23 Pages Posted: 25 Apr 2011
Date Written: March 29, 2011
The theory and practice of law have been separated in legal education to their detriment since the turn of the twentieth century. As history teaches us and even the 2007 Carnegie Report perhaps suggests, teaching practice without theory is as inadequate as teaching theory without practice. Just as law students should learn how to draft a simple contract from taking Contracts, they should learn the theory of persuasion from taking a legal writing course. In an economy where law apprenticeship has reverted from employer to educator, legal writing courses should do more than teach analysis, conventional documents, and the social context in which lawyers write. The legal writing professor's task is to impart to his or her students the intellectual ballast necessary to navigate complex analytical challenges in the workplace. By combining rhetorical theory and practice in the legal writing classroom, the professor can pique students' interest, hasten their learning, and help them develop transferable skills better than teaching by imitation alone. In addition, teaching the rhetorical nature of law in a legal writing course helps students debunk sooner the myth of black letter law in their doctrinal courses. Finally, as the Carnegie Report indicates, a more holistic approach to teaching can best blend the analytical and practical habits of mind that professional practice demands....
This Article begins with a brief history of the separation of theory and practice in the law classroom and the impact that it has had on the quality and reputation of writing as its own subject. The Article argues that despite a wave of pedagogical advances, legal writing as its own subject has ample room to grow. For legal writing courses to achieve intellectual maturity, they must incorporate rhetorical theory. To ignore it is to confirm Plato's suspicion that rhetoric is a discipline without a subject matter and to enable the insidious undervaluing of our profession. As detailed below, there are several advantages to teaching legal writing as rhetoric. Although not the focus of this Article, a corollary advantage may be to help legal writing faculty achieve academic equality, which benefits teacher and student alike. For a variety of reasons, this Article concludes that legal writing professors are responsible for teaching both practical skills as well as the theories that inform them.
Keywords: Legal education, Legal research and writing, Legal writing courses
JEL Classification: K00, I21
Suggested Citation: Suggested Citation
Tiscione, Kristen Konrad, A Call to Combine Rhetorical Theory and Practice in the Legal Writing Classroom (March 29, 2011). Washburn Law Journal, Vol. 50, 2011; Georgetown Public Law Research Paper No. 11-39. Available at SSRN: https://ssrn.com/abstract=1822263