Alaka, A --- "The grammar wars come to law school" [2010] LegEdDig 42; (2010) 18(3) Legal Education Digest 38

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The grammar wars come to law school

A Alaka

Journal of Legal Education Volume 59, Number 3, 2010, pp343–356

During each of the major grading cycles throughout the academic year, the legal writing listserv lights up as instructors share their frustrations regarding students’ basic skill errors, and the often humorous results of such errors. The larger academic community shares that frustration. One question often asked is where the blame lies. Are our students at fault?

As with most questions posed in legal education, the answer no doubt is, ‘it depends’. Certainly, individual effort accounts for some of the weaknesses we observe in student mastery of punctuation, grammar, and style. However, the degree of effort law students display must be considered in the larger context of their educational backgrounds.

By now, law schools are acutely aware of empirical studies demonstrating that American students underperform in basic knowledge and skill acquisition, including reading and writing skills, and that a powerful domino effect might underlie the problem. Indeed, poor writing may be endemic in our society. The precise causes of these disturbing facts are difficult to pinpoint, especially when one considers that complaints about student writing skills are not new. One scholar suggests that ‘freshmen have never arrived at college with impressive writing skills’, and notes that about 25 per cent of Harvard freshmen in the 1890s were deemed poor writers who were ill prepared for college coursework.

Among factors that have been identified as contributing to the problem today are the federal No Child Left Behind Act with its reliance on standardised assessments, and the associated state education standards, which do not typically focus on written expression. As important, however, may be the theoretical shifts in English language pedagogy and the resulting teaching and curricular trends that have occurred in the nation’s English classrooms since the 1980s. These trends provide yet more support for those who advocate change in legal education, specifically more opportunities to write across the law school curriculum. They also highlight the need for doctrinal faculty to have an integral role in addressing basic writing skills – even without integrating writing assignments into their teaching methods.

Law professors across the doctrinal spectrum are likely painfully aware that many of their students lack skill and grace in writing. Those instructors who grew up in an era characterised by diagramming sentences and phonics may not be aware, however, of the significant debates that have raged over how to teach children to read, write, and learn spelling, grammar, and punctuation. During the last 20-plus years, skirmishes in ‘language wars’, ‘grammar wars’, and ‘punctuation wars’ have occurred in the nation’s classrooms.

The ‘language wars’ have been fought between educators and researchers who advocate the traditional methods of teaching reading and word recognition through phonics and others who reject phonics in favour of the ‘Whole Language Approach’. Advocates of the latter method eschew the ‘“break-it-up-and-sound it-out” approach to basic spelling and word comprehension’.

Similarly, English instructors have been debating whether they can and should teach grammar as a separate subject. On one side of the debate are those who advocate explicit grammar instruction and on the other are those who theorise that children can only learn grammar in the context of reading or writing. The latter believe that ‘students can learn grammar simply by writing’. Although advocates on both sides of the grammar wars can cite studies purporting to support their positions, the controversy has led many educators to reject traditional grammar instruction altogether.

In 1985, the National Council of Teachers of English (NCTE) formally rejected the traditional approach to teaching English by using repetitive grammar drills and exercises.

NCTE now acknowledges that knowing grammar is important to understanding what makes writing clear, interesting, and precise. The group also recognises that understanding grammar terminology affords students the ability to think about and discuss individual sentences. But the Council does not believe that teaching grammar will eliminate grammar errors. Instead, it posits, ‘lots of discussion of language, along with lots of reading and lots of writing, are the three ingredients for helping students write in accordance with the conventions of standard English’.

Although at least some English teachers believed that NCTE had later softened its stance on teaching grammar, the group announced in 2006 that its position was unchanged and reiterated: ‘Isolated Grammar Drills do not Produce Good Writers’. Citing a Carnegie Corporation study, NCTE claims that in ‘classrooms where much of the time is spent on grammar exercises, student writing suffers. This happens because, in those classes, students are spending more time underlining random parts of speech or diagramming sentences than actually composing’.

The Council’s position on teaching grammar has proven controversial. In 1996 and 2003, for example, The English Journal devoted two issues to ‘The Great Debate (Again): Teaching Grammar and Usage’, and ‘Revitalizing Grammar’, respectively.

Similarly, Whole Language theory has had its detractors.

Complicating matters is the notion that there are plural English ‘grammars’, which not all agree are suitable for teaching. Moreover, these grammar schema often conflict in that they describe English grammar differently, sometimes with different rules of punctuation and usage. In light of these pedagogical conflicts over whether or how to teach grammar and punctuation, law instructors should not be surprised by the many errors they observe.

The grammar and punctuation wars may contribute to a disturbing disconnect that exists between the value that high school and college instructors place on grammar and usage skills. Although these two groups largely agree on what writing skills students should possess, they disagree on the importance of these skills. According to a 2003 ACT survey, out of six general writing skill categories, grammar and usage skills ranked highest in importance at the college level but lowest at the high school level.

