Paul L. Caron

Wednesday, September 26, 2007

Gordon Smith's Advice for Erwin Chemerinsky: Concentrate on Classroom Instruction

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Gordon_smith_3Gordon Smith (Professor of Law, Brigham Youg University, J. Reuben Clark Law School; Editor, Conglomerate):

Following the pattern established by Paul and Bill, my "single best idea for reforming legal education" is actually a cluster of ideas captured by a simple admonition: concentrate your resources on what law schools (should) do better than legal employers – classroom instruction.

Corollary #1: Do not create a legal writing program, moot court competitions, student-edited law reviews, clinics, or any other co-curricular offerings. In other words, ignore Bill Henderson's suggestion to solicit advice from legal employers. Allowing practicing lawyers to drive educational reforms is what got us into this mess. If you feel the need to teach "skills," develop an externship program, which will expose students to real legal problems and forge relationships between your school and potential employers.

Corollary #2: Improve the quality of classroom instruction. With all of the money you save by eliminating the legal writing program and co-curricular offerings, you can invest in small class sizes and light teaching loads. Make excellence in teaching a real expectation for promotion and tenure of your professors. Train them to be good teachers, and give them the support required to develop innovative teaching materials.

Corollary #3: Provide all of that improved instruction in two years. In the U.S., the pressure to move to two-year programs has been building, and, as my new dean pointed out to me recently, the globalization of law practice will increase that pressure, as American training (seven years of university education) is placed in competition with international training (five or six years of university education).

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Over at TaxProf Blog, Paul Caron has asked readers to write in with advice for Dean Erwin Chemerinsky to consider before he takes the reigns as the first dean of UC-Irvine's law school. One would expect some people to submit [Read More]

Tracked on Sep 27, 2007 3:25:15 AM


As Peter suggests, I think Gordon's distinction between "analysis" and "writing" is telling. A properly-constructed legal writing course would do a better job than a doctrinal course in teaching the kind of legal analysis real lawyers engage in (as opposed to the kind that law professors engage in).

What would be more useful to a real lawyer? An understanding of how the Coase Theorem affects how we think of nuisance law? Or an understanding of how to research and craft a persuasive brief on a real nuisance issue? The suggestion that the latter somehow does not require any "analysis" seems to badly misunderstand the kind of analysis that lawyers actually engage in.

And as to the comparative advantage point, I think that is a complete cop-out. Yes, teaching good legal writing is incredibly difficult. But that just means that law firms are even more unable to do the job correctly. How many times did a senior partner give you detailed markups on your brief, sit down with you for 30 minutes to tell you how to improve your writing, give you time to read articles on brief writing, etc.? I thought so.

Again, teaching legal writing correctly is difficult and in many cases done poorly. But the solution is to improve the teaching so that law schools can actually do what they claim to be doing, i.e. training lawyers, rather than simply tossing up our hands and passing the job on to the firms, without any plausible account of how they could do any better.

Posted by: Jody | Sep 30, 2007 10:06:23 AM

It's quite possible that legal education would not be impaired by doing away with student-edited law reviews. They're nice, but they benefit only the top 10% or so plus whoever succeeds in writing on. But moot court and legal writing? Sorry, Gordon, but those classes teach skills that are absolutely necessary for anyone who intends to practice law. If law students don't learn those skills in law school, they'll have to learn them by trial and error as practicing lawyers -- at the client's expense.

I know you don't denigrate those skills; you just think that teaching them should be someone else's job. A reasonable person might agree that it doesn't matter where the students learn the skills, as long as they learn them. The trouble is that the "someone else" who would teach those skills doesn't exist. So if law schools don't teach them, then they won't get taught.

Posted by: Ray Ward | Sep 27, 2007 5:45:03 PM

Ah, I see -- it's about "analysis" rather than "writing." But I'd contend that casebook profs are not better than legal writing profs at teaching the legal analysis that lawyers engage in . Casebook profs are better at analysis that generates abstract rules. Legal writing profs are better at analysis that resolves discrete, concrete problems. It may be a real shame that the field is even called legal writing. That (not rationalization) is why I resort to calling what we do rhetoric. Developing the most useful means of persuasion in specific, concrete situations is what rhetoric is and has been for 2700 years, and it is what lawyers do. Perhaps that's why my suggestion that law school be 2 years of legal writing and clinical education was no more off the wall than your own. If it's what lawyers do, why do future lawyers need even to learn the essentialist, abstract sort of analysis that casebook profs engage in? But I think law students need both, and any supposition that they won't get both is almost purely hypothetical, and that's why now I think I really will bow out. I don't need to answer questions that will never arise. That's a very rhetorical way of thinking. The essentialist, on the other hand, spends an awful lot of time thinking about hypotheticals that will never arise in any courtroom in the land . . .

