Legal Writing Research Articles

Designing and Teaching a Course in Legal Research and Writing for Master in Legal Studies Students

In the academic year 2013–14, the University of Arizona James E. Rogers College of Law (College of Law) initiated its Master's in Legal Studies (MLS) Program, joining approximately 30 other schools that recently have begun to offer a similar degree.1In 2013, The National Law Journal reported that “nearly 30 law schools” have or soon will offer a master's degree for nonlawyers, a significant increase from two years earlier. Karen Sloan, Law for Laymen, 35 The National Law Journal and Legal Times 7, 9 (2013). A recent online search for master's degree programs revealed 32 programs. The reasons offered for the recent addition of graduate degrees in legal studies intended for students who do not wish to practice law are (1) economic motivation of the institution resulting from a significant decrease in the number of JD applications, and (2) a perception that many nonlegal professionals who work with law in some capacity are seeking further knowledge and expertise in law, legal analysis, and communication. Beginning in the spring semester of 2014, the College of Law offered an Introduction to Legal Research and Writing Course for MLS students. This article describes the objectives, content, and organization of the course, examines some of the theory underlying legal research and writing instruction, and reflects on the outcomes of the course.

The Value of Legal Writing, Law Review, and Publication

While highly developed communication skills contribute substantially to success in other professions and in our personal relationships, legal research and writing is likely the foundation for a successful career in the law. Law review articles are cited by judges in their opinions, and by Congress and regulatory authorities in the making of law, regulations, and policy. Any great legal orator, litigator, or Supreme Court Justice will need the benefit of quickly recognizing legally significant fact patterns, the ability to conduct research regarding statutory and case law, and the ability to make compelling, cogent legal arguments. The experience gained from legal research and writing sharpens all these tools. I’m hopeful this article may become required reading as one of the first assignments for all incoming 1Ls, or even before any classes begin. Presented first, is a brief examination of why lawyers don’t write well. Next, is a description of the law review: its value; a brief history of the American law journal experience; the editor selection process; who does what at law reviews; and the number and type of law journals. Thoughts about the writing process and important considerations regarding law review writing in particular are then presented. Reflections by recent law journal editors about their law review experience are offered next, along with suggestions about how authors may improve their manuscripts. Then, the who, what, where, and when of the publication process is covered. Comments about the Social Science Research Network (SSRN) are followed by a brief discussion about the currency value of citations. I believe this article starts a fresh conversation about the importance and value of legal writing, law review, and law journal publication.

Legal Writing: A Doctrinal Course

Legal writing instruction in American law schools has come a long way. Although scattered experiential courses and co-curricular activities have existed since legal education moved into a university setting, the modern era of skills education began in the 1950s and 1960s, with the creation of live-client clinics at many law schools. Early legal writing programs soon followed, moving into the main stream of curricular reform during the 1980s and 1990s. As these new courses and new instructors moved into the academy, the language of legal education naturally changed. Law faculties found themselves wanting to describe these new additions to the curriculum and the new teachers hired to teach them. For law faculties, the need for new language arose from the presumed need to distinguish their own “traditional” courses from these new offerings and to distinguish themselves from these new teachers.To refer to courses like legal writing, clinics, client counseling, negotiations, externships, and trial practice, law faculties used terms like “skills” courses, “experiential” courses, “lawyering” courses, or “practice” courses. Sometimes courses in the other category – that is, courses like contracts, torts, tax, wills, and civil procedure – were described as “traditional” or “regular,” but before long, the most commonly used term was “substantive.” As the years went by, however, some law faculties learned more about the content of skills courses and came to a greater respect for both the courses and the teachers. Today the term “substantive” is heard less often in discussions of law school curricula, largely because describing non-skills courses as “substantive” incorrectly implies that skills courses have little substance.A number of newer terms have arisen to replace the word “substantive,” but perhaps the most common is “doctrinal.” Is “doctrinal” a better option? This paper explores the meaning of the term and finds that legal writing does, indeed, have its own doctrine. The paper therefore suggests avoiding the term “doctrinal” when it is used to distinguish legal writing from other courses. It also explores how the story of legal writing’s creation has limited early views of legal writing’s doctrine and makes some suggestions for addressing those limitations as the discipline matures.

