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Introducing the Classical Rhetoric & Contemporary Law group

14 Jun

[It’s been a while since I posted: I’ve been wrapped up in wrapping up things as I prepare to leave Georgia Tech and head to Texas A&M’s School of Law in the fall. But here’s one new project about which I’m very excited.]

In January 2017 I invited colleagues in the legal academy, particularly those active as teachers of legal writing and legal theory, to join me in an exploration of classical rhetorical texts and their intersections with contemporary law. I issued the invitation over the Legal Writing Institute’s mailing list and via direct emails to a few specific colleagues.

Today, we had our first teleconference to discuss a classical text, Gorgias’ Encomium of Helen—it was a wonderful experience for me, but more on that in another post. In this post, I want to discuss why I thought it made sense to form such a group and to describe what the group has agreed to do.

Why have a reading group for classical rhetorical texts?

Athenian democracy and the study of rhetoric appeared together in the 400s BCE. The twin birth of classical rhetoric and classical legal thinking has not resulted in a close relationship between their children, contemporary legal theory and the contemporary study of classical rhetoric. In broad terms, rhetoric scholars don’t know contemporary law; perhaps every PhD student in rhetoric and related fields has a classical rhetoric course, but their training and scholarship do not reflect practical knowledge of contemporary law. And law scholars treat classical rhetoric superficially (more on that in a moment). Like many generalizations, this is a gross oversimplification: There are certainly scholars of rhetoric and law (e.g., James Boyd White), scholars of law who know rhetoric (e.g., Kristen Tiscione, Michael Frost), and scholars of rhetoric who know law (e.g., Clarke Rountree, Mary Schuster, Peter Campbell, Anjali Vats).

But contemporary study of classical rhetoric makes hardly any mention of contemporary law at all. And a review of contemporary law scholarship shows that classical rhetoric is of interest to contemporary scholars of legal writing, but it also points up common problems: contemporary citations are often only to the most famous classical figures (e.g., Aristotle and Cicero), are occasionally only superficial, and sometimes are to secondary authorities without showing evidence of reading the original classical texts (despite their availability in modern, inexpensive translations).

My goal in asking folks to join me in reading these texts together was to broaden and deepen the legal-writing and legal-theory fields’ understanding of classical texts. Two dozen scholars, mostly from the legal writing community, have joined to form the Classical Rhetoric & Contemporary Law (CRCL) group.

The goals of CRCL are to read classical texts and engage with them, to develop insights about the ways that classical rhetoric intersects with contemporary law, and to help the legal writing and legal theory community to engage more productively with the classics.

Process and products

CRCL formed in May 2017, made up principally of legal scholars planning to engage in the following practices. First, the group selected texts they would read. The list includes Greek Sophists, Plato, Aristotle (both the foundational texts in logic, the Organon, and the Rhetoric), some other Greeks of the classical period, Romans such as Cicero and Quintilian, and some other Hellenistic writers (including Hermogenes of Tarsus).

As their second order of business, the group adopted a procedure for discussing each text via teleconference, with each meeting being 60 mins and taking place between two and four weeks after the last. In some sessions, the group may discuss more than one text. Some longer texts will require more than one session. All members of the group read the assigned text(s), but one member agrees to be discussion facilitator.

A session’s facilitator/leader has several duties. At least three weeks before the scheduled meeting, the facilitator informs the group which edition/translation of the work(s) considered at the meeting the facilitator will use. Other participants can use different editions/translations, but if they want to work from the same text as the facilitator, they’ll know the text. At least 10 days before the scheduled meeting, the facilitator provides some items to the entire group: a summary of references to the work(s) considered in the field of law (potentially including uses of the work(s) considered in the legal writing and jurisprudence (legal philosophy) literature); and four or five reading questions to guide other participants’ involvement. The facilitator also identifies and reads some sources outside the legal literature engaging with the work(s) considered, possibly critically. At the meeting’s beginning, the facilitator presents a 5-10-minute introduction of the text to contextualize it. (The facilitator can write this and send it out in advance instead.)

Of course, this approach is still subject to revision based on our experiences in early days.

