an interest in a particular area of law; they are staffed with legal writing professors who have practice experience in that area of law; and they involve assignments that feature that specialised topic. Thus, students learn the skills of writing and analysis while working through the nuances of a legal specialty to which they anticipate a long-term commitment. The purposeful specialisation continues in DePaul’s upper-level writing curriculum, allowing students to continue their focused curricula after their first year. Complementing this system, professors of the first-year specialised writing sections often teach upper-level doctrinal electives, an outlet that both informs and improves the professors’ legal writing instruction.

Exporting doctrine into the legal writing classroom is an innovative way to achieve writing-across- the-curriculum goals to enhance and increase student learning of skills, particularly the skill of writing. In addition, the union of doctrine and writing within the confines of the legal writing classroom is congruent with, and extends, current learning theory. That body of work focuses on using social interaction to encourage students’ modification of their ideas; using authentic learning tasks to increase students’ sense of realism; and using topics in which students have a high interest in order to produce their best writing. Assigning subject matter specific work to students who have an interest in those subjects creates micro-social discourse communities within the legal writing classroom; this dynamic increases both students’ active engagement in their work and their learning. Accordingly, this instructional model is a subset of the learning to write in the discipline approach to the writing-across- the-curriculum movement. It is the next logical step, if an untraditional-looking one, in legal education.

At DePaul, students take a required three-semester course in Legal Analysis, Research, and Communication (LARC). LARC I and II, which students take during the first year, are taught in small sections of twelve to fifteen students. These sections are either ‘general’ or ‘specialised.’ Students in ‘general’ sections work on assignments in a variety of subject areas, often tackling issues drawn from contracts, torts, criminal law, and civil procedure. Students in ‘specialised’ sections work on assignments that are drawn primarily from a particular area of law, such as intellectual property or family law. LARC I and II faculty are full-time professors, and LARC III faculty are adjunct professors. All teachers use a uniform syllabus. Faculty members may create their own assignments, but each faculty member must deploy assignments over the course of the year that cover programmatic requirements. All sections of LARC III are general sections.

In addition to requiring three semesters of LARC, DePaul offers a wide menu of upper-level writing electives. These electives include both general and specialised courses. Over the last several years, DePaul’s LARC program has evolved in response to a combination of market pressure, student demand, and pedagogical need. The result is a purposeful curriculum that unites current learning theory with practical approaches to instruction and that stretches over all three years of a student’s legal education.

DePaul’s LARC curriculum is a unified curriculum in which faculty teach skills on the same schedule, following departmental requirements and guidelines. Accordingly, faculty who teach specialised sections coordinate their instruction, with the program director’s help, to achieve important programmatic and pedagogic goals. Teachers of specialised sections also integrate ideas and inspiration from doctrinal faculty and sometimes collaborate with doctrinal faculty when preparing and executing their LARC assignments.

In the specialised LARC sections, students do not study intellectual property law or family law or any other type of law in the same substantive manner that they would study it in a copyright or adoption law course; rather, they focus on learning the skills and doctrine of legal writing: synthesis of multiple authorities, legal analysis, research, and legal citation. The difference between the specialised sections and the general legal writing sections is that the specialised students learn legal writing doctrine through assignments, class exercises, and hypotheticals that focus on their specialty areas. The substantive law that students learn is an adjunct to their research and writing, which are the primary programmatic goals of learning legal method and legal writing.

DePaul has, in a long tradition, offered a rich menu of upper-level elective courses in writing.

Two years after improvements to its upper-level curriculum, DePaul was ready for an even bigger innovation: its faculty voted to require a third semester of LARC. This addition resulted in a tripling of the number of assignments, giving students a much deeper experience with the core skills of writing and analysis. Correspondingly, the new LARC III course absorbed the advanced legal writing and appellate brief writing courses. After several years of evolution, DePaul now has a writing curriculum in which a student must take three semesters of writing and analysis courses and may take up to three additional semesters of writing electives, some of which are specialised. If a student takes a writing course in all six semesters, that student may enrol in as many as five specialised writing courses — deep study in a specific area of law, even before the serious student’s doctrinal elective courses are taken into consideration.

In their recent, comprehensive article analysing the theoretical and curricular justifications for writing across the curriculum, Professors Lysaght and Lockwood identify two approaches to the movement: writing to learn, through which students use writing to discover and refine what they think, and learning to write in the discipline, through which students use ‘the features of written communication in a specific discipline to enter that discipline’s discourse community.’ Both approaches ultimately derive from the three major branches of learning theory: behaviourism, cognitivism, and constructivism.

