Comments worth making: Supervising scholarly writing in law school

Journal of Legal Education

Volumn 46, Issue 3, 1996, Pages 342-370

  Fajans, Elizabeth ^a   Falk, Mary R ^b  

^a Department of Legal Writing ^*

^b BROOKLYN LAW SCHOOL   (United States)

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EID: 21444447020     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (127)

1. Oral to written culture. As the computer becomes the dominant "primary medium for presenting and working with texts," and as "we take control of computer-based texts, the existing lines between reading and writing will tend to blur into a single notion of use." Stephen A. Bernhardt, The Shape of Text to Come: The Texture of Print on Screens, 44 C. Composition & Comm. 151, 173-74 (1993).
2. Citing John M. Slatin, Reading Hypertext: Order and Coherence in a New Medium, 52 C. Eng. 870 (1990)).
3. By student scholarly writing, we mean student law review articles and the papers often written to satisfy the upper-class writing requirement that is a feature of almost every law school's curriculum.
4. In the sixties and early seventies, many colleges adopted an open admissions policy, a decision that meant a good number of entering students lacked skills college teachers had come to assume. English teachers met this challenge with intensive research into the reading and writing processes.
5. See Mina P. Shaughnessy, Errors and Expectations: A Guide for the Teacher of Basic Writing 1-13 (New York, 1977). Two helpful summaries on the development of composition theory are Maxine Hairston, The Winds of Change: Thomas Kuhn and the Revolution in the Teaching of Writing, 33 C. Composition & Comm. 70 (1982);
6. James A. Berlin, Contemporary Composition: The Major Pedagogical Theories, in The Writing Teacher's Sourcebook, 2d ed., eds. Gary Tate & Edward P. J. Corbett, 47 (New York, 1988).
7. See, e.g., Janet Emig, Writing as a Mode of Learning, in The Web of Meaning: Essays on Writing, Learning, and Thinking, eds. Dixie Goswami & Maureen Butler, 123 (Montclair, N. J., 1983). Emig argues that "writing serves learning uniquely because writing as processand-product possesses a cluster of attributes that correspond uniquely to certain powerful learning strategies."
8. See, e.g., Janet Emig, Writing as a Mode of Learning, in The Web of Meaning: Essays on Writing, Learning, and Thinking, eds. Dixie Goswami & Maureen Butler, 123 (Montclair, N. J., 1983). Emig argues that "writing serves learning uniquely because writing as processand-product possesses a cluster of attributes that correspond uniquely to certain powerful learning strategies." Id.
9. Id. at 127 (citing Lev S. Vygotsky, Thought and Language, trans. Eugenia Hanfmann & Gertrude Vakar 100 (Cambridge, Mass., 1962)). Although we believe that critical reading and Socratic dialogue also involve deliberate structuring of meaning, we concede that writing results in our most intense and sustained efforts.
10. The relation between writing and learning subject matter is discussed in Lee Odell, Teaching Writing by Teaching the Process of Discovery: An Interdisciplinary Enterprise, in Cognitive Processes in Writing, eds. Lee W. Gregg & Erwin R. Steinberg, 139 (Hillsdale, N. J., 1980). More recently, studies suggest that although writing tasks that require only knowledge-telling do not result in the accretion of knowledge, writing tasks that require problem-solving do apparently result in knowledge restructuring.
11. See Laurel Oates, Beyond Communication: Writing as a Means of Learning, presented at the Legal Writing Institute Conference (Chicago, July 1994). Oates discusses the following studies, among others: J. M. Ackerman, 'The Promise of Writing to Learn, 10 Written Comm. 334 (1993);
12. J. D. Marshall, The Effects of Writing on Students' Understanding of Literary Texts, 21 Res. in Teaching Eng. 0 (1987);
13. A. M. Penrose, To Write or Not to Write: Effects of Task and Task Interpretation on Learning Through Writing, 9 Written Comm. 465 (1992).
