Welcome to Volume 26 of Legal Writing: The Journal of the Legal Writing Institute. As I write this, we have just entered into the third year of living with the COVID-19 pandemic, and Volume 26 is our second volume written and edited in this new environment. Many of us spent 2020 and much of 2021 teaching online (primarily over Zoom), returning to in-person classrooms only in fall semester of 2021, and at many law schools, both faculty and students have until spring 2022 interacted in class from behind protective masks intended to protect us against transmitting the virus to each other. It’s been challenging to form meaningful student-teacher (and student-to-student) relationships in these conditions, and to find the attention and concentration to write and edit scholarly work. Nevertheless, the Journal is gratified by the interesting and thoughtful articles, essays, and book reviews that we have received as submissions, and that we offer in Volume 26. I’m very grateful to the members of our Editorial Board for their hard work this year under more difficult than usual conditions; despite the pandemic, we are accomplishing more than ever this year. We launched a new and improved website for the Journal in Fall of 2021, and for the first time ever, we will be publishing two issues during a single year. In addition to Volume 26, later this spring we will publish a symposium issue based on a symposium that was co-hosted online by the Journal and the Legal Writing Institute at Northwestern Pritzker School of Law in Chicago in Fall 2021, on the theme of “Artificial Intelligence and the Legal Profession.”
To begin, I’d like to introduce you to the four articles we are publishing in Volume 26:
Our first article is the innovative Finding the Right Angle: Lessons from Mathematics for the Legal Writing Classroom. In this article, Professor Maria Termini expands on her previous work that posited similarities between mathematics and the law, and discusses ways in which the similarities between mathematical reasoning and legal reasoning can inform legal writing pedagogy. Professor Termini summarizes logical and organizational similarities between mathematical reasoning and legal reasoning, examines how law professors can use the concept of “transfer of learning” to build on law students’ prior encounters with mathematical and logical reasoning, and discusses how legal writing professors can use techniques that mathematics educators have found useful in teaching reasoning skills.
In her article Problematic Problems, Alison M. Mikkor discusses the challenges of using problems in legal writing courses that address human trauma, and argues that “the time has come for legal writing professors and professors across the legal academe to apply the well-developed body of trauma informed pedagogy (TIP) literature to their teaching.” Professor Mikkor points out that trauma has always been present in law school classrooms, both in the form of traumatic life experiences that students bring with them, and in legal hypotheticals and writing problems that are used in law school pedagogy. She argues that although grappling with these topics may disturb students and reawaken the traumas they have experienced, it’s important for law students to learn to wrestle with these issues because they are going into a profession where their task is to help other people solve problems. The article provides a primer on trauma, reviews and synthesizes the TIP literature, and proposes and describes a trauma-informed approach to legal problem design.
Ann Sinsheimer & Omid Fotuhi’s Listening to Our Students: Fostering Resilience and Engagement to Promote Culture Change in Legal Education considers the need for a cultural change in legal education that would foster more resilience in law students, and how such a cultural change could be brought about. The article was written by two academics, Ann Sinsheimer, a Professor of Legal Writing at the University of Pittsburgh School of Law, and Omid Fotuhi, a psychology researcher who is a Research Associate at the Learning Research and Development Center at the University of Pittsburgh. Together with other Pitt Law educators including Andrele Brutus St. Val and Jacqueline Lipton, they worked on a three-year research program that “uses mindset to promote resilience and engagement in law students.” The project used psychological interventions “to help students bring adaptive mindsets to the challenges they face in law school.” The authors describe how they began the project before the COVID-19 pandemic, and how the pandemic caused them to expand and deepen the project to respond to changed conditions of attending law school during the pandemic.
Turducken™ Legal Writing: Deconstructing the Multi-State Performance Test Genre by Kaci Bishop and Alexa Z. Chew examines the efficacy of the Multistate Performance Test (MPT) as a tool for teaching and testing legal writing and professional communication skills both on the bar exam and in the law school classroom. The article examines the literature on the nature of the MPT as a test of lawyerly competence and as a teaching tool, assesses the MPT’s efficacy as a performance test and as a useful teaching tool, and suggests connecting the testing and teaching aspects of the MPT by thoughtful pedagogy that promotes both essential legal writing skills and essential test-taking strategies.
Essays on Race in the LRW Classroom:
In the wake of the racist killings of George Floyd, Ahmaud Arbery, and other Black Americans over the past few years, Americans have been grappling with the impact of both individual and structural racism on our society. Racial inequality impacts all aspects of society, including the environment of higher education. In response, the Journal decided to devote the essay and book review portions of Volume 26 to the impact of race in our educational environment. We put out a call for essays and book reviews around the theme of “Race in the LRW (legal writing and research) classroom.” With regard to essays, our call asked:
Do you incorporate issues of race into your assignments or in how you approach teaching? How? What are some of the benefits you have noticed? Did you encounter any obstacles and if so, how did you address those?
How does race affect your or your students’ experiences in the LRW classroom?
How do you ensure your LRW classroom is an inclusive space?
How did the recent spotlight on police brutality, the #BlackLivesMatter movement, or the social unrest of the past year impact your teaching or scholarship?