According to ACT, these data may explain why ‘a significant number of first-year college students need remedial help with their writing skills’. Moreover, test scores indicate that 46 per cent of students who took the ACT in 2002 ‘are likely struggling with such fundamental English skills as: [u]sing punctuation to clarify meaning, [s]olving basic grammatical problems such as subject-verb agreement, [and d]etermining the clearest and most logical way to link clauses’.

ACT’s 2005–2006 National Curriculum Survey also found significant differences between high school instruction and post-secondary expectations across the curriculum. Not only does this survey underscore the dichotomy regarding the relative importance placed on teaching grammar and punctuation skills between the two camps, it raises concerns about the development of reading skills. Of particular importance for legal educators, the ‘survey results indicate a general lack of reading courses in high school and a decline in the teaching of targeted reading strategies after ninth grade’. The report suggests that all high school courses across the curriculum should provide texts that challenge students to read and understand complex materials and develop students’ strategic reading skills.

Despite the value that college instructors purport to place on basic writing skills, students who perform poorly in writing and literacy in grades K-12 do not appear to catch up on missing skills once they get to college. The US Department of Education’s National Assessment of Adult Literacy demonstrates that the percentage of college students performing at a ‘proficient’ level decreased from 40 to 31 percent between 1992 and 2003. In a three-part series of essays, Professor Stanley Fish recently criticised the paucity of instruction in basic writing skills and rhetoric in college composition courses. He found that only four out of 104 composition sections at an unidentified university at which he taught emphasised training in the ‘craft of writing’. If his discovery typifies the norm, colleges may not be providing many students with the opportunity to master the art of written communication

Given these trends, it is probably not surprising that American businesses may spend as much as $3.1 billion annually to remedy the writing deficiencies of their hourly and salaried employees. It is also not surprising that law school instructors observe basic writing skill deficiencies in their students and that the bench and bar observe the same weaknesses in new attorneys. Whatever promise the NCTE’s approach theoretically holds for the nation’s children, the failure of schools to provide sufficient reading and writing opportunities continues to pose a major challenge.

Reports such as those discussed above do not bode well for the legal profession. As one scholar noted, ‘Widespread cultural changes, resulting in overall declining student writing levels and reading efforts, will likely affect incoming law student preparedness for law schools at every tier level’. The failure of practising attorneys to write clearly, concisely, and precisely can adversely affect their clients’ interests and their own credibility. The consequences of poor grammar, improper spelling and punctuation, and wordiness can range from public rebuke to unintended interpretation of written documents. In late 2006, for example, a Canadian company learned the hard way that one misplaced comma could result in more than $2 million in unanticipated costs. In 2007, the Second Circuit Court of Appeals criticised Congress for ambiguously drafting and punctuating a statute relating to federal drug offences.

However the debate about teaching grammar eventually shakes out, several points relevant to legal education are clear. First, if they were educated during a time when curricula de-emphasised grammar, law teachers themselves may not be fluent in the intricacies of English grammar and punctuation rules. Moreover, as with law instructors generally, it would be a mistake to assume that legal writing instructors all begin their academic careers as experts on grammar and punctuation. Many enhance their expertise while teaching.

Second, legal educators should be aware that our students might not know what we are talking about when we suggest they eliminate the passive voice or the improper use of gerunds. Directives to ‘review rules regarding commas’ might be useless because some students might never have studied ‘rules’ to begin with. Despite the theory that students learn grammar and punctuation by reading and writing, studies show that students are not doing enough of either, which raises the question of how students are actually learning these skills. Given the data, it is safe to assume that some students do not have a sufficient foundation to make progress on their own. They must be taught.

Although many, if not most, legal writing instructors address their students’ basic writing errors, the practice is not universal. Several factors underlie the reluctance to focus on basic skills, including the primary need to teach first year students legal analysis and reasoning skills. Addressing writing errors amplifies the instructors’ already daunting task of grading student memos and briefs and takes precious time away from their scholarship. For those who do not teach legal writing courses, the incentives to tackle basic skills are understandably slight. Yet, with traditional legal education under scrutiny and the widespread call to enhance the skill levels of new graduates, law school faculties cannot afford to stick their proverbial heads in the sand and hope that the problem goes away. Moreover, the problem is not isolated to the lower quartile of students. Many of my brightest students have, by their own admission, no grasp of the rules governing writing.

In addition to teaching legal research, analysis, and critical reading skills, legal writing courses will remain the principal setting to address skills that students should have learned before they entered law school. Students must understand that learning to write correctly and persuasively is a skill central to becoming an effective practitioner.