Posted by: peter | Sep 27, 2007 3:30:07 PM


I know that you have given up, but for the benefit of those who are still reading, I will issue a few last points of clarification.

Everything you wrote in your first paragraph seems right to me. And I also agree with you that my proposal is both radical and undeveloped. That was the point of the assignment, right? To be provocative? Certainly my proposal is no more radical than turning law into an undergraduate degree or rethinking the tenure system.

But you miss the point if you think that my argument is that "we casebook profs do everything the skills profs do better than they do." The point is not that "casebook profs" are better at teaching writing than legal writing instructors or better at teaching practice skills than clinicians, but rather that law schools are particularly good (compared to legal employers) at teaching legal analysis and not particularly good (compared to legal employers) at teaching "skills." In a world of limited resources, law schools should emphasize their comparative advantage.

Posted by: Gordon Smith | Sep 27, 2007 12:44:43 PM

I'm not changing the terms of the debate. I'm trying to put practical reality into it. Legal writing has evolved during the time since I graduated (in 1984) from teaching done (if it was done at all) by students or adjuncts through the use of artificial, canned problems and formalistic templates into training in the writing of real legal documents by full-time professors with extensive experience in writing those documents. Every school is at a different stage of development on this continuum. That one of your commenters over at Conglomerate, therefore, considered his legal writing education training in formalistic trivia, doesn't surprise me. It might have been. But that this continuum describes a trend is, I would submit, undeniable. That this teaching takes place in school rather than in the office also allows greater consideration of the purposes and strategies of the practices being taught, because the economics and the mind-set of the office don't permit such meta- reflection.

What do lawyers do? They are rhetoricians; they practice the arts of persuasion. They are, in fact, the modern analogs to the Sophists. That you suggest that casebook profs engage in applied rhetoric therefore shocks me. Casebook profs are the Platonists, the Essentialists, in contradistinction to the practitioners and the teachers of practice, who are the Sophists and Anti-Essentialists. Casebook classes strive to generalize; practice strives to resolve the particular.

These are generalizations, but they reflect profundities that I cannot begin to address in this forum (or a this time). But I do have to say that if anyone is changing the terms of the debate it is you: you post this radical proposal contrary to a 25 year trend, defend its apparent absurdities by continually explaining that there are details you hadn't had the space or time to mention (how in the world are you going to teach writing in your contracts class, and do you really think it's going to approach the quality of the teaching of writing and persuasion that I engage in with my students?), justify it by suggesting lawyers will just pick up the slack, claim you really do understand what the legal writing professors in this country do, and then just keep shifting the point so you can say it again and again: we casebook profs do everything the skills profs do better than they do. Okay, I give up.

Posted by: peter | Sep 27, 2007 11:34:09 AM

Peter: "Legal writing is now more often than not a course in applied rhetoric, something new in law schools and, therefore, rapidly evolving."

I have taught at six law schools, and I have interacted with legal writing instructors at many of those schools. (Of course, those days may be at an end with this post.) In my experience, legal writing instructors are dedicated and hard working. They also genuinely believe that they are adding something distinctive to the educational process of young lawyers. And, in fact, I believe them. They are doing something distinctive because they have been assigned the task of teaching legal writing. The whole thrust of my post is to question whether legal writing programs are the right receptacle for this assignment.

Peter changes the terms of the debate by portraying legal writing as a "spanking new field" featuring courses in "applied rhetoric." This sounds like something quite different from the "traditional" legal writing course. In short, it sounds like the assigned task is being redefined. And that raises some troubling issues.

First, it sounds like an implicit admission that the "traditional" legal writing course was a failure. And if that's true -- if we feel need to create a new field -- we should be willing to justify that creation. So how does this course in applied rhetoric add to substantive law courses, which even in the form of the "19th century model exemplified by the socratic classroom" look a lot like applied rhetoric? Also, if law schools knew that they were creating "programs in applied rhetoric," would they hire the same people that they are hiring to create "legal writing programs"? The bottom line is that Peter's sales pitch for legal writing raises troubling questions of legitimacy for the enterprise.

Alternatively, this "new" enterprise could be the same old wine in new bottles, and the notion of "applied rhetoric" is simply an attempt to justify legal writing's existence by making it sound more intellectually rigorous. But I suspect that you won't like that characterization.

Ralph: Please tell me that you don't really believe those are effective analogies. This is only a blog, but some minimum level of credible discourse is still possible.

Posted by: Gordon Smith | Sep 27, 2007 10:57:46 AM

The problem with Smith's advice to Dean Chemerinsky is that it doesn't go far enough. Let 'em learn how to be lawyers on someone else's turf. Professors have too much to do as it is. There are too many damn students, and the demands are cutting into the time needed to prepare published pontifications, not to mention the sniping academic pretenders in the clinical and legal-writing "faculties.

