Uniform, Supervised Programs: A Step Backwards for Legal Writing

Introduction

According to the authoritative Legal Writing Sourcebook, legal writing professors should have the same autonomy as other law professors; they should “enjoy the full measure of academic freedom, which includes the ability to choose course textbooks, design a syllabus, and create assignments.”^[1] At the majority of law schools today (about two-thirds as of 2024), writing professors have that freedom.^[2] But at other schools, the autonomy of writing professors is curtailed; they are required to teach uniform classes under the supervision of a director.^[3] In fact, I teach at a school where the teachers had autonomy but lost it when the school went back to uniform, supervised classes for the legal writing course.

To explain why writing teachers are sometimes not treated equally with other law professors,^[4] I will briefly review the history of legal writing programs. Then I will discuss, based on my personal experience, why I think uniform, supervised programs impede progress in the emancipation of legal writing faculty and should be abandoned. I will hypothesize why many law schools nonetheless continue to treat writing teachers differently than other law professors. I will argue that the solution is consistency rather than uniformity. Finally, I will present strategies for how legal writing professors can more effectively address the issues presented by the persistence of uniform, supervised programs.

I. The Origin of the Teaching Assistant Paradigm and Uniform Classes

Some of today’s legal writing professors may not be familiar with the history of legal writing programs. The primary reason I have that familiarity is because I am old enough to have lived through much of it. I went to law school in 1984. That was just after Stetson University College of Law famously published its “blueprint” for legal writing programs.^[5] At Stetson, legal writing was taught by a group of upper-class teaching assistants supervised by one full-time, tenured law professor.^[6] The professor held regular classes with the students.^[7] But the teaching assistants corrected student papers and met with the students to discuss revisions.^[8] That was how legal writing was taught when I attended the Northeastern University School of Law in the 1980s.

The reason for the supervision and uniformity of those early legal writing programs was self-evident. The teachers were themselves students, either recently graduated or still attending law school. They were not qualified to teach the classes themselves. They had to be given a course created by a full-time professor and then supervised by the same professor.^[9] In other words, the teaching assistant paradigm was created because it enabled law schools to offer legal writing classes without having to staff them with full-time law professors.

Sometime after 2000, law schools started hiring adjuncts (part-time teachers) to teach writing, and most of them were women.^[10] For that reason, legal writing was known then as the “pink ghetto.”^[11] Law schools had created “a new caste system, and the lowest caste [was] occupied by women [clinicians and legal writing instructors].”^[12] A reason for the “ghetto” status of legal writing was “the lower regard some in the legal academy [had] for the discipline itself.”^[13] They viewed legal writing courses as “anti-intellectual, practical (in the pejorative sense), and separable.”^[14] They “trivialize[d] the curricular role of legal writing courses and . . . cheapen[ed] its instructors.”^[15] My first teaching job was as an adjunct in a uniform, director-supervised legal writing program. I remember thinking it was like teaching a “course in a box.” The director created the course, and the teachers followed the director’s instructions for each class. Back then, I was still practicing full-time and had no teaching experience. I was happy teaching with a director’s guidance. If it were not for her, I would not have known what to do.

Law schools subsequently hired full-time teachers to teach writing.^[16] Consistent with the improved faculty status of legal writing professors, law schools moved away from director-led programs.^[17] In programs that retained a director, the director’s role changed from supervisor to coordinator (i.e., their role was administrative, not supervisory).^[18] In addition, the full-time writing professors had the same autonomy as other law professors and were responsible for creating and administering their own classes.^[19] That’s what being a writing teacher was like when I started teaching full-time. The trend has continued since then, and the autonomous model is how legal writing is taught at most law schools today.^[20]

II. Teaching in a Uniform Legal Writing Program

I recently had the experience of teaching in a writing program that had previously been autonomous but then converted back to a uniform program where extensive collaboration was required, and the teachers were supervised by a director. In the new uniform program, we were obligated to use the same textbook, follow the same schedule, use the same assignments and assessments, and assign the same percentages for grading each assessment. Also, we were required to work with the director to determine the uniform syllabus, assignments, and assessments for the course.