These four characteristics of constructivism are not mutually exclusive, nor do they belong solely to the constructivist camp; indeed, tones of both behaviourism and cognitivism echo through them. All three of the theories share many characteristics. Indeed, four themes are common to the three major learning theories: (1) instructors should begin instruction with basics already within the students’ grasp and proceed from there to more complex material; (2) instructors should instruct through a variety of teaching methods; (3) instructors should increase and deepen student learning by having students apply new skills and by giving feedback on that application; and (4) instructors should teach students how to become autonomous learners.

The constructivist theory of learning supports DePaul’s use of specialty sections. The wisdom of grouping students with similar interests into the same legal writing classroom is demonstrated by the process, product, and social discourse brands of composition theory. Finally, specialised instruction is a category of the learning to write in the discipline approach to writing across the curriculum because it teaches each class of specialised students a discipline specific discourse.

Constructivism is the theory that students do not receive information from their teachers and then passively take ownership of that information; rather, they create new knowledge by interpreting their instruction through the lens of what they already know and have experienced. Four hallmarks identify the theory: (1) new learning depends on prior knowledge; (2) students create their own, individual understanding; (3) social interaction leads to thesis modification; and (4) learning tasks are authentic. The first two constructivist hallmarks are not unique to specialised instruction at DePaul; indeed, all of DePaul’s LARC professors use these two approaches to help students learn. That new learning depends on prior learning is the bedrock of DePaul’s first semester curriculum, which follows a stepped-progression syllabus. Under this curriculum, students work on discrete skills and receive feedback on their work before rewriting the work and incorporating it into a larger project; the new learning depends on the prior learning. In so instructing their students, DePaul’s LARC faculty fulfill both the hallmarks of constructivism and the third theme common to the three primary learning theories: effective teaching includes giving students feedback on their application of new skills.

The second hallmark of constructivism — that the students create their own understanding — is a natural gradient in the process of learning the law at any school. Legal writing professors can give a student only so much help in reading and digesting the rules and reasoning of a judicial opinion; ultimately, the student must process the information and reconfigure it for himself, thereby coming up with his own synthesis of the law and prediction of how a court might rule in a similar fact situation. There being, usually, no correct answer to these questions, all of the student’s answers are his own creations, quite different from questions that have objectively right and wrong answers, such as historical dates and mathematical equations.

The specialised sections also well satisfy the third hallmark of constructivism: social interaction while learning causes students to test their assumptions and weigh their conclusions against the assumptions and conclusions of their classmates, which generally produces better conclusions, better learning, and better writing. This hallmark of learning at DePaul has two aspects: the casual, or unsupervised, interaction and the formal, planned interaction.

The known efficacy of casual social interaction underlies DePaul’s decision to permit all of its LARC students to discuss their work with each other throughout all stages of an assignment period; they may not, however, show their written work to anyone other than their LARC professor and teaching assistant. This permitted collaboration opens the students to an almost constant conversation with each other while they work on their assignments.

The ideas and challenges that come from a classmate with a shared interest in public interest law or intellectual property law resonate to a higher degree than do the ideas and challenges of a ‘general’ LARC classmate. Difficult to identify is whether this higher resonance exists because the student on the receiving end simply respects the ideas of his specialised classmates more than he would those of other students, or because most of the specialised students feel a heightened sense of relevance and are trying harder, or because, to use the biblical phrase, ‘iron sharpens iron.’

DePaul does not rely on casual social interaction alone to accomplish constructivist hallmark number three. The mix of assignments in DePaul’s curriculum requiring both cooperative andcollaborative learning leads to planned social interaction between LARC students. Students accomplish some assignments individually, but they work on the majority — at least in the early to mid-stages — cooperatively.

The mix of assignments complements the variety of teaching techniques that all LARC faculty employ in and out of the classroom — techniques that reach visual, aural, and kinetic learners.

DePaul’s LARC instruction has its foundation in the fourth constructivist hallmark: LARC faculty all use real-world legal problems to create ‘authentic learning tasks’ because these real-world problems better prepare students to work as lawyers than do fanciful assignments.

DePaul’s model also satisfies the requirements of composition theory. While the three composition theories are not mutually exclusive, the distinct branches are easily identifiable in DePaul’s curriculum.

