Philosophy v. Rhetoric in Legal Education:
Understanding the Schism Between Doctrinal and Legal Writing Faculty
Kristen Konrad Robbins*
If we legal writing faculty1 know one thing for sure, it is that what we teach is absolutely essential to our students' success, yet it continues to be grossly, even embarrassingly, undervalued in legal education. To the practicing bar, those attorneys educated by but now outside the academy, its inferior status often comes as a surprise. For the few who leave practice and return to law school to teach, surprise turns to outrage when they learn that legal research and writing is the stepchild of the law school curriculum. Judges and lawyers consider it the "single most important course in law school,"2 and students immediately recognize its importance to their careers. Nevertheless, roughly thirty years after their inception, legal research and writing courses continue to be under-credited and under-staffed. The average number of credits per semester for a first-year legal research and writing course is two,3 as compared to three or four credits for a doctrinal course like torts or contracts. The number of students per legal writing class can range anywhere from thirteen to 120, with legal writing faculty reading up to 7,600 pages of student writing in one semester.4
Even more outrageous is the fact that legal writing faculty are eligible for tenure at only a handful of schools, and their salaries remain strikingly lower than those of their colleagues who teach doctrinal courses. Of the 178 reported law schools in a 2005 survey of legal writing programs conducted by the Legal Writing Institute (LWI) and the Association of Legal Writing Directors (ALWD), only thirteen percent have tenured or tenure-track teachers hired specifically to teach legal writing.5 Although women comprise just twenty-six percent of tenured or tenure-track positions in law school faculties generally, they comprise roughly seventy-three percent of legal writing faculty.6 One of law schools' "dirty little secrets" is that female faculty earn less than male faculty,7 but women who teach legal writing earn even less than women teaching doctrinal courses. How much less is difficult to determine because salaries for male and female doctrinal faculty are also well-kept secrets. Of the 190 law schools surveyed by the Society of American Law Teachers for the 2004-05 academic year, ninety-six schools—fifty-one percent—refused to provide salary information, and thirty-nine of those schools are in the top fifty, according to U.S. News and World Report ratings.9
What we do know is that median salaries for full professors in the United States ranged from roughly $78,000 (Inter-American University of Puerto Rico School of Law) to $183,000 (University of Michigan) and perhaps higher. The median salary for legal writing faculty as of 2005 was somewhere between $50,000 and $59,999; the average was roughly $57,000.10 Only two percent of the schools in the 2005 LWI/ALWD Survey pay their legal writing faculty more than $100,000.11 Stanchi and Levine estimate that in 1998, legal writing faculty earned "57% of the median salaries of assistant, tenure-track professors of doctrinal subjects, 51% of the median salaries of associate professors, and 40% of the median salaries of full professors."12 In 1998, the salary difference between legal writing faculty and full professors in real dollars was roughly $56,000.13 That difference is likely to be even greater today.
II. The Dual Bias Against Legal Writing: Discrimination on the Basis of Gender and Intellect
Given the increasing importance of legal research and writing to law students,14 how do we explain this ongoing disparity? At a minimum, the disparity reflects gender discrimination, pure and simple. As Stanchi and Levine state:
[L]aw schools have treated the teaching of legal writing as "women's work." While the high percentage of women found teaching legal writing may not always be the result of conscious discrimination, the gender disparity certainly reflects an institutional willingness to take advantage of the position of women lawyers.15
Stanchi and Levine explain that in the 1970s and 1980s, law schools were expanding, and there was public pressure to provide law students with more practical instruction. This need was met by the influx of highly skilled women in the legal profession, who were willing to take low-paying, low-status jobs for family reasons.16 As long as the women hired to teach legal writing were "not really faculty,"17 they posed no threat to the established order. More than twenty years later, the question is what enables this blatant discrimination to continue? How, in good conscience, can law schools—"the bastion[s] of liberalism"18—shortchange students and treat their legal writing faculty like second-class citizens?