14. Insight into the cognitive process may only develop, however, if teachers use the writing projects to alert students to "intuitive communication strategies writers already have, but are not adequately using." Linda Flower, Writer Based Prose: A Cognitive Basis for Problems in Writing, in The Writing Teacher's Sourcebook, eds. Gary Tate & Edward P. J. Corbett, 268, 269 (New York, 1981). Teachers must help students think about their thinking by monitoring and intervening in the writing process.
15. The notion that creativity often requires substantial expertise is borne out by a description of creativity as "the capacity to solve problems through insights that are arrived at independently," a process that goes through five stages: first, recognition of a problem; second, preparation; third, option generation; fourth, option evaluation; and fifth, a decisional stage. Richard K. Neumann, Jr., A Preliminary Inquiry into the Art of Critique, 140 Hastings L. J. 725, 744-45 (1989).
16. This skill breakdown comes in part from an essay on the relation between assignments and skills. Anne J. Herrington, Writing to Learn: Writing Across the Disciplines, 43 C. Eng. 379, 384 (1981).
17. See generally Hairston, supra note 3.
18. A recent study of teacher comments on college papers indicated that "[o]ver 59% of the initial and terminal comments were grade justifications, "autopsies' representing a full stop rather than any medial stage in the writing process. In contrast, only 11%... exhibited commentary clearly meant to advise the student about the paper as an ongoing project." Robert J. Connors & Andrea A. Lunsford, Teachers' Rhetorical Comments on Student Papers, 44 C. Composition & Comm. 200, 213 (1993). In our advanced legal writing seminar, we try to intervene in the "on-going project" of writing a seminar paper, as shown in the schedule we give out at our first class. Feb. 8, Choice of Project/Preliminary Thoughts. Hand in a page with your choice, some preliminary ideas and theses, and the results of some initial research. Don'tjust describe the case or topic-use your best and most original thinking. Mar. 1, Hand in Research Logs, Heading Journals, 'thesis Slaletne.nl. You may also submit any "freewrites." March 29, Detailed Outline. This should be in standard "Roman" form, about 5 pages long, indicating not only the organization, but the substance of your project as well. It should be based on completed research and develop an original thesis. If you have trouble outlining, come talk to us. April 12, First Draft. This should be a complete draft, with footnotes or endnotes, and the results of your best intellectual efforts, not a "rough draft." May 15, Final Draft.
19. As one teacher puts it, "Who wouldn't rather influence the process at... [a] formative stage, tell [students] what to keep and build on, than complain about what they haven't done or what they've done wrong when it's too late? A teacher can point to evolving lines of reasoning, proto-arguments, effective details, the tracks of developing thoughts." M. Eliza-beth Sargent Wallace, How Composition Scholarship Changed the Way I Ask For and Respond to Student Writing, in Modern Language Association, Profession '94, ed. Phyllis Franklin, 31, 37 (New York, 1994).
20. For example, teachers "need to develop an appropriate level of response for commenting on a first draft, and to differentiate that from the level suitable to a second or third draft.... In a first or second draft, we need to respond as any reader would, registering questions, reflecting befuddlement, and noting places where we are puzzled about the meaning of the text." Nancy Sommers, Responding to Student Writing, 33 C. Composition & Comm. 148, 155 (1982).
21. This chart significantly elaborates on one that appears in Jessie Grearson, Process to Product: Teaching the Writing Process in Law School, 9 Second Draft 1, 7 (1993).
22. See, e.g., Robert Scholes & Nancy R. Comlcy, The Practice of Writing, 2d ed., 15-18 (New York, 1985).
23. These four types of feedback are described in Kristen R. Woolever & Brook K. Baker, Diagnosing Legal Writing Problems;
24. Theoretical and Practical Perspectives for Giving Feed-back, presented at the Legal Writing Institute Conference (Ann Arbor. July 1990). First, there is exploratory-that is, brainstorming-feedback. Here the reader questions assumptions and raises alternative interpretations, meanings, and strategies. Because explor
25. See Sarah W. Sherman, Inventing the Elephant: History as Composition, in Only Connect: Uniting Reading and Writing, ed. Thomas Newkirk, 211, 214-21 (Upper Montclair, N. J., 1986).