Experiential Legal Writing: The New Approach to Practicing Like a Lawyer

Law students engage in various types of “experiential” learning activities while in school, such as clinics and externships, but they graduate without the experience necessary to practice law. This is traceable to a glaring deficiency at most law schools: a writing program that is comprehensive, properly sequenced, and integrated across and throughout the law school curriculum. First, most graduates have never drafted the documents they will encounter in law practice. Additionally, they have not drafted and re-drafted such documents while also participating in real-world simulations as they would in actual practice. Instead, students graduate having drafted an appellate brief, a contract, and maybe a complaint, and having participated in one or two oral arguments. That is akin to a medical school graduate who has perfect knowledge of human anatomy from the waist up. When a patient is carted into the emergency room with a broken leg, the medical school graduate will stand there confused and unable to diagnose or treat the patient. Law graduates face the same problem. They cannot competently solve legal problems unless they have experience in the all the parts and sub-parts of the dispute resolution process, and grapple with complex facts as real attorneys would in an actual litigation. Second, law students do not draft litigation and transactional documents in the order that they would draft them in actual practice. They do not understand that good writing is re-writing, not merely revising. Students do not have a practical understanding of the role and purpose that litigation and transactional documents play in the dispute resolution process, or learn to exercise strategic judgment as writers, counselors, negotiators, and advocates. Graduating without a contextual understanding of law practice — and outstanding persuasive writing ability — leaves students without many essential skills.The authors’ experiential legal writing model has two components: large-scale or cross-curricular sequencing, and small-scale or intra-curricular sequencing. In large-scale sequencing, which is applied in the first year of law school only, doctrinal and legal writing faculty design a cross-curricular hypothetical fact pattern containing legal issues from all first-year courses, and then design sequential writing assignments (and simulations) as they would occur in actual practice. Small-scale sequencing occurs exclusively in the legal writing curriculum and consists of two subcomponents. First, students receive a multi-issue hypothetical in the first year that is chronologically sequenced and takes students through each step of the litigation and transactional process. In addition, the legal writing programs extend over all six semesters of law school, thus giving students sufficient time to practice and develop their writing skills on a variety of documents. The goal is to produce graduates who are outstanding re-writers, not just good writers, and who can practice, not merely think, like lawyers.

Report: Employer Preferences for Writing Samples Based on Data Gathered from the New Legal Writers Survey

The New Legal Writers Survey (NLWS, http://nlws.web.unc.edu) is an anonymous, IRB-approved, online survey of legal employers. The purpose of the survey is to gather data about three main areas of inquiry: (1) writing samples preferred by employers: survey questions inquired about writing sample preferences tied to employer size and type (e.g., public or private sector) and stage of a law student’s career (e.g., 1L or recent graduate). (2) Document types that new legal writers write: survey questions inquired about the types of documents (i.e., “genres”) that new legal writers are expected to write at different phrases of their early careers. Questions also inquired about the methods that legal employers expect new legal writers to employ when approaching unfamiliar document genres. (3) Supervision of new legal writers: survey questions inquired about the methods used by legal employers when supervising new legal writers, the challenges faced by legal employers when supervising new legal writers, and the good and bad moves that new legal writers tend to make on the job. This Report analyzes the preferences regarding writing samples only, expressed by legal employers who took the NLWS in the fall of 2013. The Report breaks down their responses into three areas of inquiry: (1) preferred document length; (2) preferred document type (i.e., genre); and (3) preferred document topic. We cross-referenced these preferences with employer type (e.g., private firm or public interest) in order to provide advice to law students who are applying to jobs so that they can best tailor their writing samples to the preferences of employers. The survey remains open on the NLWS website if you would like to participate.

Designing Spaces: Planning the Physical Space for a Legal Writing Program

Very little has been written about designing new law school buildings or renovating existing law school buildings. There are a handful of articles about the process of building a new law school, or about a dean’s legacy being reflected in a building. Other articles have been written about designing law school libraries, and about building law libraries for other patrons. Law school rankings often reflect student satisfaction or dissatisfaction with the school’s physical plant. But almost nothing has been published about creating spaces for skills-based programs such as clinics7 and writing programs, despite the special considerations that apply to those parts of the law school’s educational program. This article describes what went into the renovation of existing space within the Duquesne University School of Law to accommodate a new legal research and writing program and offers suggestions to others who may be embarking on a similar endeavor.