There is a concomitant and even more insidious form of discrimination at work here for which there is no obvious suspect class. It is discrimination on the basis of perceived intellect. It's not just that most of us are women; it's that we are women who aren't that smart teaching a course that's not that hard. Although the majority of doctrinal, primarily male, law professors would agree that legal writing is a valuable skill, it is only a skill; and frankly, it is too much work to teach it. Legal education is about more intellectual pursuits, their pursuits. If we were as smart as they, we would still be practicing law, teaching doctrinal courses, or writing books. This powerful assumption helps explain why female deans and female faculty with tenure can look the other way19 or discourage legal writing faculty from pushing for tenure because it is "too soon." Even the American Bar Association, which continues to mandate more and more professional skills education in accredited law schools, has refused to require that law schools afford legal writing faculty job security reasonably similar to tenure.21
III. Tracing the Roots of Intellectual Discrimination to Philosophy's Victory over Rhetoric as the Sole Path to Truth and Knowledge
The prevailing view among law school administrators and doctrinal legal faculty is that although teaching writing may be time-consuming, it is not really that hard. Legal writing teaches a process, not a substantive area of law. The belief that writing is simply a vehicle for ideas acquired outside of the writing process is so entrenched that it is difficult to challenge the assumptions behind it.22 Indeed, it is thousands of years old and rooted in the power struggle between philosophy and rhetoric that began in ancient Greece. As early as the fifth century, B.C., the Sophists, who were courtroom advocates as well as teachers of rhetoric, had already damaged rhetoric's reputation.23 Some of the Sophists were known for trying spurious lawsuits, and thus, "sophistry" soon became associated with clever but false argument.24
Plato, one of the earliest philosophers whose written work survives, was a contemporary of the Sophists. Plato lived a contemplative life, devoted to discovering universal truths and rejecting falsity. As far as Plato was concerned, rhetoric was manipulative and could not lead to truth.25 Only dialectic, a reasoned exchange of ideas between two scholars, could elicit truth, an absolute truth that existed outside of man. Political and legal rhetoric were merely speechmaking, designed to persuade the audience about a particular point of view. Since rhetoric served only to persuade, it could be neither true nor false; at best, it was opinion.26 Plato especially despised politicians, who curried favor by appealing to base pleasures, and lawyers, who argued false points of view that could result in juries acquitting guilty men.27 Thus did Plato articulate a prejudice against rhetoric and legal argument that survives today in the legal academy in the form of discrimination against legal writing and its faculty.
Most damaging to rhetoric as a discipline, however, was Plato's view that it lacked intellectual substance. In Gorgias, one of Plato's famous dialogues, Socrates challenges Gorgias, a Sophist, to articulate the subject matter of rhetoric.28 Socrates states that all art forms (what today we call sciences), such as medicine, arithmetic, and astronomy, exercise their influence through persuasive speech, and therefore, to say that rhetoric is about persuasion is to say it has no subject matter of its own.29 Gorgias replies that rhetoric is the art of persuasion in courts of law and other assemblies.30 Socrates declares that rhetoric is not an art form at all; it is merely the imitation of one because rhetoric has no subject matter of its own and deals only with what is "likely" to be true. Socrates concludes this part of the dialogue by stating that rhetoric is the counterpart to cookery, the false art of medicine. Just as cookery appeals to the base pleasures of the body, rhetoric appeals to the base pleasures of the soul. In Socrates' view, rhetoric confuses the soul, making it difficult to distinguish that which is true and just from that which is false and unjust.31
Aristotle was Plato's best student, but he could not have disagreed more with Plato about the value of rhetoric as an independent art form. At the age of seventeen, Aristotle moved to Athens to study at Plato's Academy, where he remained for twenty years. Unlike Plato, Aristotle was interested in reality as man perceived it as much as he was in absolute truth. In fact, he devoted his career to systematic observation and classification of all aspects of life. He wrote on a myriad of topics, including logic, rhetoric, philosophy, history, politics, ethics, astronomy, physics, and psychology.32 His most famous works include The Organon (a collection of treatises on logic)33 and Rhetoric;34 and together, they embody Aristotle's views on the subject and practice of rhetoric. Aristotle defined rhetoric as "the faculty of discovering in the particular case what are the available means of persuasion."35 According to Aristotle, a rhetorician attempts to persuade by appeals to logic (i.e., reason) as well as to emotion and the speaker's character.36 He criticized the Sophists for relying too heavily on emotional appeals and stressed appeals to logic.37 Unlike Plato, Aristotle thought rhetoric served justice because the consideration of opposing viewpoints could lead to truth in the courtroom.38 Echoing Socrates in Plato's Gorgias, Aristotle described rhetoric as the counterpart to dialectic—Plato's philosophical exchange of ideas leading to truth.