26. The Rhetoric of Aristotle, trans. Lane Cooper (New York, 1932);
27. See also Linda Flower, Problem Solving Strategies for Writing 74-75 (New York, 1981). Our hypothetical student writing about domestic partnership legislation could work through these categories to narrow the subject, perhaps as follows. Definition: What constitutes a domestic partner relationship? Is "family" being redefined? Comparison: How do domestic partner rights in one jurisdiction compare with those in others? Causation: What effect will the legislation have? What prompted it?
28. Students should be aware that the audience of legal scholarship is both unitary and multiple. Almost all readers of legal scholarship are law-school-educated, but they come from all walks within the profession. Legal scholarship is generally read by specialists but written for generalise-a peculiarity that students should keep in mind when determining the appropriate level of discussion.
29. When thinkingabout the purpose of legal scholarship, it is helpful forstudents to realize that although some legal scholarship is empirical and some interpretive, most legal scholarship is both normative (it has a social goal) and prescriptive (it recommends or disapproves of a means to a goal).
30. See Edward L. Rubin, The Practice and Discourse of Legal Scholarship, 86 Mich. L. Rev. 1835, 1847-53 (1988).
31. The use of narrative in legal scholarship is perhaps the most striking (and liberating) development.
32. See generally Symposium, Legal Storytelling, 87 Mich. L. Rev. 2073 (1989). The creation of a new, less formal genre, the "essay" or "commentary," is another recent development.
33. Scholes & Comley, supra note 15, at 14.
34. Jill N. Burkland & Bruce T. Petersen, An Integrative Approach to Research: Theory and Practice, in Convergences: Transactions in Reading and Writing, ed. Bruce T. Petersen, 189 (Urbana, 1986) [hereinafter Convergences].
35. Jeffries v. Harleston, 52 F.3d 9 (2d Cir.), art. denied, 110 S. Ct. 173 (1995).
36. The great guru of frcewriting is Peter Elbow, author of Writing Without Teachers (New York, 1973) [hereinafter Elbow, Writing Without Teachers] and Writing with Power (New York, 1981).
37. See also Nothing Begins with N: New Investigations of Freewriting, eds. Pat Belanoffetal (Carbondale, 1991) [hereinafter Nothing Begins with N]. Wegive an example offreewriting in section C below.
38. Scholes & Comley, supra note 15, vat 1-1-15.
39. See Against the Tyranny of Paraphrase: Talking Back to Texts, 78 Cornell L. Rev. 163 (1993) [hereinafter Fajans & Falk, Against the Tyranny]; Scholarly Writing for Law Students: Seminar Papers, Law Review Notes, and Law Review Competition Papers ch. 2 (St. Paul, 1995) [hereinafter Fajans & Falk, Scholarly Writing].
40. The Current Crisis in Legal Education, IJ. Legal Educ. 211, 213 (1918).
41. 74 Nw. U. L. Rev. 721 (1979);
42. See also Robert S. Summers, Two Types of Substantive Reasons: The Core of a Theory of Common-Law Justification, 63 Cornell L. Rev. 707 (1978).
43. See Bailey Kuklin & Jeffrey W. Stempel, Foundations of the Law: An Interdisciplinary and Jurisprudential Primer 48-03 (St. Paul, 1994);
44. See also W.lliam L. Twining, Reading Law, 24 Val. U. L. Rev. 1 (1989).
45. See generally Robert A. Ferguson, The Judicial Opinion as Literary Genre, 2 Yale J. L. & Human. 201 (1990);
46. Haig A. Bosmajian, Metaphor and Reason in Judicial Opinions (Carbondale, 1992).
47. Flower, supra note 18, at 77-78.
48. For disabling cases of writer's block, prescribe Karin Mack & Eric Skjci, Overcoming Writing Blocks (Los Angeles, 1979).
49. "Having an outline or a design ahead of time is one of those things that's a great help to people it's a great help to." Bill Stott, Write to the Point and Feel Better About Your Writing 56 (New York, 1991).
50. Writing blocks often come from feeling overwhelmed by the task. If the student can break the task into steps, the enterprise may be less overwhelming.
51. See Mary Barnard Ray & Jill J. Ramsfield, Legal Writing: Getting It Right and Getting It Written, 2d ed., 353 (St. Paul, 1993).