The first semester of DePaul’s unified three-semester curriculum is a fully process-oriented one. All students learn legal analysis in a stepped-progression approach with the focus on the process of analysis, rather than the finished product of a legal document. Under the product-oriented approach, professors give students an assignment to prepare a legal document, with the finished project due in its entirety without any intervening steps and feedback. Under the process approach, students work their way through short assignments that teach each step of analysis: case briefing, rule outlining, synthesis, analogy and distinction, factual inferential reasoning, multiple-issue organisation, questions presented, brief answers, and objective statement of facts. Only in the last assignment of DePaul’s first semester do students put all of those pieces together, in a rewrite assignment, and submit the final product. By doing this, DePaul permits all of its first-semester students to focus on one discrete skill at a time, to receive feedback on it, and then to bring that knowledge base to the next skill to be learned. The curriculum also rests on the linchpin of process-oriented learning: teachers should teach writing ‘with some attention to the process [that] writers engage in, not just to the documents that [students produce].’ This DePaul does. All of DePaul’s first-semester students, whether specialised or general, receive the benefit of the process approach to learning. With respect to some of the other assumptions underlying the process approach, the general and specialised students have different experiences.

DePaul’s method of instruction bears out the assumptions about the process approach to learning. This first-semester process approach to composition theory at DePaul largely gives way to a modified product approach in the second semester. The product approach, though not as favoured as the process approach, still satisfies critical goals.

The second and third semesters of DePaul’s LARC curriculum move the students from a stepped- progression, process-oriented approach to a spiralled, product-oriented approach. As they enter this product approach to learning in the second semester, the specialised students’ projects continue to be mostly subject-matter specific. The students must practice already-learned skills on increasingly more complex legal issues to achieve learning mastery, so having them rely on more generalised, oral feedback from their teachers and on their own developing professional judgement is both proper and pedagogically sound.

The social discourse theory of composition also undergirds DePaul’s LARC curriculum. This theory recognises the vital importance of social context to a writer’s maturation within a specific discipline and the different ways that different social contexts impact both the process and the product of the writing. Mastery learning is a key to the behaviorism theory of learning. Mastery learning in the legal discourse community involves different methods and different goals than does mastery learning in many other education and professional communities. To help students enter and master the legal discourse community, legal writing professors incorporate social discourse theory into their courses by providing social context for the work that students perform.

Teaching legal writing through specialised sections is a non-classic, but equally effective, version of writing across the curriculum. It is a subset of the learning to write in the discipline approach to writing across the curriculum. Not only do DePaul’s specialised students learn to write in the legal discourse community, but they also learn the particular language, customs, and ‘forms of life’ of intellectual property law, of family law, of health law, or of public interest law. Each of these discipline- specific areas has its own dialects, forms, and shoals that students, and lawyers, must learn and navigate. DePaul’s specialised students begin the process of that navigation at the earliest possible moment, apprenticed to an expert in both the specific discipline and in learning theory, in an apprenticeship that can continue and deepen — if they choose to take specialised elective writing courses — for the three years of law school.

Learning theory, DePaul’s practical experience, and scholarship all support the teaching of legal writing through specialised sections. Over the course of seven years, students, professors, and administrators have found the system to be successful. The benefits overshadow the few inevitable drawbacks.

For their many benefits, the specialised sections do come with some drawbacks for students. If a certificate program does not accept a student to a specialty section, the student must still take LARC, usually in a general section. Every now and then, to stabilise numbers across sections, the school has assigned a student to another specialised section. Either of these situations can produce resistance in the student.

Beyond the personal dramas of like and dislike, the limited subject-matter exposure can have a restricting effect on the students’ educations. Many students already tend to think that they know exactly what they will be doing once they leave school: what type of law they will practice and what type of assignments they will work on at their jobs. Of course, almost none of those assumptions bear out fully. Students who specialise too quickly or too narrowly sometimes wish that they had exposed themselves to a broader range of ideas and fields of study while they had the chance.

Akin to this potential regret is another form of disappointed student expectation. Specialised students’ ability to choose their legal writing class often leads to expectations about the class, the teacher, the assignments — even their classmates — that might not be reasonable and might not be met.

Students are not the only ones on the receiving end of the joys and sorrows of specialised sections. Teaching LARC through specialties presents benefits and difficulties for writing faculty, as well. At DePaul, the benefits far outweigh the burdens.

The most apparent benefit to teachers is that they can teach what they know and like; this, then, makes specialised instruction pedagogically sound from the teacher’s perspective.