In fact, why do law students even need classes? If they're not smart enough to learn the law by reading it, they don't belong in law school anyway.

Have the students get their books online and leave the scholars alone.

The law is not for lawyers.

Posted by: Andy Starkis | Sep 27, 2007 10:13:16 AM

Why stop with revising law schools? We could speed up on solving the problem of not enough doctors by eliminating all those clinical courses. After all, all doctors need to know are the basic theories of medicine. They don't need to practice cutting open cadavers or doing other medical procedures while in med school. And they will get ample opportunity to get that experience while they do their internships and residencies. And engineers don't need to do any actual structural design while in school. Lectures and reading should enable them within a year or two of graduation to design great bridges. Archtecture students doing models...nonsense. The theories of Frank Lloyd Wright and Mies should be sufficient for them, straight out of the box, to design your new home or even a forty story building. Teachers shouldn't have to do practice teaching while in school before they start teaching; accountants need not actually do any analysis if they are taught the theories of accounting. Shall I go on?

Posted by: Ralph Brill | Sep 27, 2007 7:12:51 AM


What you're essentially doing is outsourcing the training in lawyering skills the market is demanding from law grads. That seems short-sighted to me, especially since your importation of writing into the substantive courses is an acknowledgment that the education and the training are inextricably connected.

Moreover, I suspect your conception of legal writing is as much a straw man as was the socratic classroom at which I aimed my jibe. Few people outside the legal writing courses that are now in the mainstream understand what they do. One commenter over at Conglomerate (who is exemplary in his willingness to generalize from his own experience and stop there) dismissed his legal writing course because it was simple-minded and formalistic, especially in contrast to the brief-writing he did in Civ Pro, which he experienced as an indoctrination into the profound arts of rhetoric. He and you should realize legal writing is a spanking new field that did indeed start out in ways that too often resulted in simple-minded and formalistic approaches. I've seen those ways of teaching my subject, and I reject them, but the field has changed profoundly in the 12 years I've been teaching (and essentially had only begun when I graduated 23 years ago without a clue how what I'd learned in law school actually was employed in practice). Legal writing is now more often than not a course in applied rhetoric, something new in law schools and, therefore, rapidly evolving.

I suggest, in short, that you learn more about the field. Even my own casebook-course colleagues once assumed I teach grammar and style and the formalities of memos, briefs, and letters -- not substance, analysis, and persuasion. Moreover, legal writing professors are at the front of the writing across the curriculum movement, so they would be your allies in bringing writing into the casebook courses. It would, I respectfully submit, have to be as a supplement to legal writing courses. I would love to work with my colleagues at ways they could usefully get their students writing; I would never expect them, however, to both cover what they need to in Civ Pro, for example, and to do what I do.

Of course the market still thinks legal writing stinks. Most of the market still thinks law school is a monumental waste of time. But I'll tell you one thing -- the employers who hire our students are genuinely impressed by their skills, and I was an ignorant blank slate back in 1984 compared to the students I've taught. There's a long way to go, however, and it would be self-defeating if law schools abandoned the journey rather than pushed harder forward.

Posted by: Peter | Sep 27, 2007 3:59:44 AM

Advice for Dean Chemerinsky:

Lawyers are professional writers. Yet, most lawyers have horrible writing skills and produce disjointed and ineffective work product. You can fix this.

Though you must accept that most students who matriculate into your school have never been taught to write, if those students graduate as bad writers you and your faculty will have failed them. Communication and critical thinking are to the practice of law what fire control and maneuver are to the military officer. They are the basic tools that one must master in order to succeed.

Since written communication is such an important aspect of any lawyer’s work, I suggest that you make legal-writing skills an important part of your curriculum. And if you follow my advice, I believe that you will discover that good writing skills correlate directly to improved critical-thinking development and organization.

In his letter to you, Professor Gordon Smith refers to legal writing as a co-curriculum course, and he suggests that you focus on things that “law schools do better than legal employers – classroom instruction.” He misunderstands the problem. Law firms teach basic writing skills because they need lawyers who can write, but they can’t find adequately educated law school graduates.

I suggest that you require four semesters of writing instruction and that you get expert advice – e.g., Bryan Garner and Wayne Schiess – which can be used to form an adequate legal-writing program. Do not to focus only on litigation, but also on drafting, grammar, and editing. Finally, enroll advanced writing courses as electives.

Posted by: Bradley | Sep 27, 2007 2:44:29 AM

In 30 years of law practice I saw writing of younger lawyers become more convoluted and less clear. Many had no concept of the power of a simple declarative sentence.