52. The poet Donald M. Murray says that, at the very least, he "must have, in his mind's eye or on paper, an idea of where he is going to begin and where he is going to stop." A WriterTeaches' Writing 7 (Boston, 1968).
53. See Peter Elbow & Pat Belanoff, A Community of Writers: A Workshop Course in Writing, 2d ed., 99 (New York, 1995).
54. "[I]t is when I write, not when I outline, that I work most closely with my subject, see its complexities most fully, and can best estimate what readers will have trouble understanding." Stott, supra note 34, at 56.
55. Mary Barnard Ray & Barbara J. Cox, Beyond the Basics: AText for Advanced Legal Writing 12 (St. Paul, 1991).
56. Jeffries v. Harleston, 52 F.3d 9 (2d Cir.), ml. denied, 116 S. Ct. 173 (1995).
57. See Ray & Cox, supra note 39, at 12.
58. See Elbow, Writing Without Teachers, supra note 25, at 18-22.
59. See Kristin R. Woolever, Untangling the Law: Strategies for Legal Writers 42-13 (Belmont, Cal., 1987);
60. Deborah B. McGregor, Charting, presented at the Legal Writing Institute Conference (Ann Arbor. July 1990).
61. Laurel Currie Oates et al., The Legal Writing Handbook: Research, Analysis and Writing 513-15 (Boston, 1993);
62. Elbow & Belanoff, supra note 37, at 13.
63. Frederic G. Gale & Joseph Michael Moxley, How to Write the Winning Brief: Strategies for Effective Memoranda, Briefs, Client Letters, and Other Legal Documents 20-21 (Chicago, 1992);
64. Flower, supra note 18, at 87-91.
65. Ray & Cox, supra note 39, at 12.
66. Although "structure is not inherent in the information we present, but is something we impose upon it," we can find assistance in writing plans. Barbey N. Dougherty, Writing Plans as Strategies for Reading, Writing, and Revising, in Convergences, supra note 23, at 82, 82. Writing plans exist as part of our culture and are acquired as a result of our experiences in reading and writing As cognitive structures, these plans are like blueprints. Just as a blueprint describes the structural underpinnings of a building without yet realizing a particular building made of specific materials, so a writing plan sketches out the relationship of ideas with broad penstrokes without yet realizing any specific content. As writers we use these plans as a way of exploring and thinking.
67. Id. at 82-83.
68. Wallace, supra note 12, at 37.
69. Because certain genres have particular structures and strategies, students can use a master blueprint to determine "if they have excluded certain strategies typically associated with a certain structure." Richard Beach, Showing Students How to Assess: Demonstrating Techniques for Response in the Writing Conference, in Writing and Response: Theory, Practice, and Research, ed. Chris M. Anson, 127, 140 (Urbana, 1989) [hereinafter Writing and Response].
70. Our paradigms come from, or are adapted from, Paul V. Anderson, Technical Writing: A Reader-Centered Approach, 3d ed., 261-73 (San Diego, 1987).
71. This example is adapted from Robert A. Guy, Jr., Note, The Nature and Constitutionality of Stalking Laws, 46 Vand. L. Rev. 991 (1993).
72. Cause and effect is another common paradigm used to explain the evolution of law or to predict developments. It looks like this. Effect [status quo or result] is announced Possible causes announced Evidence presented on how causes lead to the effect
73. Ann C. McGinley, Reinventing Reality: The Impermissible Intrusion of After-Acquired Evidence in Title VII Litigation, 26 Conn. L. Rev. 145, 145-4G (1993).
74. As we noted in an earlier article, any skill a writer has developed to the point of performing it automatically frees that writer to generate content instead of focusing on flow and topical coherence.
75. See Fajans & Falk, Against the Tyranny, supra note 27, at 175 n. 49 (citing Linda Flower, Taking Thought: The Role of Conscious Processing in the Making of Meaning, in Thinking, Reasoning, and Writing, eds. Elaine P. Maimon et al., 185, 191 (New York, 1989)).