Doctrinal legal faculty are like Plato: they take a philosophical, truth-seeking approach to the study of law. Although they do teach law students, many prefer writing to teaching and harbor a certain disdain for the practice of law.40 These educators believe that "coming to a comprehensive understanding of the law is best accomplished through logic," not experience.41 This identification with Plato is evidenced by their use of the combative teaching method Plato learned from Socrates. The typical law professor engages in a conversation with a student that challenges the student to articulate her position and then defend it against attack. Often the goal is to discover some sort of perceived truth about the rule of law or the policies that drove a particular court's decision. Little or no attempt is made to relate these truths to their application in practice. The only chance students get to apply their knowledge is on an exam at the end of the semester.
In contrast, legal writing faculty are more like Aristotle: we take a practical approach to the study of law, and we recognize that truth can differ based on the circumstances (i.e., a given memo or brief problem). Typically, we love to teach, and our goal is to expose students to the tools of persuasion: identification with the client's purpose, thorough research, articulate analysis, and effective speaking and writing. We are less concerned about the "correctness" of an argument than its effectiveness. Students have a tough time making the transition from the "right and wrong" of doctrinal courses (as in the professor is right and the student is wrong) to the "works and does not work" of legal writing. Convinced that there must be an ideal answer to their hypothetical client's question, students often think we are hiding it from them. Although we too expect our students to defend their positions against attack, we rarely take a position on the "best" argument. In teaching our students to become self-evaluators and self-editors of their writing, we teach them to judge for themselves what is right or best. Like Aristotle, we adhere to the view that the value of rhetoric lies in its ability to lead to truth, but we do not presume to teach what "truth" is in a given context.
The intellectual struggle between philosophy and rhetoric that began with Plato has continued throughout all of recorded history in a variety of disciplines. By and large, philosophy has triumphed over rhetoric, and to the victor belong the spoils. In the field of legal education, philosophy and its quest for truth (i.e., doctrinal courses) are valued above rhetoric and a lawyer's facility with language (i.e., clinical and legal writing courses). The reason for philosophy's ascendancy has been its claim to logic and reason. Although Aristotle thought that the invention of reason-based arguments fell within the province of rhetoric, philosophy claimed logic as its own. This left rhetoric with the study of expression and style, which is today perceived to be the domain of legal writing. The effect has been to gut rhetoric's intellectual heft. Consequently, we legal writing faculty are perceived to teach students the process of expressing the knowledge they get from doctrinal faculty. In plain terms, doctrinal faculty teach "the law," and we teach grammar, punctuation, and citation format. Legal writing is thus considered an intellectually inferior pursuit, and we who teach it acquire that inferiority by association.
In ancient Greece, where social interaction revolved around the spoken word, rhetoric was a respectable art form in spite of Plato. Greek politicians made public appeals through speechmaking, and citizens represented themselves in court. The Romans embraced and improved upon rhetoric, particularly legal argument. However, its primacy was short-lived; its status as a separate and substantive discipline was in serious jeopardy before the Empire began to fall in 410 A.D. As free speech became less available to Roman citizens and professional orators were hired for courtroom use, the need to train citizens in rhetorical skills declined rapidly.42 By the first century, A.D., the art of rhetoric was confined almost exclusively to the classroom, and its focus shifted from the substance of argument to how argument should be delivered.43 Professional Roman orators, the "second sophists," began to deliver speeches designed to entertain and amaze audiences rather than to persuade them, and their style was deliberately ornate and excessive.44 As is true today, not only was rhetoric considered insincere and manipulative, it became associated with exaggerated and flowery language.