In a uniform program, professors do not have the freedom to deviate from the uniform curriculum. So, there were occasions when I was put in the position of having to do something I thought was a mistake. And there were also times when I was restrained from doing something I thought would be beneficial for my classes. For me, teaching in a uniform program was like taking a step backwards to the way I taught years ago when I was an adjunct. It was like being a full-time teaching assistant. Based on my experience, there were more disadvantages than advantages to administering a uniform program with full-time professors.

A. The (Questionable) Advantages of Uniformity

You might think a group of teachers working together would perform better than any of them working alone. But my experience did not support that conclusion. Some teachers become passive when they work in a group under supervision. They go with the flow and don’t question the actions of the director or the group. Also, the teachers with the best ideas are sometimes not the ones who have the biggest impact on group discussions. Instead, teachers who form alliances and create subgroups often have the most influence. If you are someone who does not have that influence, you end up teaching a class that is not your own. You end up functioning like a full-time teaching assistant.

You might also think that dividing up the tasks of creating new assignments and assessments every semester would make teaching the class less burdensome. However, I did not find working with a supervised group to be more efficient than working alone. The process of working through potential assignments and coming to a consensus on what everyone will teach was sometimes bureaucratic and time-consuming. In the program I was involved in, group meetings were held all summer long.^[21] I don’t normally need to spend the entire summer preparing for the fall. As a result, I think efficiency is better achieved through voluntary collaboration, a practice unsupervised legal writing professors have a long history of engaging in.

Inexperienced writing teachers may also like participating in a uniform program, like I did when I first started teaching. Someone who is just starting out needs direction to help them learn how to teach the course. The director and other teachers in the program may provide some of that guidance. But, again, I think voluntary collaboration or an assigned mentor would better achieve the same result.^[22] Also, inexperienced teachers eventually become experienced. The reason a uniform program was a good fit for me fifteen years ago is the same reason it is not a good fit for me today.^[23]

B. The Disadvantages of Uniformity

I found that a uniform program lacked the flexibility I needed to adapt to differences among students. For example, I gave a uniform memo assignment involving tort law to two legal writing classes. One class had already taken torts and civil procedure; the other had not yet taken either class when the project was assigned. It wasn’t “fair” to give the same project to both classes and then require them both to adhere to the same schedule, but that’s what I was required to do. In a uniform program, everyone must use the same assignments and follow the same schedule.

A uniform program also lacked the flexibility to allow me to play to my strengths as a teacher. For some teachers, their strength is their prior practice experience; for others, it is their academic background or teaching experience. I usually feel like I have a strong rapport with my students. I remember an occasion when there was a problem with a uniform assessment we gave the students. I would have felt comfortable talking to them about it and resolving it. But the director preferred that the assessment not be discussed once it had been distributed. I was told it would be “unfair” if I talked to my students and other students were left in the dark. As a result, I was prohibited from handling the issue that way with my class.

Another disadvantage of uniformity is that it makes it difficult to innovate. I would have liked to incorporate artificial intelligence into an assessment for my classes, and I would have liked to use a NextGen Bar Exam-style assessment for my classes too (e.g., give the students a case file and ask multiple choice and short-answer questions for the assessment). But not everyone is comfortable yet incorporating those topics into their classes. If I had suggested doing that in a uniform program, I would have had to persuade the director and everyone else to do what I wanted. If they didn’t agree, I would have been prohibited from doing the assessments differently in my classes. As a result, I was incentivized not to innovate but to conform.

III. Rationales for Reverting to Uniformity

Reverting to a uniform program gives a law school more control over writing professors. One reason a law school might want that control is to deal with student complaints of “unfairness,” especially in first year classes. For example, students will complain if some classes are required to write a twenty-five-page memo for an assessment, while other classes are only required to write a five-page memo. But they will likely not take issue if one class is required to write a memo on a civil law issue, and the other is required to write a memo on a criminal law issue. I personally think a law school should not placate students by requiring professors to address these types of complaints. But even if a school disagrees, consistency, not uniformity, is all that is needed. The assignments don’t have to be identical; they just have to have the same page limits to keep the students happy.

