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Robbins, K K --- "Philosophy v rhetoric in legal education: understanding the schism between doctrinal and legal writing faculty" [2008] LegEdDig 42; (2008) 16(3) Legal Education Digest 45


Philosophy v. rhetoric in legal education: understanding the schism between doctrinal and legal writing faculty

K K Robbins

3 J Assoc Leg Writ Dir, 2006, pp 108–128

If we legal writing faculty know one thing for sure, it is that what we teach is absolutely essential to our students’ success, yet it continues to be grossly, even embarrassingly, undervalued in legal education. To the practicing bar, those attorneys educated by but now outside the academy, its inferior status often comes as a surprise. For the few who leave practice and return to law school to teach, surprise turns to outrage when they learn that legal research and writing is the stepchild of the law school curriculum. Judges and lawyers consider it the ‘single most important course in law school,’ and students immediately recognise its importance to their careers. Nevertheless, roughly thirty years after their inception, legal research and writing courses continue to be under-credited and under- staffed.

Even more outrageous is the fact that legal writing faculty are eligible for tenure at only a handful of schools, and their salaries remain strikingly lower than those of their colleagues who teach doctrinal courses.

Although women comprise just 26 per cent of tenured or tenure-track positions in law school faculties generally, they comprise roughly seventy-three percent of legal writing faculty. One of law schools’ ‘dirty little secrets’ is that female faculty earn less than male faculty, but women who teach legal writing earn even less than women teaching doctrinal courses. How much less is difficult to determine because salaries for male and female doctrinal faculty are also well-kept secrets.

What we do know is that median salaries for full professors in the United States ranged from roughly USD$78,000 (Inter-American University of Puerto Rico School of Law) to USD$183,000 (University of Michigan) and perhaps higher. The median salary for legal writing faculty as of 2005 was somewhere between USD$50,000 and USD$59,999; the average was roughly USD$57,000.10 Only two per cent of the schools in the 2005 LWI/ALWD Survey pay their legal writing faculty more than USD$100,000. In 1998, the salary difference between legal writing faculty and full professors in real dollars was roughly USD$56,000. That difference is likely to be even greater today.

Given the increasing importance of legal research and writing to law students, how do we explain this ongoing disparity? At a minimum, the disparity reflects gender discrimination, pure and simple.

Stanchi and Levine explain that in the 1970s and 1980s, law schools were expanding, and there was public pressure to provide law students with more practical instruction. This need was met by the influx of highly skilled women in the legal profession, who were willing to take low-paying, low-status jobs for family reasons. As long as the women hired to teach legal writing were ‘not really faculty,’ they posed no threat to the established order. More than twenty years later, the question is what enables this blatant discrimination to continue?

The prevailing view among law school administrators and doctrinal legal faculty is that although teaching writing may be time-consuming, it is not really that hard. Legal writing teaches a process, not a substantive area of law. The belief that writing is simply a vehicle for ideas acquired outside of the writing process is so entrenched that it is difficult to challenge the assumptions behind it.

Plato, one of the earliest philosophers whose written work survives, was a contemporary of the Sophists. Plato lived a contemplative life, devoted to discovering universal truths and rejecting falsity. As far as Plato was concerned, rhetoric was manipulative and could not lead to truth. Only dialectic, a reasoned exchange of ideas between two scholars, could elicit truth, an absolute truth that existed outside of man. Since rhetoric served only to persuade, it could be neither true nor false; at best, it was opinion. Plato especially despised politicians, who curried favour by appealing to base pleasures, and lawyers, who argued false points of view that could result in juries acquitting guilty men.

In Gorgias, one of Plato’s famous dialogues, Socrates challenges Gorgias, a Sophist, to articulate the subject matter of rhetoric. Gorgias replies that rhetoric is the art of persuasion in courts of law and other assemblies. Socrates declares that rhetoric is not an art form at all; it is merely the imitation of one because rhetoric has no subject matter of its own and deals only with what is ‘likely’ to be true.