The group’s third and final order of business was to consider what scholarly products might come out of this effort. Two are described here merely to provide a basis for discussion. An ambitious product would be an edited collection consisting of the components listed here, one that we would intend for use in at least two environments: (1) The law school classroom, probably in an advanced class in rhetoric, communication, legal writing, legal history, or the like; and (2) the graduate classical rhetoric classroom. It would take the form of a “reader,” including an introductory “chapter” by the editors, excerpts (and in some cases, complete works) of key classical texts in good translations, for each text an introduction to that text akin to an encyclopedia entry, and for each text (or group of them) a reflection by a law-trained scholar on the continuing “traces” of the classical text in contemporary legal practice, theory, or both.

Each contemporary reflection might focus merely on using a classical text to find and explain parallels in contemporary legal theory and practice, perhaps arguing that the parallels illustrate concepts essential to legal/forensic rhetoric. On the other hand, it could take a more critical approach, arguing that contemporary legal practice should move on from hidebound traditions that better reflect the needs of classical litigants than contemporary ones. More nuanced and other angles are possible, of course.

The success of the volume in this form would stem from its uniqueness as a resource for law and rhetoric teachers. We are not familiar with any volume that exposes law students or students of rhetoric to classical rhetoric while connecting what they learn in a systematic way to contemporary practices in the field of law (or any other profession).

A less ambitious final product might take the form of a series of essays in a special issue of a law review. For example, one of our schools could host a symposium where we present the papers and then its law review would publish proceedings as a special issue. Such resources would likely be useful in a law school class, but they would be less likely to be used outside the legal academy (it’s not as easy for non-law faculty to find law review articles).

We are already looking for ways to engage scholars of law and rhetoric in discussions regarding our early observations: The group submitted two panel proposals for the 2018 LWI conference (one proposal discussing our reading-group procedure and one discussing substantive insights), and we plan to submit a proposal for the 2018 Rhetoric Society of America conference as well.

I hope that the members of the group will have more to say about what they are discovering in the coming months and years.

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#CCCC2017 panel will discuss undergraduate legal writing courses

6 Nov

Updated Nov. 7, with details about Legal Writing and Rhetoric SIG.

I’m pleased to be chairing a panel at the 2017 Conference on College Composition and Communication focusing on undergraduate legal writing courses. It takes place Friday, March 17, 03:30 pm – 04:45 pm
at Oregon Convention Center E142. There are five talented speakers, identified below.

I enjoyed helping with the panel proposal, which Lindsay Head spearheaded, and I’m looking forward to working with them to help draw connections among their presentations. Lindsay also led the effort to apply for a special interest group for this CCCC; the application was accepted, and it will happen 6:30 to 7:30 on the evening of Thursday, March 16th. If you teach a law-related writing course to undergrads or are interested in doing so, I urge you to attend.

Here is the panel proposal:

Creative Collaborations: Cultivating New Voices from the Undergraduate Legal Writing Community

140-character abstract: Emphasizing creativity and collaboration, panelists cultivate a space for legal writing in undergraduate English curricula.

Full proposal: Drawing from diverse backgrounds across disciplinary boundaries, this roundtable highlights the complexity of the undergraduate legal writing course and where it deviates and converges with traditional undergraduate writing pedagogies. Each demonstrating a distinct approach, panelists explore the importance of student collaboration and the recursive nature of writing, the process of initial course design and the implementation of a grading contract, the unique blending of pedagogical writing practices, the necessity for deep-revision strategies, and the specific challenge to equip students in a legal writing course outside the traditional purview of law schools. The panelists cultivate this distinctive discursive space, maintaining that legal writing should occupy a prominent space in our English curricula.

Speaker 1, Lisa Klotz, JD, PhD, Lecturer, University of California, Davis

In “Opening Arguments: Introducing Legal Discourse to Pre-Law Students,” Speaker 1, a former prosecutor and law-and-motion specialist, discusses her Legal Reasoning, Research, and Writing course for pre-law students at her university. Specifically, she aims to prepare undergraduates for their first-year law school legal reasoning and writing course. Speaker 1 adapts materials used when she taught legal writing and advocacy in a law school, and she develops assignments that could be used in first-year legal writing classes. Assignments emphasize rule-based reasoning and reasoning by analogy/distinction. Speaker 1’s approach stresses the recursive nature of writing and the importance of revision and feedback (both oral and written). To that end, she requires students to work collaboratively in groups of four (“law firms”). This collaboration also helps prepare students for the kind of teamwork they’ll do in law school (study groups) and in the practice of law (colleagues).