The legal writing classroom cannot be the only front in the grammar and punctuation wars, however. Poor writing skills must be addressed across the curriculum before concerns about new lawyers will abate. The call for increased writing opportunities in law schools echoes arguments made regarding college, high school, and grammar school curricula. The resistance to such programs is similar – teaching writing skills is labour intensive and requires small classes. Just as undergraduate faculty and administrators stress the primary importance of writing skills while simultaneously pushing responsibility for teaching composition onto adjuncts or graduate students, many law schools assign ‘legal writing’ to adjuncts, ‘fellows’, or other non-tenure-track instructors

Upper-level course faculty who recognise their students’ writing deficiencies might wonder why those weaknesses persist after a required year-long course. As with any other skill or knowledge, proficiency depends on being able to apply what is learned in one context to other relevant contexts. Understanding the difficulty of such ‘transfer’ is a necessary beginning for those who wish to go beyond bemoaning their students’ lack of skills.

Without realizing it, perhaps, casebook faculties already employ strategies to encourage this transference. In particular, the use of hypotheticals to test students’ mastery of particular doctrine encourages students to apply what they learn to new situations. Thus, students learn that just as Fact A + Law B = Result C, so can Fact D + Law B = Result C, if A and D share certain legally significant similarities. That this method is used across the curriculum reinforces the idea that similar critical reasoning skills must be employed to resolve a variety of legal problems, whether they arise under tort, contract, or employment law. The repetition of the reasoning process throughout the law school curriculum, including legal writing courses, solidifies the ability to utilise the technique and ‘think like a lawyer’. Similarly, it reinforces the importance of doing so.

Just as a symbiosis exists between the legal writing and doctrinal classrooms when it comes to the development of critical reading and legal analysis skills, so, too, can students learn the importance of writing well in their doctrinal classes. But as it stands now in many institutions, the message for students, regardless of what one expressly says, is that grammar, punctuation, and style are important in only one sphere – the legal writing skills courses. It is not surprising that students appear not to have studied ‘legal writing’ at all once they finish their first year.

Too often, essay exams in doctrinal classes reinforce the misperception that ‘it is the thought that counts’. To disabuse students of that notion, professors who teach those classes need not dispense with the timed essay during which students dissect the legal issues presented in hypotheticals, and then articulate and apply legal rules without concern for presentation. As an alternative, however, take-home exams can serve the same purpose while allowing students to focus on – and professors to grade – language and presentation. Doing so would also mimic the ‘real world’ of practice, clerkships, academia, and other settings, where written legal analysis is judged in the context of its presentation.

Casebook faculty can also educate students about the potential impact of writing skill weaknesses through the cases they assign. Many contracts, wills, trusts, and other writings are scrutinised in casebooks precisely because of technical errors, whether the location of a comma or the choice of particular language. Highlighting those aspects of the assigned cases and devoting classroom time to group rewriting projects to cure the errors reinforces the concept that technicalities of language and punctuation do indeed matter outside of writing skills classes. Drafting an ambiguous contract provision and asking the students to fix it in class, for example, would engage students in a writing exercise without over-burdening the instructor.

When faculties who teach statutory courses devote time to the structure of the law, and the purpose and consequences of particular phrasing and punctuation, they are engaged in precisely the type of contextual discussion about grammar, punctuation, and usage that Whole Language mavens would advocate. The additional benefit is that mainstreaming discussions regarding writing techniques encourage the transfer of writing skills. Students will ‘see’ writing skills outside of the narrow legal writing context.

Doctrinal courses present a natural setting for discussing grammar and punctuation for another reason. Law students become conditioned and motivated to ‘learn the rules’. But as they learn the principles of contract formation, they can also strengthen their understanding of grammar, punctuation, and style, thus bridging the gap between theory and practice, doctrine and writing.

Finally, law school administrators should also evaluate the institutional support for language instruction. Even in these times of strained budgets, hiring ‘writing specialists’ or other experts who can work individually with particularly weak skilled students might need to be a critical component of any broad-based education reform effort. In 2008, 43 law schools reported employing full or part-time writing specialists and 31 reported having a formal writing centre in the law school in connection with the legal writing program. Writing specialists spend the majority of their time in one-on-one student conferences and group workshops. Although their specific duties and job descriptions vary by program, the essential job of a writing specialist is to assist students with basic grammar, punctuation, and usage. While they might spend most of their time with first-year students, most writing specialists also assist upper-level students. If ‘[w]riting today is not a frill for the few, but an essential skill for the many’, writing centres staffed by professionals who can focus individual effort on the mechanics of writing well may have to become as commonplace as law journal offices in law schools.

Though law schools cannot fill the gap between what students should have learned in grade school, then had reinforced in college, law schools can provide motivated students with the opportunity to learn better communication skills.

The next time students submit assignments with poorly structured sentences, law school instructors can reflect again on the question of who is at fault: could these students be victims of the grammar wars? Knowing that they could be, the next logical question focuses on how to help them overcome the impairments they have suffered as a result.