76. For a more developed discussion of these techniques
77. See Fajans & Falk, Scholarly Writing, supra note 27.
78. See Scholes & Comley, supra note 15, at 18.
79. Wallace, supra note 12, at 36.
80. Id. at 37.
81. As Neumann notes, Option-generation... depends on an uninhibited flow of association during which judgment is suspended and ideas that later evaluation shows to be sound arrive mixed together with ideas that eventually turn out to be wrong or even silly. Paradoxically, the critical judgment on which option-evaluation depends can impoverish option-generation, censoring sound ideas before their potential can be noticed. Neumann,. Supra note 8, at 751.
82. This particular response-restating what another has just said or written-is known as "Rogerian reflection." Carl Rogers, a psychologist and encounter-group pioneer, used this technique to encourage his clients to clarify their thoughts. Writing teachers have taken up Rogers' own suggestion that the technique might have pedagogical applications.
83. See, e.g., Dene Thomas & Gordon Thomas, The Use of Rogerian Reflection in Small-Group Writing Conferences, in Writing and Response, supra note 49, at 114.
84. See Lloyd F. Bitzer, The Rhetorical Situation, 1 Phil. & Rhetoric 1 (1968).
85. 6l. Ray & Ramsfield, supra note 35, at 353.
86. Teachers should make sure thac students understand the three basic functions of footnotes-to provide authority, attribution, or textual commentary.
87. See Fajans & Falk, Scholarly Writing, supra note 27, at 87-99.
88. One of the biggest problems writers have is a tendency to want to get it right the first time around. This impossible goal places needless stress on the writer. Elbow & Belanoff, supra note 37, at 288-89.
89. See Sheridan Blau, Thinking and the Liberation of Attention: The Uses of Free and Invisible Writing, in Nothing Begins with N, supra note 25, at 72.
90. Like zero drafts and freewrites, these drafts may contain good ideas which are censored as students revise, and which some instructors may be interested in seeing. Others might expect more polished work.
91. 6G. To revise, students need to be familiar with the stages of assessing-which, as Richard Beach says, involve "describing, judging, and selecting appropriate revisions." Beach, supra note 49, at 129.
92. Elbow & Belanof T, supra note 37, at 102.
93. These content suggestions come from Charles Bazerman, The Informed Writer: Using Sources in the Disciplines, 4th ed., 203 (Boston, 1992), and Ray & Ramsfield, supra note 35, at 89.
94. Richard Beach tells students to determine if the support is sufficient, relevant, and specific. Beach, supra note 49, at 137.
95. Outlining a draft is often a useful way of gaining perspective on material.
96. See Anne Enquist,' After the Fact Outlines: A Old Idea Put to New Use, 6 Wash. Eng. J. 529 (1984).
97. Barbara Child articulates these first two organizational principles as central to the drafting of legal documents, but they strike us as fundamental to all expository writing. Drafting Legal Documents: Principles and Practices, 2d ed., 131 (St. Paul, 1992).
98. It is important, however, for students to be clear about the scale of the teacher's concerns so that a comment about syntax is not given the same weight as a comment about logic. Sommers, supra note 13, at 151. This is especially important because, left to their own devices, students tend to revise at the surface or lexical level only. George Hillocks, Jr., Research on Written Composition: New Directions forTeaching 41 (Urbana, 1986). Nonetheless, errors that consistently interfere with communication should be flagged. First, diagnose the problem in the margin, and then explain how to correct it. You might want to illustrate the correction once or twice by rewriting the sentence. After this, diagnose the problem, but let the student fix it.
99. Marginal comments tend to be local, whereas big-picture comments play an important role in helping students to think and rethink their theses. "Terminal or initial comments... serve as the teacher's most general... comment on the work of the paper as a whole." Connors & Lunsford, supra note 11, at 209.
100. Although students report that directives and strategies that are not text-specific are unhelpful, a study on the commenting styles of thirty-five teachers revealed that most teachers' comments are not text-specific. Sommers, supra note 13, at 152-53.
101. We must work on writing specific rather than general comments so that at the end of a critique a student understands "the themes theoretically and in terms of performance." Neumann, supra note 8, at 767. We must work on writing specific rather than general comments so that at the end of a critique a student understands "the themes theoretically and in terms of performance."