Speaker 2, Lindsay Head, MA, JD, a PhD student at Louisiana State

In “Initial Implementation: Grading Contracts and Course Design in Undergraduate Legal Writing,” Speaker 2 builds on the foundations laid by scholars such as Ira Shor, Peter Elbow, Jane Danielewicz, and Asao Inoue to implement a grading contract in her undergraduate legal and professional writing course designed for students considering professions both inside and outside the law. Speaker 2 discusses the unique benefits and challenges of grading contracts in an undergraduate legal writing course. Teaching legal writing for the first time at any institutional level, Speaker 2 also reflects on her collaboration with practiced colleagues to develop a sound curriculum, along with teaching the undergraduate legal writing course itself. Ultimately, Speaker 2 emphasizes the importance of working with experienced colleagues when bringing novel approaches to the legal writing classroom.

Speaker 3, Antonio Elefano, MFA, JD, Lecturer, University of Southern California

In “And Justice for All: What Non-Lawyers Can Learn from Legal Writing,” Speaker 3 asks the question: how can an undergraduate legal writing course be informed by rhetoric and composition as well as creative writing pedagogies? Speaker 3—a former corporate litigator, rhet/comp writing fellow, and fiction writer—will discuss how he combined pedagogical practices from law school, legal practice, rhet/comp and creative writing to craft his Advanced Writing for Pre-Law Students course at a large research university. The writing assignments are evaluated under a rhetoric and composition lens (using the university’s writing program rubric), with an emphasis on clear and persuasive prose. Finally, borrowing from creative writing, Speaker 3 employs formal writing workshops, where students comment both orally and in essay form on other students’ assignments to sharpen their critical eyes and to forge a sense of collective responsibility. The result: a glimpse of law school and legal practice for prospective law students as well as a practicum in logic, argumentation, and professional writing for everyone else.

Speaker 4, Phil Mink, JD, Assistant Professor, University of Delaware

In “The Rhetoric of the Law: Teaching Pre-Law Students to Write Like Judges,” Speaker 4, a former communications and antitrust lawyer, asks what is required to transform his pre-law students’ frequently chaotic language into prose that would work in a professional setting. Building upon the work of Joseph Williams, George Gopen, and other scholars, Speaker 4 will demonstrate a deep-revision strategy geared to paragraph structure, perhaps the most problematic area of writing for pre-law students. Most undergraduates write down their ideas not in the most logical order but in the order in which they occurred. Students are then left with the task of rearranging their sentences into coherent patterns, an absolute necessity for legal documents. Most students, however, lack this expertise, so the only way to teach them is to subject their writing to the same detailed revision process that an experienced writer would use. At the end of this challenging exercise, Speaker 4 shows how even those students who are ambivalent about the English language can develop a richer understanding of the rhetorical devices that will serve them well in their professional lives.

Speaker 5, Willie Schatz, JD, Lecturer, University of Maryland

In “Torts and Courts for Undergrads,” Speaker 5 draws from 17 years of teaching Legal Writing at his university and discusses the challenge of introducing prospective law students to the conventions of legal prose, a specialized form of writing that emphasizes logic and persuasion. In his quest to faithfully replicate the legal writing course his students will encounter in law school, he relies on scholars such as Helene Shapo, Richard Neumann, Michael Murray and Deborah Bouchoux. Speaker 5’s students learn how to read and write about cases, how to apply legal principles to factual scenarios, and how to analyze and synthesize the law and the facts. Most importantly, these future law students learn which rhetorical method will most move that audience. Speaker 5’s approach begins with students briefing cases in assault, battery, and false imprisonment. When convinced they understand the concept, students write memorandums based on fact patterns created by Speaker 5 and his colleagues. The students complete their preparation by writing a Memorandum Supporting a Motion for Summary Judgment from a factual scenario. The end to these means? Students become familiar and comfortable with rhetorical and writing techniques that surely scared them on their first day of class. Speaker 5 expounds upon this process through which students leave equipped to handle the (now less) difficult task of writing like the attorneys they hope to become.