Text Work as Identity Work for Legal Writers

The authors conduct an analysis of a number of first year and practitioner legal writing texts in order to examine whether and how these texts focus on the development of a legal identity; in particular, through creation of a personal, professional, or discoursal voice. The question of creation of a legal identity is significant, in part, because of the increased focus on teaching and learning professionalism and professional behaviors, both within law schools and in practice. The authors conclude that there is a limited focus within the texts on the identity work inherent in learning to write with authority under conditions of uncertainty. The social practice of writing tends to be under-emphasized.

Selected Columns from The Scrivener: Modern Legal Writing

From 1991 to 2007, Professor DuVivier authored The Scrivener, a bimonthly column on legal writing for Colorado’s state bar journal, THE COLORADO LAWYER. Professor DuVivier’s approach in her 97 Scrivener columns was to render each topic, from communication to commas, both understandable and entertaining. While many columns covered basics, others brought her unique perspective, e.g., The Aikido Technique for Rebutting Opposing Authority (Jan. 2002); Vulcan Mind Melds and Picture Windows (Jan. 2004); and Learn to Write “Like the Man on the Six O’clock News” (Nov. 2006). This collection lists all column titles and includes some of the “best-of” The Scrivener series.

National treatment in international trade and investment law

The objective of the study is to make a comparison between the standard of national treatment in international investment law and the standard of national treatment in WTO law. Even if similar issues may appear under EU law, the focus of this study is international investment law and WTO law. We will look at international treaties, legal writings and judicial sources (arbitral awards, and panel or Appellate body decisions) in order to establish the similarities and differences are between the two standards of treatment. The study will aim to provide a clear analysis of article 3 paragraphs 1–3 of GATT (General Agreement on Tariffs and Trade) as well as different provisions contained in investment treaties, in reference to the standard of national treatment. The study hopes to offer some guidance on how the two standards of treatment relate to one another, which could prove very helpful for different national and international organizations and institutions when negotiating Investment Treaties or Free Trad...

The House Always Wins: The World Trade Organization, Online Gambling, and State Sovereignty

** Jordan Hollander graduated in 2014 with a J.D., summa cum laude from Rutgers-Camden School of Law, where he served on the Rutgers Journal of Law and Public Policy as the Submissions and Symposium Editor and was the recipient of the Rutgers School of Law-Camden Outstanding Achievement Award and the 2014 Blaine E. Capehart Award for Legal Writing Excellence. Mr. Hollander presently serves as the law clerk to the Honorable Francis J. Vernoia, P.J.Cr. in the New Jersey Superior Court. The author would like to thank Professor Stacy Hawkins and Professor Stephen Schrier for their helpful guidance and comments.

Ethics, Law, and Humanitarian Intervention:

Ethics, Law, and Humanitarian Intervention:

Take a (Cognitive) Load Off: Creating Space to Allow First-Year Legal Writing Students to Focus on Analytical and Writing Processes

This article examines the ways in which excessive cognitive load interferes with the process of learning analytical doctrine, with a particular focus on the doctrine of legal writing. It suggests methods for reducing cognitive load to bring law students’ undivided attention to the acquisition of doctrine.

Is There a Criteria in Legal Writing That Can Guarantee Success?

Writing can be an intellectually challenging task for young postgraduate law students or lawyers in their early years. This article aims at facilitating young lawyers to seek their 'voice' taking Competition Law and more precisely Resale Price Maintenance as an example in order to apply certain criteria, but also drawing on psychological aspects of writing that are absolutely vital in its success or failure.

What is ‘Good Legal Writing’ and Why Does it Matter?

Law schools face increasing pressure to improve instruction in practice-oriented skills. One of the most important of these skills is legal writing. The existing literature on legal writing contains various rules and suggestions as to how legal writers can improve their writing skills. Yet it lacks an adequate theoretical account of the fundamental nature of good legal writing. As a result, legal writers are left without a conceptual framework to ground the individual rules and suggestions. This article attempts to fill the theoretical void in the literature by offering a systematic analysis of what it is for a legal document to be well-written. It starts by examining a foundational conceptual issue, which is what legal writers mean when they say that a legal document is well-written. It argues that legal readers judge a document to be well-written if the writing helps them make the decisions they need to make in the course of their professional duties. The article then provides an analysis of the fundamental qualities that enable legal writing to do this, concluding that there are three such qualities: clarity, conciseness, and the ability to appropriately engage the reader. The article explains why each of these qualities is essential to good legal writing, and it examines the tools good writers use to make their writing clear, concise, and engaging. Lastly, the article examines what it is that distinguishes the very best writing in the field, arguing that great legal writing is not just writing that is especially clear, concise, and engaging, but is instead writing characterized by a separate quality, elegance, that is aesthetic in nature. The article then goes on to explore what it is that makes such writing elegant, and whether it is desirable for legal writers to strive for elegance in their own writing. The article concludes by briefly considering the pedagogical implications of the analysis discussed in the previous sections.