In response, we received a robust submission of essays. We are happy to share the following essays:
Professor Beth Wilensky of Michigan Law argues in her essay Race Belongs in Week One of LRW that the subject of race and the law belongs in the legal writing classroom from the very first week. Professor Wilensky explains how she used to avoid discussing race in her course because she feared it would be uncomfortable, but then realized that race may be relevant to the decisions in many cases and therefore relevant to legal writing hypothetical problems even if the courts in the cases being used don’t discuss the race of the parties. It’s important to help students understand both how to make legal arguments in the context of tests that don’t acknowledge the significance of race, and to help students learn to advocate for consideration of race as a factor when it is relevant to the issues before a court.
Despite their academic and professional achievements, it’s common for law students to suffer from Imposter Syndrome, and it’s likely they’re disproportionately students of color. The essay Identifying the Imposters in Your Legal Writing Classroom from Professors Barbara Hoffman & Amy H. Soled of Rutgers Law offers suggestions for addressing Imposter Syndrome in our students. The authors explore why “[s]tudents in the minority of a student population demographic tend to experience the imposter syndrome at a greater rate than students who are in the demographic majority,” and how this disadvantages them in the legal writing classroom and in legal practice. The authors then discuss how professors can address imposter syndrome, by directly discussing it with students, finding ways to encourage class participation, and creating assignments that reflect issues that impact diverse communities.
The Medium is the Message: A Summer Book Club on Abolition tells the story of a book club run by Professor Sarah J. Schendel of Suffolk University Law School. Professor Schendel discusses how her desire to learn how to have the courage to say “I don’t know” to students led her to organize a book club for students on prison and police abolition, centered around discussion of Mariame Kaba’s essay collection We Do This 'Til We Free Us. The book club, for rising 2L students, met once a week for a month, consisting of hour-long discussions led by Prof. Schendel followed by more discussion among the students. Students found valuable the chance to discuss in depth a topic crucial to our present societal moment, and to do so in a smaller, safer, more informal environment than their law school classes.
In her essay Race and Lawyering in the Legal Writing Classroom Professor L. Danielle Tully of Brooklyn Law proposes that race can—and should—be part of legal-writing instruction. The author shares five concrete ways to accomplish that with examples from her own classroom: first, use your syllabus and course policies to acknowledge that learning the law requires students and faculty alike to grapple with issues of race, social inequities, and power. Second, use your beginning-of-the-year introductory questionnaires to encourage students to tell you things about themselves that help them to connect their pre-law selves to their law selves, rather than running down a set of qualifications or pedigrees. Third, teach critical case reading and the skill of identifying gaps and silences in texts, to help students learn to recognize the interactions between language, law, and power. Fourth, use anonymous grading and rubric-based feedback to “interrupt” conscious and unconscious bias in assessing student work. And finally, ask students to engage in periodic facilitated reflection to foster professional identity.
Our call for book review submissions asked what LRW faculty have been reading to better understand and grapple with race in the context of their teaching and/or scholarship, and whether they had found any books on legal writing or communication particularly responsive to current concerns that they felt the legal writing academy should be reading.
Our first featured book review, by Professor Jamie R. Abrams, is of the book What Inclusive Instructors Do, by Tracie Marcella Addy, Derek Dube, Khadijah A. Mitchell, and Mallory E. SoRelle. As Professor Abrams explains, the book “is based on the experiences of hundreds of instructors across numerous institutions, fields, and ranks describing both what inclusive teaching is and how to achieve it.” Professor Abrams explains that What Inclusive Instructors Do considers the meaning of “inclusive” teaching, the pressing need for making teaching in university settings inclusive, and the obstacles and barriers to doing so. The book then goes on to explore how to achieve inclusive teaching, by learning about the demographics and life experiences of our students and their unique needs, and by designing courses to meet student needs. Professor Abrams finishes the review by discussing the book’s lessons for legal writing and research courses and lessons for all law teaching.
Professor Shelley Ward Bennett reviewed You Are Your Best Thing, an anthology edited by Tarana Burke and Brené Brown, in which, according to Professor Bennett, “twenty of today’s leading Black authors, educators, artists, and activists share deeply personal accounts of their own experiences with the insidious effects of racism in a culture that advertises, but often fails to deliver, the promise of equal access and equal treatment.” Professor Bennett writes that studying this anthology can help legal writing professors support Black students by learning to understand the generational trauma of racism and how living with these experiences has shaped their law students, develop an appreciation for differences in life experiences, and recognize the challenges facing Black law students and implement strategies to support them through their law school experience.
Finally, Professor Brian N. Larson reviews Catarina Dutilh Novaes’ book The Dialogical Roots of Deduction: Historical, Cognitive, and Philosophical Perspectives on Reasoning. Catarina Dutilh Novaes is a professor in the Department of Philosophy of the Vrije Universiteit Amsterdam. The Dialogical Roots of Deduction examines the nature of the deductive method and its roots in argumentation. Dutilh Novaes is a theorist on argumentation and critical theory. Her principal claim in the book is that deduction has dialogical roots and that those roots are still present in the practice of deductive argumentation. She also posits that deduction is a product of cultural processes. The book sets out Dutilh Novaes’ claims, makes arguments about how deduction works, and also examines non-Western traditions of logic. Larson’s review concludes that “This book is well worth the time of scholars of legal theory, argumentation, rhetoric, and communication who wish to engage with arguments about the appropriate role, if any, of deduction and IRAC or CREAC in legal reasoning.”
Elizabeth L. Inglehart
Legal Writing: The Journal of the Legal Writing Institute