Being a perennial optimist, I was involved in recruiting for twenty years. I finally gave this up after nearly drowning in the rising tide of mediocre writing samples.

The worst of these samples were usually from some legal writing seminar.

Posted by: David | Sep 26, 2007 10:44:41 PM

Paul Caron asked me to write a post of 250 words or less, so charitable readers will understand why my "single best idea" is not fully developed. If you would like to read more, we had a bit of discussion of the proposal over at Conglomerate, where I posted a link to this page. One need not have a vast surplus of imagination to understand that "Improv[ing] the quality of classroom instruction" might entail legal writing, and I expand my discussion on that in the comments at Conglomerate. To Mark Wojcik (above) I would respond: the best legal writing program in the country would be one in which legal writing is integrated with the study of substantive law.

Peter's comment and questions are wonderful. The short answers are "yes" to the first question and "no" to the second. With regard to the first question, we probably would agree that law schools are quite responsive to market demands. If that continues -- and why wouldn't it? -- I would expect to see a movement toward two-year degrees ... probably fairly soon. At that point we have to ask ourselves what happens during those two years. You suggest a law school experience filled with legal writing and clinical training, which sounds to me a lot like the old apprenticeship model of legal training, except that it occurs in a law school rather than in a lawyer's office. In my view, law schools can add value to a lawyer's education outside of the "skills" framework. You might disagree, but you would be rejecting the entire history of formal legal education as misguided. For more on the allocation of skills training between law schools and practicing lawyers, see this other post from earlier today on Conglomerate. Oh, one last thing for Peter: don't limit me to the "19th century model exemplified by the socratic classroom." That's a straw man, and if you read my post, you know it.

Posted by: Gordon Smith | Sep 26, 2007 9:53:45 PM

Prof. Smith’s bizarre recipe for improving legal education reflects how out of touch he is with the practice of law and the needs of the legal profession. That disconnect is perhaps best illustrated by his notion that law schools provide externships to students in lieu of legal writing, clinical and co-curricular skills programs. What law firm will want to employ a student, as extern or anything else, who has had no training in how to research or write like a lawyer and who has had no training in lawyering skills before being dropped at the firm’s doorstep? Or does Prof. Smith think that busy law firms will step in and become the educators of law students who have not been trained how to research, write or perform any of the skills of a practicing lawyer? Don’t bet on it. While any good lawyer needs to know the theoretical underpinnings of the law, the legal profession and the people it serves also demand lawyers who are highly skilled practitioners. And the teaching of lawyering skills must begin in law school and not after graduation. Prof. Smith’s bogus advice on legal education sounds an awful lot like the “Think System” of that other charlatan, Prof. Harold Hill, a/k/a “The Music Man.”

Posted by: Frank Gulino | Sep 26, 2007 9:24:48 PM

Good grief. Based on this one post, I would conclude that Professor Gordon might be one of the dumbest people in all of legal education, and I would advise everyone I know to avoid BYU law school if he's representative of the intelligence level of its instructors.

Why would you suggest eliminating the teaching of what these aspiring lawyers will actually be expected to do, especially when the market in which you are trying to place them puts a premium on such education? Here's an idea, perhaps we should eliminate all instruction in Securities law and instead teach students how to bake cakes. That would make as much sense as eliminating legal writing programs.

What an idiot. And frankly I can't imagine anyone being more the antithesis of a "luminary" than Professor Gordon. I know Erwin, and I'm quite confident that he would immediately recognize this advice as ridiculous.

Posted by: Kierkegaard | Sep 26, 2007 7:05:08 PM

Prof. Smith,
Your comments well demonstrate why I'm glad it is the ABA that accredits law schools and not the AALS.

Posted by: Wayne Schiess | Sep 26, 2007 4:55:42 PM

I am a legal writing professor. Putting aside the criticisms obvious given my role, there's this: how can you suggest at one and the same time that

(1) law schools should radically remake themselves by cutting out clinics and legal writing programs in defiance of practitioner's demands for law grads with actual lawyering skills and

(2)law schools should radically remake themselves by cutting out the third year because globalization demands it?

Aren't both practitioners' demands for law graduates with some actual lawyering skills and globalization's demands for lower professional license requirements both market demands?

Wouldn't you satisfy the market demands better by making law school a 2 year program in legal writing and clinical practice, thus cutting out entirely the 19th century model exemplified by the socratic classroom?

Posted by: Peter Friedman | Sep 26, 2007 3:46:30 PM

I would not want to be represented by a lawyer who did not know how to do legal research, or who did not know how to write a brief. The advice "Do not create a legal writing program" should instead be "Try to create the best legal writing program in the country!"

Posted by: Mark Wojcik | Sep 26, 2007 2:58:51 PM