Greater on-the-job fulfilment couples with the reduced labour that comes from practical experience to further decrease rates of burnout. Students who are happier with their legal writing course will assess it more positively, and positive student evaluations can enhance a professor’s career.

Outside the classroom, the benefits of specialised instruction continue to accrue to legal writing professors. The specialised sections provide writing faculty with a unique opportunity to mentor students, to counsel them as to what the field is like on a day-today basis, and to provide them with contacts in the working world.

Opportunities for overseas instruction have also developed.

These invitations did not come ten years ago, before writing faculty started teaching specialised sections and doctrinal electives; happily, they have not been limited to the faculty who teach specialised sections.

Increased visibility within the school and increased credibility among the student body also come to writing faculty who teach upper-level doctrinal students.

The system of specialised instruction is not burden-free. DePaul’s professors have experienced a variety of challenges from teaching specialty classes.

With the increased student demand for specialised LARC sections and the increased interest of doctrinal faculty in creating certificate programs, more writing faculty have to teach specialised sections than in the past.

Managing student expectations and handling dissatisfied students go with the legal writing territory, but when those expectations grow beyond the teacher’s ability to meet them, everyone becomes unhappy.

Some dissatisfaction grows from the very fact that DePaul recruited the students, and their expectations are high. Many come in incorrectly thinking that every assignment they work on will be in that particular field of law. They are not. Likewise, the Intellectual Property/Legal Writing [IPLW] professors do not teach students how to prosecute a patent or file a copyright claim; the family law LARC professor does not teach students how to accomplish an adoption; and the health law LARC professor does not teach students how to prevent trafficking in human organs. All LARC professors teach plain old legal writing skills, and this can be bitterly disappointing to a student who has made incorrect assumptions about the certificate program.

A system of teaching legal writing through specialised sections presents special challenges for directors of legal writing programs. All of the challenges relate to issues of personnel and fairness.

Hiring is the first challenge a director encounters. Practical experience in the relevant field is desirable in a candidate, but so is teaching experience. The first-year legal writing professors do not engage in the mission of teaching highly technical aspects of substantive law, for which practice experience in the field might be paramount. Accordingly, a director may lean on the side of preferring teaching experience, if a candidate possesses only one of the two qualities. At DePaul, the certificate program heads are not formally involved in LARC hiring decisions, but trying to incorporate their wishes into hiring decisions is the right thing for a director to do from an institutional perspective.

The next challenge for a director is to maintain consistent LARC class sizes; from a fairness standpoint, this is a priority. Because certificate program heads use criteria to accept students into specialised sections, the numbers of accepted students are inconsistent from year to year, and they are not always congruent with the anticipated and necessary class sizes of the LARC sections.

The number of students accepted into a specialty class or program may be greater or fewer than the target number for a section. These in-between numbers inevitably lead the director to have to even out a professor’s full load or to overload another professor, hence, invoking fairness issues for both professors and students.

Student backlash: it is a theme that every director must evaluate before beginning a program of specialised sections. It runs through every consideration of the specialised model. Directors of legal writing programs across the country daily cope with student dissatisfaction. This unhappiness almost always takes the form of students believing that they know better than the director what the goals of the legal writing department should be, but universally failing to provide any solutions for the perceived problems. That situation is only exacerbated when specialised sections are the focus of the complaints.

One complaint to the director that does have the ring of authenticity is related to curving the grades of students in specialised sections. DePaul mandates a curve for all first-year classes.

Professors with multiple sections — a full load is two sections of approximately thirty total students – curve all students together. Admissions personnel use a variety of factors to distribute students among all sections of the class, to achieve balance. The specialised sections, of necessity, are partially exempt from this balancing. The certificate program heads select the students who will be in the specialised LARC sections based on LSAT, GPA, an essay explaining why the student is interested in the specialised section, and other factors particular to the certificate program.

Whatever the difficulties, specializing the first year and upper-level LARC courses is the right thing to do for student learning and engagement. The daily and yearly challenges are manageable, and their resolution is part of what is taking DePaul’s legal writing instruction in the right direction. Purposely teaching legal writing through specialised instruction is a system that is firmly rooted in modern learning theory and that enjoys support in practice — albeit in modified forms — in several law schools.

Exporting doctrine, rather than importing writing, is pedagogically sound for students and is beneficial for professors. The difficulties in offering a program of specialised instruction are resolvable and well worth the effort for the benefits that the instruction produces.