A Proposal to the ABA: One Required Legal Writing Course for All Six Semesters of Law School

Experiential learning is not the answer to the problems facing legal education. Simulations, externships, and clinics are vital aspects of a real-world legal education, but they cannot alone produce competent graduates. The better approach is to create a required, six-semester experiential legal writing curriculum where students draft and re-draft the most common litigation documents and engage in simulations, including client interviews, mediation, depositions, settlement negotiations, and oral arguments in the order that they would in actual practice. In so doing, law schools can provide the time and context within which students can truly learn to think like lawyers, do what lawyers do, and exercise real-world judgment. Simply put, merging experiential learning into the legal writing curriculum is the path to producing competent graduates and a legal education that maintains relevance in a changing world. In this article, we set forth a proposal to the American Bar Association advocating for a three-year experiential legal writing curriculum that requires students to take one legal writing course during each semester of law school and directs law schools to devote between eight and fifteen credits to experiential legal writing instruction. We also include a comprehensive, six-semester curriculum that incorporates doctrinal, skills, and clinical courses. The Clinical Legal Association recently lobbied the ABA for a mandatory fifteen-credit experiential learning requirement. The ABA approved only six. It is time for the Legal Writing Institute to make its own proposal and to give law students the education that members of the bench and bar demand.

No Shoehorn Required: How a Required, Three-Year, Persuasion-Based Legal Writing Program Easily Fits within the Broader Law School Curriculum

In prior articles, we advocated for a required fifteen-credit, three-year, persuasion-based, linear legal writing curriculum. Our model begins with persuasive advocacy from the first day of law school, and takes a sequential approach that mirrors the practice of law — from the initial client meeting to the appellate brief. It includes a separate track for those interested in transactional work, incorporates alternative dispute resolution and settlement simulations, and involves students in researching and drafting amicus briefs before federal appellate courts. Students are also offered several electives each semester to complement their required course load, and receive intense training in narrative storytelling, re-writing, and editing. In this article, we incorporate our proposal into the broader curricular context, and argue for more separation, not more integration, among the analytical, practical, and experiential pillars of legal education. All three are indispensable — and independent — pillars of real-world legal education: (1) the analytical focuses on critical thinking; (2) legal writing combines — and refines — thinking through practical skills training; and (3) experiential learning involves students in the practice of law. To help law students master all three, the curriculum should be designed in a largely sequential (although sometimes concurrent) order, to embrace, not blur, their substantive differences, and to approach inter-foundational collaboration with caution. Broadly speaking, analytical training should dominate the first year in legal writing, but should include an experiential component. The second year should combine analytical and practical skills training, and the third year should focus extensively on clinical work. Of course, a linear approach is not necessarily the best or most effective way to incorporate more writing classes into the curriculum. But three years of required legal writing, however structured, will likely benefit law students and the legal profession. As a recent article in the Wall Street Journal reported, college graduates “lack writing skills,” in part because “schools are not placing sufficient emphasis on writing and grammar.” Coupled with the substantial criticism from lawyers and judges about recent graduates’ weak writing skills, this places a high burden on law schools to focus more extensively on writing, composition, and legal drafting. That takes time — certainly more than a year.