Aristotle was Plato’s best student, but he could not have disagreed more with Plato about the value of rhetoric as an independent art form. Aristotle defined rhetoric as ‘the faculty of discovering in the particular case what are the available means of persuasion.’ Unlike Plato, Aristotle thought rhetoric served justice because the consideration of opposing viewpoints could lead to truth in the courtroom.

Doctrinal legal faculty are like Plato: they take a philosophical, truth-seeking approach to the study of law. Although they do teach law students, many prefer writing to teaching and harbour a certain disdain for the practice of law. These educators believe that ‘coming to a comprehensive understanding of the law is best accomplished through logic,’ not experience. The typical law professor engages in a conversation with a student that challenges the student to articulate her position and then defend it against attack. Often the goal is to discover some sort of perceived truth about the rule of law or the policies that drove a particular court’s decision. Little or no attempt is made to relate these truths to their application in practice.

In contrast, legal writing faculty are more like Aristotle: we take a practical approach to the study of law, and we recognise that truth can differ based on the circumstances (e.g., a given memo or brief problem). Typically, we love to teach, and our goal is to expose students to the tools of persuasion: identification with the client’s purpose, thorough research, articulate analysis, and effective speaking and writing. We are less concerned about the ‘correctness’ of an argument than its effectiveness. Students have a tough time making the transition from the ‘right and wrong’ of doctrinal courses (as in the professor is right and the student is wrong) to the ‘works and does not work’ of legal writing. In teaching our students to become self-evaluators and self-editors of their writing, we teach them to judge for themselves what is right or best. Like Aristotle, we adhere to the view that the value of rhetoric lies in its ability to lead to truth, but we do not presume to teach what ‘truth’ is in a given context.

The intellectual struggle between philosophy and rhetoric that began with Plato has continued throughout all of recorded history in a variety of disciplines. By and large, philosophy has triumphed over rhetoric, and to the victor belong the spoils. Although Aristotle thought that the invention of reason-based arguments fell within the province of rhetoric, philosophy claimed logic as its own. This left rhetoric with the study of expression and style, which is today perceived to be the domain of legal writing. The effect has been to gut rhetoric’s intellectual heft. Consequently, we legal writing faculty are perceived to teach students the process of expressing the knowledge they get from doctrinal faculty. In plain terms, doctrinal faculty teach ‘the law,’ and we teach grammar, punctuation, and citation format.

In ancient Greece, where social interaction revolved around the spoken word, rhetoric was a respectable art form in spite of Plato. Greek politicians made public appeals through speechmaking, and citizens represented themselves in court. The Romans embraced and improved upon rhetoric, particularly legal argument. As free speech became less available to Roman citizens and professional orators were hired for courtroom use, the need to train citizens in rhetorical skills declined rapidly. By the first century, A.D., the art of rhetoric was confined almost exclusively to the classroom, and its focus shifted from the substance of argument to how argument should be delivered.

The birth of Christianity contributed even more to rhetoric’s fall from grace. Although Christians believed they had been called to proclaim the news of Christ, they rejected much of Roman culture, including the art of rhetoric. The early leaders of the Latin Church had been trained in classical rhetoric, but they refused to adopt a form of preaching that had its roots in paganism.

The predominance of Christian rhetoric signaled the death of classical rhetoric as a coherent discipline in the Middle Ages. Rhetoric was fractured into several discrete subjects, such as logic, grammar, poetry, preaching, and letter writing. When university education became available throughout Europe in the eleventh and twelfth centuries, students were required to take separate courses in logic, grammar, and rhetoric. Although Aristotle’s logic was useful to lawyers, medieval scholars assumed it was more helpful to philosophers in answering general questions about man’s knowledge of the world. In this way, logic became a part of philosophy, leading the way for doctrinal faculty to claim ‘the law’ for themselves.

Not surprisingly, the Renaissance humanists were largely responsible for rhetoric’s revival. They were interested primarily in human language and interaction, and they viewed rhetoric as a noble art that showcased ‘human beings at their best.’

