Writing Lessons from Abroad: a Comparative Perspective on the Teaching of Legal Writing

Abstract

With a few exceptions, American legal writing pedagogy has not been adopted in any meaningful way in foreign countries. At most, it has garnered some attention in Legal English courses, but has otherwise received scant reception in foreign universities and little academic interest by continental and other civil law academics. This article explores the stark differences found in legal education between various countries as it relates to the teaching of legal writing.The reason transplantation, or borrowing, of American legal writing pedagogy has not occurred is due to the deep structural differences between the American legal education system and the education system found in most other countries, especially civil law countries. For example, many law schools in Western Europe require up to three years of apprentice experience before admitting a person into the practice of law. This apprentice requirement is in stark contrast to the general absence of any apprentice or internship requirements in the United States prior to being admitted to the practice of law as an attorney. This absence of an apprentice period in the United States’ legal education system gives a greater urgency to the teaching of legal skills – particularly legal writing – in American law schools. In addition, the market-based system of legal education found in the United States has shifted the cost of teaching legal writing from law firms and other legal employers to law schools, in contrast to most continental legal systems where employers (or government subsidies) provide such training. The fact that legal education in most civil law countries combines undergraduate and professional education and urges students to specialize in their legal education for particular careers (be it in the judiciary, academia, prosecutors’ offices, or general practice) also makes the American-style legal writing program less compelling to these countries. Generally speaking, continental legal education begins earlier for most students (usually age nineteen or earlier), runs longer (usually five years), and provides foundational courses such as history and philosophy in the initial years of study. In contrast, American law students come to law school with a variety of backgrounds and training, and the American legal writing classes found in its law schools provide a remedial and leveling function for American law students whose undergraduate training did not provide for skills needed for law studies. This article does not argue that it is impossible, impractical, or unimportant to try to transplant legal educational methods from one system to the other. Quite the contrary, American and civilian law schools share the same basic pedagogical goal which is to train skilled lawyers and legal professionals. As a consequence, the teaching of skills such as legal writing should be a high priority in both education systems. The structural differences, however, cause each system to have varying strengths and weaknesses in the teaching of skills, particularly in the field of legal writing. An examination of these differences provides a useful point for learning and profiting from the other’s experiences.