Truth About Cats & Dogs: Legal Writing Programs and the Law School Curriculum

Abstract

In the latter part of the nineteenth century, Christopher Columbus Langdell introduced ideas about legal education that would quickly and radically change the face of formal legal education in America. Dean Langdell sought to replace the stale American tradition of reading the law in law apprenticeships with the enlightened ideas of the scientific method then famous in the European centers of higher learning. He supposed that the law, like chemistry or physics, was best taught at university. More importantly, Langdell believed that the law was discoverable through the objective and scientific analysis of data. The law, Langdell suspected, could be reduced to a finite number of universal propositions that scientists and students could reveal through observation, experimentation, and critical study of primary legal data - the body of judge-made law, or the common law.

While Langdell's notion of scientifically derived legal “truths” ultimately failed (largely because the law is contextual, not universal, and dependent on a host of social, political, and cultural factors), the method of legal study that Langdell introduced at Harvard University in the 1870s proved, in time, his genius and legacy. In the classroom, Langdell replaced lectures and readings in secondary legal sources with rigorous discussions of judicial opinions and other primary sources of law. His “case method” of instruction required students to read and analyze the law itself and to draw conclusions about the underlying legal principles embedded in each case. Langdell also adopted a method of classroom instruction that required *106 students to answer questions posed by the instructor. The “Socratic method” of instruction encouraged students to vigorously debate the meaning and development of judicial opinions, allowing students the opportunity to discover Langdell's science. While Langdell's science was flawed, his pedagogy was elegant. Both the case method and the Socratic method presupposed that the study of law was about instruction in critical thinking and not about the rote memorization of legal information. In time, American legal educators embraced these ideas. And despite its derivative birth, Langdell's unusual teaching methodology heralded a revolution in American legal education still very much alive today.

Langdell's teaching methodologies quickly won almost universal acceptance largely because they worked. Under the case method, and its corollary the Socratic method, instructors taught students to think critically about the law, analyze and identify core principles embedded in judicial opinions, trace the development and future directions of the law, and apply legal principles to an infinite number of fact scenarios. These higher-order analytical skills would come to be viewed as the true essence of lawyering and legal education. More importantly, Langdell's methods persuaded university administrators that law could be taught in the nation's academies of higher learning, and, because the study was cloaked in the scientific model, was best taught at university. Even if by accident then, Langdell's methodology would come to be viewed as the cornerstone of modern American legal education.

Perhaps because Langdell's ideas were so successful, or perhaps because legal education has since calcified, or perhaps because of inertia, the legal academy continues to proudly and almost exclusively endorse some semblance of the case method. To its detriment, however, the academy chooses to define narrowly the parameters of legal education established by Langdell over 130 years ago and chooses to exclude and relegate nonconforming law courses to the lower rungs of the academic ladder. While traditional doctrinal courses, including Contracts, Torts, Property, and Criminal Procedure, enjoy contemporary relevance because of their Langdellian pedigree, legal writing courses, and to a lesser extent other practice-oriented courses, are maligned and overshadowed largely because they developed long after Langdell first established the now static quality of modern legal education, and because they more closely resemble the law apprenticeships that Langdell sought to replace.

Due in part to their more recent evolution, legal educators have misunderstood the role and function of legal writing courses. Seen as remedial in nature and tangential to the true Langdellian mission, legal writing courses are rarely perceived as important or as significant as other law school, particularly doctrinal, courses. However, when objectively examined within the tradition of Langdell's teaching methodologies and objectives, legal writing courses ought to be regarded with favor because they not only complement the law school curriculum and advance the mission of the legal academy, but they further the objectives of Langdell and his academic progeny.

Both doctrinal courses and legal writing courses aspire to train law students to think critically about the law and to analyze legal principles and fact patterns. Both emphasize the primacy of critically examining primary legal authority, and both subscribe to some form of Socratic inquisition. The key difference between doctrinal courses and legal writing courses is not the degree of intellectual rigor or the substantive weight of the material taught, but rather the courses' pedagogical approaches. Doctrinal courses tend to favor a more inductive approach to classroom pedagogy; the idea is to examine specific pieces of primary authority to allow students to build a structural and holistic doctrinal frame. Legal writing courses tend to favor a more deductive approach to classroom pedagogy. Here, instructors and students examine doctrine-neutral legal analysis, research, and writing principles and require students to create cogent analysis of typically narrow legal precepts. While the pedagogical approaches may differ, legal writing courses and doctrinal courses work to complement the other and each furthers the goals of legal education first introduced by Langdell well over a century ago.

This Article will examine the pedagogical foundations of legal writing courses in relation to the traditional doctrinal courses offered in American law schools. First, the Article will explore, briefly, the genesis of modern American legal education first introduced by Christopher Columbus Langdell in the 1870s. Second, the Article will discuss the introduction and proliferation of legal writing courses and identify some reasons for both the anti-intellectual bias associated with writing courses and for the inferior status accorded to writing courses and their instructors within the academy. Third, the Article will examine the pedagogical differences and similarities between legal writing and doctrinal courses. Finally, the Article will suggest that while the pedagogy of legal writing and doctrinal courses may differ, both categories strive to inculcate students with the critical thinking skills required of lawyers and, thus, complement the other. As such, legal writing courses ought to enjoy the same significance and curricular importance as their doctrinal counterparts.