The Chicken or the Egg: Reflections on the Thirty-Fifth Anniversary of Legal Writing: The Journal of the Legal Writing Institute

[W]e must ask what worlds, what communities, our expressions and writings and conversations create.

– James Boyd White^[1]

Thirty-five years ago, in 1991, I wrote the Editor’s Foreword to the inaugural volume of this journal.^[2] In that Foreword, I attempted, among other things, to make the case for legal writing as a topic worthy of academic inquiry and the case for an academic journal that would publish the results of those inquiries. In essence, I was arguing that legal writing be seen as an academic discipline.

By that time, the Legal Writing Institute had incorporated as a non-profit organization (in 1986); it had a Board of Directors; it had a newsletter; and it had hosted four national conferences (if you count the originating 1984 conference).^[3] The Institute was underway. With the publication of Volume 1, it also now had an academic journal. As far back as the 1984 conference, conference attendees had expressed support for an academic legal writing journal. The Institute’s Board of Directors supported the idea of such a journal. And the growing body of legal writing professionals who were quickly becoming part of my national network all expressed enthusiasm for a journal. I felt no hesitation about publishing Volume 1.

Yet I felt that I needed to make a case for the Journal. On the one hand, I wondered about legal writing as an academic discipline. Given the success and growing popularity of those first four national conferences, I had no doubt that there were many dedicated people teaching legal writing courses, mainly in law school settings. But the majority of their conference presentations were oriented toward the practical and the pedagogical—how to teach a given topic in the classroom, for example. Or their presentations were descriptive—what a given program at a particular school looked like. Or, increasingly, the topic of professional status arose—either because most of the attendees lacked it, or because some programs were in administrative jeopardy, or because many law schools didn’t even have something like a formal legal writing program. These were important topics for an emerging discipline to discuss, but they weren’t quite academic topics.

On the other hand, there was the question of the demand for such a journal. If legal writing as a discipline was just emerging, it might be that the size of the readership for that journal was overly limited. I also felt, however, that the Journal, if done properly, could itself help to generate the demand. I saw a possibly unmet need for a journal that spoke to the academic questions underlying the practice of legal writing and the teaching of it. And in the late 1980s, while I was mulling all this over, a few articles came out that seemed perfect for a legal writing journal.^[4] Surely there could be more.

In a sense, it was a question of the chicken or the egg. Did legal writing have to be an established discipline to support and justify its own academic journal, or would that journal itself help to encourage this emerging discipline and at the same time generate a readership? You can see me struggling with this question if you go back and read that 1991 Preface.

Looking back at the Preface, I would say that its primary rhetorical strategy was simply to ask questions. Why did I take that approach? Because in my mind, the state of legal writing as a discipline back then, if it even were a discipline, was one of unfulfilled potential, although one with great promise. Hence all the questions. I certainly did not believe that I knew all, or even very many, of the answers to those questions. No one person did, but I hoped that people would step forward and start exploring some of those possible answers. Or come up with their own questions.

My questions covered four broad categories. Let me revisit them briefly, not to repeat what I said thirty-five years ago, but, with the benefit of hindsight, to ascertain what I think I was getting at. The first question, “What Is Legal Writing?,” reveals my effort to determine the extent to which legal writing was a specialized discourse or discourse domain of its own, with its own set of discourse features that might deserve study beyond those of writing studies in general. Composition studies as a field had been burgeoning since the 1970s, but it was primarily oriented toward the college level, and legal writing studies was new. I was also familiar with Aristotle’s identification of forensic rhetoric as a special form of persuasion, with features unique to it alone.^[5] And I had been doing a lot of reading in linguistics in the 1980s and was aware of the idea of speech or discourse communities. So I was curious about the features of contemporary legal discourse and thought that topic might be something for the Journal to explore. And of course, this type of inquiry could venture beyond legal writing as written discourse and into the relevant features of legal reasoning.

The second question, “How Is Legal Writing Read and Written?,” followed in a way from the first. If in response to the first question legal discourse is different or specialized, then do legal writers use somewhat different composing strategies? Are there special or particular thinking and composing issues that we must guide law students into, different from practices that served them before they entered into the law? And does that process start with different ways of reading? Here, I had in mind the explosion of research from the 1970s and 1980s into the composing processes of student writers. Jim Stratman’s article in the first volume of the Journal, for example, had emerged from that type of work.^[6] Other inquiries were also taking place, at least at the level of pedagogy, in conference presentations about IRAC, CREAC, and the scheme’s many other permutations, all aimed in part at using external written organizational schemes as a way of getting “inside” and guiding a writer’s legal analysis. And some legal writing teachers were starting to look at what it meant to teach legal reading. Activities like those, I thought, might lend themselves to a deeper academic inquiry.

