(Slightly updated December 4, 2021 with additional references.)
In her book, Strategies and Techniques for Integrating Diversity, Equity, and Inclusion into the Core Law Curriculum, Professor Teri McMurtry-Chubb (2022, p. 62) suggests a wide variety of interventions for law teachers seeking to “acknowledge the experiences of minoritized students and faculty and [to] seriously grappl[e] with their legal and societal implications.” She also expressly embraces the “community of inquiry” framework, which has received attention in the scholarly literature relating to the pedagogy of writing (see, e.g., Stewart, 2018).
This essay describes an approach to peer review and classroom workshopping intended to develop a community of inquiry in the classroom, center students’ own rhetorical knowledge, and establish the authority of students—especially minoritized students—as rhetorical agents. It is not about grading or summative assessment but rather about formative assessment and how teaching students to give and receive it in this environment communitizes (for lack of a better term) the legal writing classroom.
The technique described in this essay works from the presumption that each student who comes to law school comes with rich rhetorical experience. In other words, they have extensive experience constructing discourse suited to certain audiences and certain contexts. They use a variety of tools to construct such discourse, including linguistic registers (or styles) and rhetorical genres (such as the academic paper).[1] On one hand, it is possible that (some of) our marginalized and minoritized students are less familiar with certain formal and academic registers and genres than (some of) our nonmarginalized and nonminoritized students.[2] On the other hand, it is likely that (many of) our minoritized students are skilled at shifting register and genre based on social context (code switching, style shifting, etc.) in ways that (many of) our nonminoritized students are not.[3] As McMurtry-Chubb (2022, p. 5) notes, “Minoritized students . . . come to law school with wisdom from their lived experiences on how to minimize the effects of their identity contingencies . . . .”
The approach I recommend here fits with the community of inquiry framework. Under that model, according to writing researcher Mary K. Stewart (2018, p. 87), “in a functioning community of inquiry, teaching presence and social presence support cognitive presence. In other words, when students experience a sense of community (social presence) and when the course design and instructor feedback guides students toward collaborative learning (teaching presence), then knowledge construction can result from interaction (cognitive presence).”
To meet these requirements, the professor must set the stage for a community where students offer each other supporting discourse by setting the climate in the classroom and selecting content for their discussions (Stewart, 2018, p. 88). This approach calls on legal writing professors to create a suitable climate: They decenter their own rhetorical authority in the classroom while retaining their professorial authority, but they emphasize students’ rhetorical authority so that they recognize it in each other. This builds a community of supporting discourse. The selection of materials—here, student’s own writing—is critical to making participation in the community salient to students. When properly executed (and when the stars align to provide a good teaching day) this approach can “motivate students by encouraging positive emotions, such as confidence, by stimulating their interest, and by showing them how to use their skills to change their experiences and to help others” (Crichton, 2019, p. 256).
De-center the professor’s rhetorical authority while retaining classroom authority
More than any other class in the first-year curriculum, legal analysis and communication focuses on teaching students a “how,” rather than a “what.” More than any other class, it implicates knowledge the students already have about how to communicate, creating a tension between what students think they know and what the professor wants to teach. This can lead to more-or-less aggressive students attempting to challenge the professor’s authority.
One way through that tension is for legal writing professors to emphasize the contingency of what counts as correct in legal work contexts. Professors should emphasize that they are in charge of the class and control the grading. But it’s helpful to have students see the professor also as their supervising attorney. The professor may acknowledge that in many places, what a supervisor prefers is merely that, a supervisor’s preferences: plenty of competent lawyers write memos and briefs using contractions, starting sentences with “However,” and employing “and/or.” Others strongly dislike those practices. What’s critical is that students cultivate register and genre awareness, that they know when to adapt or adjust their style in response to the preferences of their audience or supervisor.
This simultaneously increases and decreases the professor’s authority in the classroom: Here, the professor doesn’t need to prove they are right about anything once they’ve expressed a preference; professor preferences are the law, just as future supervising attorneys’ preferences will be. But the professor’s experience as a legal practitioner justifies that preference being the law in this classroom; the professor can assert with confidence that it is what they would have expected in a real work context. Even if students have related work experiences, such knowledge cannot trump the professor’s authority to set this classroom’s expectations.
When students ask questions about the preferences of the professor, they may be challenges to professorial authority, but they are best used as opportunities to teach. Here is a paraphrase of an exchange that happened in my classroom.