A Defense of Legal Writing

t Lawyer, Covington & Burling. A.B. 1970, Harvard University; J.D. 1980, University of California, Berkeley; D.E.A. 1982, University of Paris 2. I would like to thank Klaus Burmeister, Reed Dickerson, Willy Fletcher, Oscar Garibaldi, Tim Hester, William Logan, David Remes, Simon Schneebalg, and Jim Snipes for their perceptive suggestions, not all of which I was wise enough to accept. I would also like to thank Mary Keene for her research assistance. 1 See, e.g., Beardsley, Beware of, Eschew and Avoid Pompous Prolixity and Platitudinous Epistles.!, 16 CAL. ST. B.J. 65 (1941); Beardsley, Wherein and Whereby Beardsley Makes Reply to Challenge, 16 CAL. ST. B.J. 106 (1941); Bowman, Are Lawyers Lousy Writers?, 6 GA. ST. B.J. 285 (1970); Dick, Legal Language, 2 CAN. B.J. 204 (1959); Gerhart, Improving Our Legal Writing: Maxims from the Masters, 40 A.B.A. J. 1057 (1954); Kanter, Effective Legal Writing-Some Thoughts and Reflections on Learning and Teaching, 42 CHI. B. REC. 112 (1960); Kellog, A Plan for Drafting in Plain English, 56 CAL. ST. B.J. 154 (1981); Rossman, The Lawyers' English, 48 A.B.A. J. 50 (1962); see also Lavery, The Language of the Law (pts. 1 & 2), 7 A.B.A. J. 277 (1921), 8 A.B.A. J. 269 (1922); O'Hayre, A Look at Gobbledygook, 8 L. OFF. ECON. & MGMT. 97 (1967); Writing It Right: A Symposium, 15 PRAC. LAW. 33 (1969). 2 See, e.g., R. FLESCH, How TO WRITE PLAIN ENGLISH (1979); R. GOLDFARB & J. RAYMOND, CLEAR UNDERSTANDINGS: A GUIDE TO LEGAL WRITING at x-xi

Engaging First-Year Law Students Through Pro Bono Collaborations in Legal Writing

This article recommends developing assignments for first-year legal writing courses through collaborations with legal services organizations. The article stems from and describes such ongoing projects at Seattle University School of Law, where several hundred first-year law students have worked on such projects so far. We have partnered with lawyers at organizations like the National Employment Law Project, the ACLU of Washington, and Northwest Justice Project, to come up with live issues that they would like to have researched, and they received the best student work product from each class. The partner organizations have used the students’ work in several ways, including bringing successful impact litigation, preparing amicus briefs, and lobbying for legislative changes. These projects have increased our students’ understanding of the importance of legal research and writing, have motivated our students to improve their work product, and have helped the students gain a different perspective than they often see within the first-year curriculum. The article contextualizes these projects within the traditional legal writing curriculum and the Carnegie Report’s recommendations that law schools join lawyering professionalism and legal analysis from the beginning of law school. The article also draws on research into student engagement, including the Law School Survey of Student Engagement. The article discusses the literature regarding somewhat similar collaboration between legal writing and clinical faculty within the law school; these projects are complementary, but they have fewer timing challenges, are less resource-intensive for the law school, and they provide an opportunity to connect the law school with lawyers from community partner organizations. Finally, the article offers some concrete practical solutions to potential challenges in implementing these projects, including making sure that core legal writing objectives are met through the projects and how to teach the projects effectively to first-year students.

Legal Writing -- What's Next? Real-World, Persuasion Pedagogy from Day One -- It's Not What You Offer; It's What You Require -- (Part II in a Three-Part Series)

Part I of this three-part series set forth a blueprint for change. In this essay, we get more specific and propose a three-year legal writing curriculum that is designed to mirror the actual practice of law, from start to finish, and provide alternative paths for students who prefer to focus on transactional drafting or alternative dispute resolution. In so doing, we include: (1) required courses for each of the six semesters of law school; (2) a discussion of the practical skills that students will acquire in each course; (3) electives that students may take to complement their required courses; and (4) suggestions for textbooks and other materials. In our view, law students should not just learn to "think like lawyers," but also to "do what lawyers do." They should graduate with knowledge of how law is practiced, and not merely how it is acquired. This essay continues that quest.

The Future of Legal Writing: Online and Short Form

In this paper, I will attempt to present a set of solutions to the issues related to the poor quality of legal writing. They will be focused around the benefits of online legal short form. In the first part, I will discuss the challenges posed by the information overload that we experience. I will also address the ongoing criticisms of law reviews and legalese. In the second part, I will evaluate the usefulness of abstracts and summaries. Finally, in the third part I will propose solutions, which on the immediate level will deal with legal writing itself, but also will have broader positive implications to the bar and other consumers of legal information.