Unfortunately, the revival of a coherent rhetoric was short-lived. In 1549, the French logician and humanist, Peter Ramus, wrote a thesis criticising Quintilian for failing to understand that the study of rhetoric was restricted to style and delivery. As a teacher of both rhetoric and philosophy, Ramus was frustrated by the overlap between rhetoric (an art form appealing to logic, emotion, and character) and philosophy (the science of knowledge acquired primarily through logic). He decided, therefore, that logic, the source of knowledge and argument, should forever belong to philosophy, while style and delivery should belong to rhetoric. Ramus’s influence can be seen today in the allocation of subjects among various college departments: logic still belongs to philosophy, and style and delivery are divided among English, speech, and communications departments.

The seventeenth century was marked by the development of epistemology, the study of how man acquires knowledge. The epistemologists rejected logic as the path to knowledge. They also rejected the medieval university system, with its emphasis on Aristotelian logic and the Catholic Church. Instead, they sought knowledge using inductive methods.

Although early epistemologists like Bacon, Descartes, Locke, and Vico agreed that logic could not produce knowledge, they did not agree on the value of rhetoric. In this way, they perpetuated the division of rhetoric that began with Ramus: the discovery of knowledge remained with philosophers, leaving rhetoricians with the sole task of delivering that information.

The epistemologists of the eighteenth and nineteenth centuries were far more enamoured of rhetoric than their predecessors, but they did little to advance its standing as a coherent and substantive discipline.

By the end of the nineteenth century, the interest in rhetoric had shifted from argument to literature. Influenced by On the Sublime, an ancient Roman treatise which attempted to define taste, beauty, and sublimity, Blair and other belletristic scholars searched for taste, beauty, and sublimity in poetry, prose, and argument. Their study of all types of literature ultimately transformed rhetoric from the study of argument into the study of literature generally.

Although these later epistemologists revived interest in the construction of legal arguments, they perpetuated the schism between logic, reason, induction and the expression of argument. That schism is represented today in the notion that doctrinal courses teach substance, while legal writing courses teach composition and grammar.

As rhetoric evolved into the study of literature, law schools were forming in the United States. These early schools took diverse approaches to teaching law. By the early 1870s, however, rationalism was all the rage, and legal educators became convinced that law should be taught more as a science than an art. In 1873, Charles Eliot, then President of Harvard University, stated in his annual report for academic year 1873-74 that ‘[a] false analogy between medical education and legal education ... had led many to believe that practitioners would make the best teachers of law.’ Medicine, Eliot said, could be learned from the bodies of the sick and wounded; law, on the other hand, ‘is to be learned exclusively from the books in which its principles and precedents are recorded, digested, and explained.’

Then a major shift in legal pedagogy cemented the schism between the teaching and practice of law. Legal treatises, which had been used to train practitioners, were set aside in favour of judicial opinions, which were chosen to discover the true law. Like Eliot, Langdell believed that law should be taught as a science that yields predictable results. Langdell had been a successful lawyer in New York, and he was familiar with the case method of teaching law that had been introduced at New York University. In the early 1870s, Langdell convinced Eliot that Harvard should adopt it. Like the early epistemologists, Langdell believed an inductive method could lead to the discovery of truth (i.e., the true principles of law).

Up until then, law had been taught through lecture or recitation (the practice of quizzing students on definitions and rules from their assigned reading such as treatises). Langdell’s new method was Socratic; he questioned students about the cases they had read for class and encouraged them to think for themselves — to articulate and critique the court’s reasoning. The nineteenth century’s formal adoption of a truth-seeking, Socratic approach to legal education was monumental; it forever changed the conception of law school as a trade school, practical and Aristotelian, to an ivory tower, theoretical and Platonic.

Once the scientific approach to teaching law took hold, the ‘art of rhetoric’ became irrelevant. Law school was about discovering principles of law, and these principles were the province of legal scholars, not practitioners. Clinical programs did not appear until the late 1960s in response to political pressure, and legal writing programs appeared some ten to twenty years later. They allow students to practice applying legal principles or truths in a given context, but they are not perceived to teach any sort of independent truth. In rhetorical terms, they teach students solely expression and style.