Student 1: I was a paralegal in a law office for several years, and our memos never included question-presented and brief-answer sections. They just had an introduction paragraph. Why do we need to have separate QP and BA sections at the beginning of our memo and why must they follow the patterns in the text?
Teacher: Student 1 has made an important observation. Remember: When you are first finding your way around a new environment, it’s wisest to model your communication after what you see happening around you. Use the format your employer prefers unless you can make a strong case for varying from it. In this class, the textbook and my statements to you express our “office’s” usage. My preferences for the memos in this class stem from two things: first, my own preferences as a supervising attorney, which I try to identify to you as contingent and likely to change in other environments; and second, the learning outcomes of this course.
(Teacher, continuing) Let’s try an exercise. Student 1, look at what the textbook requires for QP, BA, and the formal conclusion, and compare it what you remember from your former legal experience. Do they do the same work, similar, different? The rest of you, go to the learning outcomes page on the course website, particularly the skills list, and see what purposes you think assigning the QP and BA serves, if any. I’ll give y’all four minutes before we reconvene.
After this exchange and the ensuing silent work time, we reconvened. Students knew that I would “cold call” on them at this point, so they come back from quiet time prepared. We discussed the extent to which Student 1’s work genres did the same or similar rhetorical work as the QP, BA, and formal conclusion in our memo. The discussion centered Student 1’s experience as rhetorical expertise. (In the extended survey at the semester’s beginning, Student 1 had identified as a Latina whose first oral language was Spanish and whose only written language was English.) We also discussed the learning outcomes and skills identified at the course’s beginning, thus justifying (at least to students’ satisfaction that day) my requirements for the memo were plausible. I then reiterated that for this assignment, as supervising attorney, I was requiring QP, BA, and formal conclusion. I always invite students to note this as a thing they’d like changed for future assignments, and we always debrief each assignment after students submit it.
Emphasize students’ rhetorical authority so that they recognize it in each other
This pedagogy emphasizes the personal experiences of professor and students. It then calls on students to join a community of their peers for exploring the rhetorical possibilities of the texts they are creating. This typically places minoritized students on an equal or stronger footing than non-minoritized students in terms of their rhetorical authority in the classroom
The example exchange in the previous section would not have been possible if Student 1, a member of a commonly minoritized group,[4] had not felt safe asking her question. I start early in the semester to emphasize the value of personal experiences—using my own experiences as a first-gen, queer student with mental health issues and a family history of receiving public assistance.[5] I frequently ask students questions about course materials using the lenses of my experiences, encouraging them to do the same. I recognize that my privilege as a tall, middle-aged, White, cismale makes it easier to disclose these facts to students without playing into stereotypes, and I often explain that I don’t expect them to disclose such facts about themselves.
But the key activity for establishing this community is the peer-review workshop in class sessions. For “completion points,” students write short snippets of work, usually parts of a larger work that I will grade, and they subject them to peer review. For further completion points, a group of three or four students anonymously reviews work from each other.[6] On the peer-review platform, I identify criteria (effectively a rubric) for evaluation, but students must also make a free-form comment using the Describe-Evaluate-Suggest approach.[7] For evaluation, they may use the textbook or classroom discussions to identify evaluative criteria, but I also encourage them to “put yourself in the shoes of the audience and identify something you think would matter to them and why”—in other words, “think rhetorically.”
Once or twice in nearly every class session for the first half of the first semester, I project an example of a current student’s snippet, this time with the author identified. I warn students at the beginning of the semester that I’ll do this. I believe it makes them more invested in and accountable for what they submit for these otherwise-ungraded completion exercises. I remind students that I always choose a competent performance, but one that can use improvement. I note the suggestions that peers made—also identifying them by name—which sometimes conflict, for example with one saying “you should have done more X,” and the other “you should have done less X.” I sometimes ask the author to explain one of their choices. The class asks questions, often contrasting something the projected author did with their own writing, considering the alternatives.
I facilitate the conversation, often expressing satisfaction when students identify considerations that I have in mind—and even delight when they identify something I had not considered. I rarely intervene with a preference, unless what a student proposes is something that I have never seen in legal writing. (Even then, I emphasize that it might be appropriate for some context.) Again, this is a place where I de-center my own rhetorical authority and center the students’. At the same time, I have a strongly felt sense that I am building my ethos with them, and theirs with each other. Students may disagree with advice they receive from peers (and from me), but they recognize its value.