A school may also reason that taking control over a program is justified because the school is not satisfied with the performance of one or more writing professors. There may unfortunately be some teachers who take advantage of the autonomy they have, e.g., by not giving their classes formative assessments or by using the same assignments and assessments over and over again. But the school should deal with those professors individually, rather than attempt to resolve those issues by taking control away from everyone. It wouldn’t make sense for a teacher to punish an entire class because of one or two students’ conduct, and it doesn’t make sense for a law school to treat writing teachers that way either.

I have also heard it suggested that reverting to uniformity is consistent with the recently adopted revisions to ABA Standard 302, which will require that all sections of a required course have uniform minimum learning outcomes.^[24] However, nothing in the new standard requires courses to have the same textbooks, schedules, assignments, and assessments. And the rule does not single out legal writing for differential treatment. In fact, the Legal Writing Sourcebook makes clear that the uniform approach is not an appropriate way to run a legal writing program.

IV. The Solution Is Consistency, Not Uniformity

According to the Sourcebook, “[c]onsistency, not uniformity, should be the goal” of a legal writing program.^[25] Law schools should not be taking away the autonomy of legal writing faculty. Rather, full-time legal writing professors should “enjoy the full measure of academic freedom, which includes the ability to choose course textbooks, design a syllabus, and create assignments.”^[26] Also, although close supervision by a director may be appropriate for programs that rely on adjuncts, it is not appropriate for programs that rely on full-time professors.^[27] In the latter situation, “the director must ultimately respect the academic freedom of [their] colleagues.”^[28]

So, instead of requiring everyone to use the same assessments, professors could agree on page limits for the memoranda students are required to produce so that the assessments are consistent, not identical. Instead of requiring everyone to follow the same schedule, professors could agree on the length of time students will be given to complete those memoranda, so that syllabi are consistent, but not necessarily the same. If some professors are not giving their classes formative assessments, the school could require that everyone give a minimum number of assessments each semester. If a professor is using the same assignments repeatedly, the school could require teachers to use different assignments every semester. By making consistency, not uniformity, the goal, law schools could address these issues without taking away the autonomy of writing professors.

V. We Need to Address the Reasons We Are Treated Differently

In my opinion, the reason some law schools impose uniformity on writing teachers, but not the rest of the academy, is because those schools continue to value teachers who teach “skills” classes less than tenured law professors.^[29] Schools are ranked largely based on the reputation of their tenured faculty,^[30] and that reputation is primarily earned by publishing law review articles in prestigious journals. The skills taught in the legal writing course are more valuable to the students who learn these skills and the law firms that hire them after graduation. But scholarship is more valuable to the academy and, as a result, law schools hold tenured law professors in higher regard.^[31]

You can see circumstantial evidence of that value system in the US News and World Report rankings. The lowest ranked specialty at the top three law schools in the country is legal writing: top-ranked Stanford University’s legal writing program is ranked number 96,^[32] Yale University’s legal writing program is ranked number 107,^[33] and the University of Chicago’s legal writing program is ranked number 102.^[34] Clearly US News and World Report, and the law schools it ranks highest, value legal writing less than other specialties. As a result, one might reasonably expect that a law school attempting to go up in the rankings would also value legal writing less than other specialties.

To change those attitudes, I propose that legal writing faculty focus on three strategies. First, we need to write more articles for scholarly journals and fewer newsletter essays. We can’t be complacent. We need to do more of the kind of writing tenured law professors respect. Second, we should consider focusing on a substantive topic in our writing classes for the same reason. The tenured faculty value what they teach: substantive law. And third, we should do more to reach out to those who have a stronger interest in what we teach: practicing lawyers.

A. We Should Write More Law Review Articles

Engaging in scholarship is very difficult for writing teachers because of the demands of what we teach.^[35] Despite this, legal writing teachers have been able to make substantial contributions to the scholarship of the academy, and we need to continue to make those contributions. But we need to do more than just write pedagogical essays; we also need to write articles for law journals. The academy values law journal articles more than essays. And articles in prestigious journals are valued more than articles published by journals that are not highly ranked. Writing professors need to understand this is the rubric the rest of the Academy uses to assess their value to the institution. I have written a lot of articles and essays, but I never really concerned myself with where they were published. In the future, I’m planning to write more journal articles and fewer essays for newsletters.