The third question asked, “What Broader Issues Exist for Legal Writing?” The first two questions had focused on legal writing as a discourse and on legal reading, legal writing, and legal reasoning processes (or tried to). But it seemed to me that there were broader issues specific to the field, and one came to mind immediately: the plain language movement. The plain language movement in general had gained a lot of steam in the 1980s, and people in legal writing were starting to become proponents of it in legal settings, most notably Joe Kimble. Because of my own interests, I was additionally curious about the linguistic weight of precedent and tradition on modern legal style, in a fashion similar to that discussed in David Mellinkoff’s work.^[7] And because I had been doing some writing consulting with downtown law firms, I was keenly aware of the effect institutional practices had on the state of legal writing—through the expectations that partners had of associates working in their firms or that judges had of lawyers appearing before them in court. Some of the things that I heard about in both settings were eye-opening and might be examined through a sociological (or similar) view. How might institutional structures and the power relationships embedded within them form and perpetuate the current state of legal writing, at its best and at its worst?

As a final question, I asked, “How Should Legal Writing Be Taught?” This was the great pedagogy question, lurking behind everything else. It lurked there partly because almost all of us were teachers and partly because of the pedagogical slant to so many of the presentations that were being made at LWI conferences to date. The Institute had established its newsletter, The Second Draft, specifically to publish pedagogical materials and ideas, but I also thought pedagogical questions could be asked at a broader and more theoretical level. Joe Williams’s opening article in the first volume of the Journal, although built on insights from cognitive psychology, was also a piece on teaching.^[8] I thought that discussions of pedagogy, when grounded in something larger, could find a place in the Journal.

Those are some directions for the Journal that I came up with in 1991, but not, I knew at the time, an exclusive or exhaustive list. So, what do I think about them now? Two things, for sure. First, they are the product of a moment in time—basically, the end of the 1980s. For example, the prior two decades had seen fervent interest in the composing process and what was then called the “process approach” to teaching writing. This was revolutionary at the time, as writing teachers began to free themselves from the “think/write paradigm.”^[9] Questions two and four directly reflect some of that work. The same could be said of the plain language movement, which was sufficiently becoming of the moment that I felt the need to encourage people to look into it. Needless to say, were I to write that Foreword today, it would be pointing legal writing scholarship in different directions.

And my second thought about the Foreword concerns what I did not write about then but should have: interdisciplinary research and how it could enlarge our understanding of legal writing. Interdisciplinary approaches are built into many of the questions that the Foreword sets out, but I consciously chose not to name them as an interdisciplinary strategy or approach. Partly, I was trying to keep the focus on legal writing specifically—even, for example, when I would mention composing processes or reading strategies in the Foreword (both of which would rely on interdisciplinary research). But in hindsight, it is clear that legal writing scholarship lends itself to interdisciplinary approaches, almost inevitably, because of the richness of legal discourse and the many disciplinary avenues into it. Primary among these is, of course, rhetoric, both classical rhetoric (going back to the Socratic rhetoricians of classical Greece) and modern rhetoric (and its incorporation into composition studies). But there are also rhetoric’s modern counterparts, linguistics and sociolinguistics, as well as cognitive psychology, learning theory, and, of course, narrative theory, which has taken hold as the Applied Legal Storytelling movement. And so many other interdisciplinary approaches, too many for me to name. Legal writing scholarship is largely interdisciplinary.

An interesting benchmark came about twenty years after the first volume of the Journal, in Volume 16, when Linda Berger, Linda Edwards, and Terry Pollman published an article on the state of legal writing scholarship.^[10] In the years between the inaugural volume and that sixteenth volume, legal writing had decidedly become an established discipline. In their article, Berger, Edwards and Pollman spoke chronologically about legal writing scholarship, both noting the scholarship of the past and welcoming a new generation of scholars to the future.^[11] These authors had no hesitation about speaking of legal writing as a discipline, with its own scholarship and its own publishing forums.

That same volume of the Journal contained a total of eight articles for an event celebrating the twenty-fifth year of the Legal Writing Institute’s founding.^[12] By that time, legal writing was unquestionably its own discipline, and the Journal was there to celebrate the fact.

So, which was it, the chicken or the egg—or for our inquiry here, the discipline or the journal? Without intending to dodge the question, I am going to answer “neither” and confess to the shortcomings of binary questions. Rather, there is a third term that binds the first two together: “community.” Legal writing is first and foremost a community—in my personal experience, dating at least from that 1984 conference that led to the formation of the Legal Writing Institute. The attendees then, like most of us today, were people who taught legal writing, cared deeply about their students, wanted to offer the best instruction possible, and were hungry for more ideas about that. Along the way, they also wanted to support each other professionally and wanted to broaden and enrich their understanding of legal writing. An entire world has emerged since then of conferences, newsletters, journals, monographs, and workshops and forums designed to stimulate scholarship. In the process, these legal writing professionals have formed a community, with shared goals, shared understandings of the challenges they face, and a shared way of talking about them. That community provides a broad and solid base for what we now know as the discipline of legal writing.

And this journal, Legal Writing: The Journal of the Legal Writing Institute, now in its thirtieth volume, has both defined and supported the scholarship of that discipline. I could not be more pleased. It has published a range of articles that far exceeds anything I could have imagined back in 1991, a sign of the tremendous energy of our community and the possibilities that lie within the discipline which that community enables. With great humility, I must extend my gratitude and congratulations to the many editors who have worked on this journal, the scores of authors who have written for it, and the countless readers who have turned to it. I only ask that you now enjoy Volume 30 and, while doing so, relish your participation in the rich community from which this journal emerges.