Critically, I ensure that I project on the screen and workshop some snippet from nearly every student in the course section during the first six weeks of the semester. For most students, it is the first time in their lives that their writing has been the center of a classroom discussion. I also ensure that the work of minoritized students is featured alongside that from nonminoritized students from the beginning. I don’t need to tell students there is no difference in quality, because our discussions establish that amply. The classroom sessions allow all the students to show off their rhetorical instincts, honed by their diverse experiences.
Challenges to this pedagogy
This approach requires painstaking preparation and artful improvisation. Some other professors have expressed concerns about plagiarism or an imposed uniformity that using this approach might cause, as we use snippets that will become part of graded assignments. Finally, I have not performed empirical study to verify that my impressions of how the students are doing match their own.
This pedagogy requires last-minute preparation. For example, typically, we use this schedule:
- Students submit their snippet of writing by Saturday at 10:00p.m.
- Peer reviews are due Monday by 10:00p.m.
- We have class at 10:30 (one section ) and 1:30 (second section) on Tuesday and Thursday.
For this pedagogy to work, I must read through all the reviews (and some of the original submissions) and use the peer-review tool to identify good examples to discuss in the class session between 10:00p.m. on Monday and 10:30a.m. on Tuesday.[8] I check the reviews to ensure they are civil and professional, intervening if a student moves into snarky territory. (That hardly ever happens.) I use the peer reviews and peer-review tool to identify candidates to project on the screen during class.
In the class sessions themselves, the workshop effort usually takes twenty to forty-five minutes (of a ninety-minute class session). Note that I do not address grammar, punctuation, and other mechanical issues at this time, and students are prohibited from addressing them in their peer reviews (with certain express exceptions). But these samples do provide evidence to me of problems the students have in those areas, and they often shape at least a portion of the balance of the class session.
The improvisation element in this pedagogy is critical. Professors must use all their communicative instincts to put students at ease with receiving formative feedback in front of and from their peers. As Professor Sha-Shana N.L. Crichton (2021, p. 9) warns: Our students crave “constant and immediate feedback. Also, they are typically accustomed to being praised for being bright. Anything that falls short, including constructive feedback, sends their stress response into high gear. Consequently, they either push back (fight), shut down (freeze), or ignore the comments (flight) . . . .” Our goal for feedback should be “to help them to build critical legal skills, not to add to their stress levels.” As a result of successful management of this workshop, the projected author must feel supported and counseled, not attacked or ridiculed. The other students must feel motivated to speak up with their own questions and discuss.
All this is hard work. The energy required to create and sustain positive energy in the classroom cannot be underestimated. I’m never more exhausted than after a good day in my classes. This pedagogy also intensifies the already-common problem that class prep for legal communication is at best contingent, requiring time for continuous adjustment. And this effort lies on top of “the enormous and unique workload of a legal writing professor, the competing and sometimes conflicting needs an original legal writing problem must address” (Tamer, 2021, p. 332).
Some have expressed concerns about using this pedagogy with snippets of writing that will eventually become parts of students’ graded assignments. They worry students will plagiarize from each other or that students will settle on a uniform response to the problem based on the class discussions. Some professors have told me they use samples of students’ writing from previous years to address these concerns. I believe that solution completely misses the point of centering the work of the students in the current class, and it lowers the stakes of the present students in the workshop discussion. As for plagiarism and uniformity, my “Plagiarism, collaboration, and copying policy” includes the following language:
You may not work on writing your own assignments while directly referencing the work of other students. That means you may not (1) copy and paste anything from another student’s work; or (2) view another student’s work while you are writing or editing your own work. You may make notes of the things that other students do in their writing, and after closing their files, you may refer to your own notes while you are writing and revising your own work. “Making notes” about what other students do in their writing is not the same as copying down their words, though.
In five years of using this pedagogy, I have not witnessed students plagiarizing each other. It’s possible one or two have slipped by, but I typically know students’ writing very well by the time we reach the end of the semester. As for concerns about uniformity, there is hardly any risk of it, because the workshops never settle on the right answer. Students leave with choices to make, not answers to questions.
Finally, there has been no empirical study of how students experience this pedagogy. The evidence I have is from my own experience, the observations of peer teaching observers, formal student course evaluations, and informal anonymous surveys I ask students to respond to during the semester. All of those are consistent with my theses, but those data are not collected with the purpose of evaluating the pedagogy. A qualitative study that examines student experiences is fairly easy to conceive, but it would take considerable time to design and carry it out properly. What’s more, I would be uncomfortable being the researcher with my own students, as it would raise concerns of research ethics.