I think law schools should also do more to support and incentivize writing professors who engage in scholarship.^[36] Tenured law professors often receive a stipend to write over the summer. They have access to research assistants to help them write law review articles. And law schools are obligated to give them sufficient time to engage in scholarship.^[37] Legal writing professors should have access to some of that support and be incentivized to contribute to the school’s reputation by writing more.

B. We Should Teach Substantive Legal Topics

In the same way that the academy values law journal articles more than essays, I think it also values the teaching of substantive law more than skills. However, legal writing classes are not just classes on how to write well; they also teach students substantive law.^[38] For instance, a torts class teaches analysis, just like a legal writing class does, and a legal writing class teaches substance, just like a torts class does.^[39] In fact, legal writing classes teach more depth with regard to specific legal questions than other doctrinal courses.^[40] And legal writing is itself doctrinal.^[41] “Thus, the traditional labels are . . . inaccurate and unfair to ‘skills’ courses . . . .”^[42] Instead of being labelled “skills” courses, legal writing courses should, in my opinion, be labelled “Lawyering I & II” or “Introduction to Law Practice” and “Introduction to Litigation Practice.”

In addition, we should consider offering writing classes that specialize in a substantive law topic we have expertise in. I have a lot of experience with contract drafting and business litigation. So, for example, I could teach a first semester legal writing class that specializes in contract law, and a second semester persuasive writing class specializes in business litigation. In fact, upper-year skills classes already do this. I teach a generic contract drafting class, but I also teach a drafting class that specializes in real estate contracts. Clinics also specialize in specific areas of law. There are no general law practice clinics. Instead, there are, for example, veterans’ rights clinics, immigration law clinics, and environmental law clinics. I think legal writing classes might be more respected if they worked the same way.

C. We Should Do More Outreach to Practicing Attorneys

Legal writing teachers may also have more influence in the academy if we make more of an effort to build relationships with practicing lawyers. I think the law firms and lawyers who hire students from the schools we teach in have the strongest interest in what we do. Law firms and lawyers who make significant donations to the law school also have substantial influence over the school’s policies and practices.

For those reasons, we should consider soliciting feedback from practicing lawyers. We could, for example, survey them to solicit their opinions on the strengths and weaknesses of our students. Are there some areas where we need to do more? Are there others where what we teach is not consistent with local practice? How well prepared are our students after they graduate?

We should also consider inviting practicing lawyers to come speak to our classes. They could tell the students what skills are important to work at the firm. They could describe what young associates do at the firm. And they could begin to make connections with the students in our classes.

Assuming the message these lawyers deliver is consistent with what we teach, that will add credibility to our classes. Students won’t just think of Legal Writing as a two-credit course that primarily consists of just doing what the professor wants. They will understand that what we teach is what their employer will be expecting them to do after graduate. And they will have an incentive to spend more time improving their writing skills.

Conclusion

After teaching in a uniform program, I felt compelled to speak up in defense of my own autonomy and the autonomy of everyone else who teaches legal writing. Academic freedom includes the right “to speak one’s mind without fear of reprisal.”^[43] If there were ever a reason to “speak one’s mind,” it would be to defend our own freedom and autonomy. I teach at a great law school with very talented writing teachers who have a lot to offer their students. And I feel strongly that legal writing professors should not be treated differently than anyone else in the academy when it comes to how we teach.

If the imposition of uniform legal writing programs becomes a trend, then we will have come full circle, except we will be full-time teaching assistants instead of part-time teaching assistants. If that happens, it may be a long time before we can get our autonomy back. The freedom professors lose in a uniform program is the control the school and the director gain when uniformity is imposed. Once uniformity is imposed, both the school and the director have an interest in retaining that control. If the program is successful, they have an interest in crediting uniformity and their decision to impose it as the reasons. And it is unlikely they will be willing to change back to the way things were.

I don’t think it is in our interest to let that happen. We can’t let our past achievements lull us into today’s complacency. We need to continue to demonstrate our value to the academic community, and we need to speak up the defense of our own autonomy. Otherwise, we risk losing the progress we have made. Uniform programs are nothing new. They were abandoned long ago because they are unnecessary and inappropriate. Legal writing professors should have the same autonomy as other law professors. Legal writing programs should at most be consistent. Full-time law professors should at most be coordinated. Uniform supervised programs are a step backwards for legal writing and should be abandoned.