In order to maintain the existing power structure, doctrinal faculty must keep ‘truth finding’ for themselves. The only way to do that is to conceptualise the search for truth as an exclusively philosophical endeavour. Only then does the view of legal research and writing as a course in style and citation format continue to make sense. The irony, of course, is that legal scholars themselves engage in the rhetorical process for discovering truth — a process that they formally eschew.

While doctrinal faculty view legal writing as a course primarily about process, some have serious doubts about whether the process can actually be taught. This Cartesian view blinds them to the possibility that one can learn to write well and that writing can generate knowledge. Most tenured faculty teaching for more than twenty years did not have a legal writing course in law school, and therefore, on some level, they doubt the need for it. There is a certain inchoate belief that either one can or cannot write: if a student has made it all the way to law school and still cannot write, it is probably too late.

In the end, there is a suspicion that to devote any more time and energy to legal writing than we already do would be a waste. The problem, of course, is that knowing the law is not the same as knowing how to apply it. Moreover, not all of our students are born writers.

Since the nature of truth is independent of its practical application, those of us who teach legal writing are simply not part of the academy’s intellectual enterprise. At best, we teach a process for conveying truth, and at worst, we teach students how to engage in the process of manipulation and domination. Because most of us are women, and because we teach a process that lacks substance and perhaps even value, we are discriminated against. The reality is that we both teach ‘truth’: doctrinal faculty teach students ‘the truth’ about a specific body of law and its evolution, while legal writing faculty teach students how to interpret and apply that same truth in a specific context.

We teach a complex and sophisticated art form that combines the acquisition of knowledge — the law itself — and its application — persuasive technique. In researching and writing a memo or brief, students find and synthesise controlling law to invent the major premises for their conclusions. In applying these premises to the facts of their case, students often engage in analogy and distinction, using the facts and policies of case decisions to predict or argue for a certain outcome. At the same time, students must anticipate their audiences’ needs in the way they construct documents, frame issues, characterise facts, reason, and cite to authority. They must first suppress some of their writing instincts in order to learn the discourse of the legal community and, once they assimilate it, draw again on their own creativity. Then, and only then, do students and legal writing faculty focus on grammar, punctuation, and spelling. In sum, we teach legal reasoning as much as doctrinal faculty do, and as twentieth century legal scholarship demonstrates, that process not only seeks knowledge, it generates knowledge. We work as hard as or harder than doctrinal faculty, struggling to keep up with heavy course loads and to publish at the same time. We are major contributors to our students’ success but earn a fraction of our colleagues’ salaries.

Second, we must not make the same mistake we accuse doctrinal faculty of and believe that all we really teach is process. Instead of settling for composition and grammar, we must reclaim the substance of rhetoric and teach it. The ‘how to’ approach to legal writing (e.g., formulas and samples) that we all use is a necessary part of our teaching. However, we cannot be afraid to teach legal analysis explicitly and tread on the territory of our doctrinal colleagues. Finally, we should resist pressure to write about ‘substantive law’ (e.g., doctrinal subjects). Our scholarship, too, should explore the substantive aspects of rhetoric, and the rich world of modern rhetorical theory is our oyster.

Third, as history teaches us, we are not going to elevate the status of legal writing on its merits alone. Simply asking doctrinal faculty to elevate the status of legal writing, without more, is a lot like asking a partner to take less of the firm’s profit for the same amount of work. Therefore, our strategy must include motivating students, alumnae, and local law practices to pressure law school administrators to allocate more time and resources to legal writing. We may need to advocate for more credits, increased teaching time, smaller classes, the hiring of full-time faculty, increased writing requirements for graduating law students, or more upper-class courses. For ourselves, we may need to advocate for the same rights as our doctrinal colleagues: salaries based on merit and experience, voting rights, reduced course loads, sabbaticals, and summer grants for research.

Political struggles such as these are painful, frightening, and isolating. That alone has prevented most of us from speaking out against what we know to be unfair. But we cannot expect to be treated with respect unless we first respect ourselves. And that’s just true.


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