Conclusion and next steps
Now that I feel my practice of this pedagogy has stabilized, I believe it can serve as a useful foundation for engaging with other ideas for making my classroom actively antiracist. This includes the many proposals in McMurtry-Chubb (2022) and those such as Pham’s (2021) “critical case briefs” or using the Feminist Judgments series to teach first-year legal writing (Stanchi et al., 2021).
Nothing works in the classroom every time I try it. From my breathless exposition above, you can guess that my approach is in some sense aspirational. There are low points, where the concepts I hoped students would get don’t seem to come across. But there have not so far been low points of the kind I most seek to avoid: Students behaving disrespectfully toward each other during these discussions. The high points have made me grateful for the exhaustion I feel at the end of a good day of teaching.
References
Chew, A. Z., & Pryal, K. R. G. (2016). The Complete Legal Writer. Carolina Academic Press.
Crichton, S.-S. (2019). Incorporating Social Justice into the 1L Legal Writing Course: A Tool for Empowering Students of Color and of Historically Marginalized Groups and Improving Learning. Michigan Journal of Race & Law, 24(2), 251–298.
Crichton, S.-S. (2021). Teaching in the Time of Disruption: A Case for Empathy and Honoring Diversity. Lega Writing: Journal of the Legal Writing Institute, 25, 4–14.
Larson, B. N. (2016). Gender/Genre: The Lack of Gendered Register in Texts Requiring Genre Knowledge. Written Communication, 33(4), 360–384. https://doi.org/10.1177/0741088316667927
McMurtry-Chubb, T. A. (2022). Strategies and Techniques for Integrating Diversity, Equity, and Inclusion into the Core Law Curriculum. Wolters Kluwer Law & Business.
Pham, H. (2021). The Critical Case Brief: A Practical Approach to Integrating Critical Perspectives in the 1L Curriculum. In N. P. Dyszlewski, R. J. Gabriel, S. Harrington-Steppen, A. Russell, & G. B. Tung (Eds.), Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom (pp. 93–108). Carolina Academic Press.
Stanchi, K., Crawford, B., & Berger, L. (2021). Teaching with Feminist Judgments. In N. P. Dyszlewski, R. J. Gabriel, S. Harrington-Steppen, A. Russell, & G. B. Tung (Eds.), Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom (pp. 343–361). Carolina Academic Press.
Stewart, M. K. (2018). Cognitive Presence in FYC: Collaborative Learning that Supports Individual Authoring. Composition Forum, 38.
Tamer, C. (2021). Small Tweaks, Big Effect: Fitting Diversity and Inclusion into the “Puzzle” of Any Legal Writing Problem, Involving Any Legal Issue. In N. P. Dyszlewski, R. J. Gabriel, S. Harrington-Steppen, A. Russell, & G. B. Tung (Eds.), Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom (pp. 331–343). Carolina Academic Press.
Notes
[1] Linguistic register is the style or variety of a speaker or writer’s language. Genre can be defined as “a recurring document type that has certain predictable conventions” and “conventions” as “parts of a genre and the ways that audiences expect a genre to be written” Chew and Pryal (2016, p. 4). See also Larson (2016, p. 364).
[2] It’s critical that we not stereotype our students here, however. Many minoritized students come to our classes with more familiarity with formal writing than many nonminoritized students. Nevertheless, a common concern is that minoritized and marginalized students will be disadvantaged by having had less exposure to these registers and genres.
[3] Again, there is a risk of stereotype here. As a gay, first-gen college graduate from a Midwestern blue-collar family of Northern European origins, I also style shift when I attend family gatherings, putting away the vocabulary and articulation of the academy and the catch phrases and mannerisms of the gay bar.
[4] True even in Texas, where folks of Mexican descent make up more than 30% of the state’s population and Spanish is the first language for 27% of the population.
[5] I begin the semester by having students read a case that involves one of my relatives, a pedagogical approach that I discuss in a blog post.
[6] I used to have students’ names visible during peer review, but Tracey Norton’s demonstrations of peer-review platform Peerceptiv (here and here) persuaded me to change this practice.
[7] I describe the Eli Review peer-review platform and the D-E-S approach in a blog post associated with demonstrations of Eli Review I performed in summer 2020.
[8] A fringe benefit of Eli Review is that it tells me how the students think other students are doing on meeting rubric expectations. Where there are “low scores” from peers across the class on a topic, I know that’s a topic I need to address expressly in class.