Empirical research into legal comm’n & professional status of LRW faculty

20 Jul

I was delighted to finagle an invitation to speak on a panel at the Legal Writing Institute in Portland on July 12, during the meeting of the LWI Professional Status Committee. The committee met in a plenary session with a larger audience and conducted its business, and then we panelists were asked to comment in short form (two minutes each) on an angle or issue relating to the professional status of legal research and writing faculty. (For readers outside the legal academy, teachers of communication in that field face status challenges similar to those faced by teachers of writing in the broader academy 25 or even 40 years ago.)

Kirsten Davis at Stetson Law (also on the panel) has talked about posting our comments, and I think that’s a grand idea. The others on the panel were Ken ChestekMary Beth Beazley, and Ruth Anne Robbins.

My comments (as I prepared them, possibly slightly different than those I delivered):

Thanks for letting me share my thoughts today! I received my PhD training as an empirical researcher in rhetoric and composition. Though I’m teaching rhetoric and technical communication outside the legal academy in a tenure-track position at Georgia Tech, I did previously teach legal writing for eight years at University of Minnesota.

I want to share two thoughts–one a recommendation and one a caution–about the role of research for legal communication faculty.

My first thought is that legal communication faculty should engage in empirical research into legal communication. Here, I’m speaking of the professional communication practices of lawyers, judges, and others outside the classroom. Your should engage in this research for at least two reasons.

First, quality teaching in any field is motivated by systematic empirical and theoretical consideration of what is being taught. We cannot rely only on our own practical experiences, though they are very valuable. Our individual experience is limited in scope, and our years in the classroom can insulate us from knowledge of new developments. We must systematically examine what is being done in the field in order to prepare our students for it.

Second, the professionalization of legal communication faculty demands that they make the subject of their instruction the object of their research. The professionalization of writing professors in English (and other) departments and the broader academy accompanied the focus those professors put on research into writing: moving away from the old model where writing teachers published articles and books on Shakespeare and the Romantics, for example–literary research–toward a model where writing teachers publish research on writing processes, contexts, and products.

But my second thought is a caution about my first. In these other departments, the focus on research that examines communication outside the classroom (and the ‘professionalization’ of those researchers) has resulted in a devaluing of classroom and pedagogy research. I have been warned by mentors not to do classroom research, that it will harm my job prospects and tenure and promotion case. I’m continuing to do that kind of research anyway, but it’s less of a focus for me.

So, even if you take my recommendation to research outside the classroom, I hope you resist the temptation to devalue pedagogical research.

Thanks!

(I elaborated on some of this in my presentation on qualitative research the next day)

“The Structured Writing Group: A Different Writing Center?” accepted for publication by The Second Draft

21 Oct

I’m delighted to report that The Second Draft (published by the Legal Writing Institute) has accepted an article I wrote with Professor Christopher Soper from the University of Minnesota Law School for publication in its spring 2016 issue! Titled “The Structured Writing Group: A Different Writing Center?,” the article describes the objectives, development, and some preliminary results of a program I led at the U of M Law School in AY 2014-15. We wanted the “Structured Writing Group” (SWG) project to achieve some outcomes traditionally associated with writing centers: first, improving the student writing process by facilitating collaboration with a writing expert; and second, exposing students to additional audiences for their writing. We added a third goal of improving the experience and performance of multilingual students in the legal writing program.

Chris is Professor of Legal Writing and Assistant Director of Applied Legal Instruction at the U of M Law School. We worked together on the SWG project last year, with outstanding help from Minnesota’s Director of Applied Legal Instruction, Professor Brad Clary, and the other faculty under my supervision: Adjunct Professor Elizabeth Sobotka and second-year law student Anastasia Kazmina.

The SWG was part writing center, part non-credit course. We met as a class about every other week to work through common problems first-year students have with legal writing and to make sure everyone understood the assignments in their regular legal writing sections. All legal writing sections at Minnesota use the same syllabus and have the same assignments and schedule. On the other weeks, usually ones when students’ writing assignments were due, we had extensive appointment slots available for students to come in and talk over individual concerns one-on-one.

Chris is continuing the program this year under Elizabeth’s leadership. She has extensive experience as a teacher of legal writing and is also fluent in Mandarin–a language spoken by many of the SWG’s multilingual clients last year. (She also happens to be a former law-firm partner of mine!)

I’m very excited we will be able to share the details of this innovative program!

-Brian