102. Teachers should respond at the conceptual, structural, sentence, and lexical levels.
103. See Nina/D. Ziv, The Effect of Teacher Comments on the Writing of Four College Freshmen, in New Directions in Composition Research, eds. Richard Beach & Lillian S. Birdwell, 362 (New York, 1984).
104. Connors and Lunsford's study shows teachers reluctant to pass "professional" judgment on student writing. Although willing to comment on weak argumentative strategies, teachers rarely argue or refute content. Connors & Lunsford, supra note 11, at 215. At the graduate level, this strikes us as remiss.
105. "Formal-error correction characterized teacher response through the twenties, thirties, and early forties.... By the middle fifties, however, educators [thought students] should get fullscale rhetorical comments."
106. Id. at 201.
107. Sommers, supra note 13, at 151.
108. Ray & Ramsfield, supra note 35, at 89.
109. Although studies show that about 89 to 91 percent of teacher comments find fault while only 6 to 11 percent praise (Donald Daiker, Learning to Praise, in Writing and Response, supra note 49, at 103, 103-01), a 1972
110. Study shows that students who receive praise write more, have more patience, and enjoy the activity more than students who receive only negative comments. C. W. Griffen, Theory of Responding to Student Writing: The State of the Art, 33 C. Composition & Comm. 296, 300 (1982) (citing Thomas C. Gee, Students' Response to Teacher Comments, 6 Res. in Teaching Eng. 212 (1972)).
111. Shaughnessy, supra note 3, at 85.
112. Scholes & Comley,. supra note 15, at 19.
113. "Cohesion is often achieved when a new sentence opens with a brief reference to all or part of the prior sentence. In other words, you begin a sentence with old information and then move on to new information. This overlapping of ideas leads your reader, gently into the new idea." Helene S. Shapo et al. Writing and Analysis in the Law, 3rd ed., 152 (Westbury, N. Y., 1995).
114. See Fajans & Falk, Scholarly Writing, supra note 27, ch. 7.
115. We refer, of course, to the decision whether to give upper-class writing credit (and thus permission to graduate) to a student who turns in an unacceptably rough or thin term paper too late to permit revision. Anecdotal evidence suggests that few of us prevent such students from graduating.
116. The workshops could also be videotaped so that students who missed a workshop or who want to review a workshop could watch at their convenience.
117. See Martin Nystrand & Deborah Brandt, Response to Writing as a Context for Learning to/Write, in Writing and Response, supra note 49, at 209;
118. See also Thomas & Thomas, supra note 59, at 115-10.
119. Nystrand & Brandt, supra note 87, at 210. One of the most significant benefits is to the student's attitude toward revision. In peer writing groups, not only were revisions more effective, but students forged more positive attitudes toward revision, which they no longer viewed as mere "surface tidy-up for the evaluator," but as a way to meet the reader's needs.
120. Id. at 209.
121. Bari R. Burke, Legal Writing (Groups) at the University of Montana: Professional Voice Lessons in a Communal Context, 52 Mont. L. Rev. 373, 406 (1991).
122. See Philip C. Kissam, Seminar Papers, 40 J. Legal Educ. 339, 340-41 (1990). Kissam argues for seminars that provide "quasi-clinical" legal education. Students "must engage in a project that involves research, thinking, and writing about a subject with complexities and contradictions. " But "the faculty member and student must avoid thinking about the seminar project as an exam in which the faculty member knows [the answers; rather] the faculty member and student must perceive the student's project as [one] in which the student becomes the primary expert...."
123. Id. at 341.
124. See Burke, supra note 89, at 406. Burke offers suggestions on how to prepare students to participate as readers and as writers.
125. Id. at 407-08. At Montana, she enlists the help of a psychologist from the university faculty to talk to students about small group dynamics.
126. Id. at 391 n. 67. One recent article reports good results from the use of "Rogerian reflection" in mentorcd writing groups, but the technique (essentially a form of descriptive feedback) could equally be taught to peer writing groups.
127. See Thomas & Thomas, supra note 59.