The birth of Christianity contributed even more to rhetoric's fall from grace. Although Christians believed they had been called to proclaim the news of Christ, they rejected much of Roman culture, including the art of rhetoric.45 The early leaders of the Latin Church had been trained in classical rhetoric, but they refused to adopt a form of preaching that had its roots in paganism. As a result, they adopted a plain teaching style that contained none of the rhetorical devices with which they were familiar.46 In the fifth century, A.D., however, Augustine of Hippo attempted to revive the art of classical rhetoric by advocating an elegant preaching style grounded in the teachings of the great Roman orator, Cicero.47 Augustine was concerned with truth, but not Plato's form of truth. Augustine believed that the only truth was the word of God. Undaunted by the fact that rhetoric encouraged opposing points of view, Augustine believed God's word needed the power of rhetoric behind it to compete fairly with false prophets.48 Although he was instrumental in reviving interest in classical rhetoric, Augustine did nothing to reunite logic and rhetoric. Because truth was the unassailable word of God, Augustine saw no need for logic to evince truth and develop supporting arguments.49 All Augustine needed was a vehicle for the expression of God's truth.
* ©Kristen Konrad Robbins 2006. Professor of Legal Research and Writing, Georgetown University Law Center. B.A., Wellesley College; J.D., Georgetown University Law Center. Special thanks to Linda Berger for suggesting that I contribute to this issue and to my husband for his encouragement and help with this article.
1 This shorthand phrase includes legal writing faculty who teach research and legal writing faculty who coordinate the teaching of research with other faculty or law school librarians.
2 Kathryn M. Stanchi & Jan M. Levine, Gender and Legal Writing: Law Schools' Dirty Little Secrets, 16 Berkeley Women's L.J. 1, 5 (2001).
3 See Assn. Leg. Writing Directors & Leg. Writing Inst., 2005 Survey Results 7, http://www.alwd.org (accessed Apr. 9, 2006) [hereinafter 2005 Survey Results].
4 Id. at 59.
5 See id. at 47.
6 Stanchi & Levine, supra n. 2, at 4 n. 3.
7 Id. at 4.
8 See Society of American Law Teachers, SALT Equalizer, http://www.saltlaw.org/EQ-Feb2005.pdf (accessed Feb. 12, 2006).
9 See U.S. News and World Report, America's Best Graduate Schools 2006: Top 100 Law Schools, http://www.usnews.com (accessed Feb. 12, 2006).
10 See 2005 Survey Results, supra n. 3, at 54. This is true without regard to the number of years the legal writing professor has been teaching. See Stanchi & Levine, supra n. 2, at 11.
11 2005 Survey Results, supra n. 3, at 54.
12 Ann C. McGinley, Discrimination in Our Midst: Law Schools' Potential Liability for Employment Practices, 14 UCLA Women's L.J. 1, 8 (2005) (citing Stanchi & Levine's survey and raising serious questions about these practices violating Title VII). As Professors Stanchi and Levine point out, a legal writing professor, receiving five percent annual increases would have to work eighteen years to earn the median salary of a full professor colleague. During that time of course, the full professor's salary would continue to increase, and the legal writing professor would be in the situation of "getting ever closer to her goal, but never reaching it." Stanchi & Levine, supra n. 2, at 11-12.
13 Stanchi & Levine, supra n. 2, at 11.
14 Recent studies indicate that the research and writing preparedness of matriculating law students is on the decline. As a 2003 Report of The National Commission on Writing in America's Schools and Colleges demonstrates, students are coming to law school with increasingly deficient writing skills. For example, the traditional senior research paper "is rapidly being abandoned" in American high schools, and "more than 50 percent of first-year college students are unable to produce papers relatively free of language errors." The Natl. Commn. on Writing in America's Schools and Colleges, The Neglected "R": The Need for a Writing Revolution 14, http://www.writingcommission.org/prod_downloads/writingcom/
neglectedr.pdf (Apr. 2003) (accessed May 30, 2006).
A recent survey of law students at three high-ranking law schools indicates that incoming law students have deficient research skills. According to the survey, "students begin law school without basic research skills." Kathryn Hensiak et al., Assessing Information Literacy among First Year Law Students: A Survey to Measure Research Experiences and Perceptions, 96 L. Lib. J. 867, 868 (2004). Almost half of the 330 respondents were "unfamiliar with the library catalog," and many did not know that "everything is not online." Id. at 867-68.
For a recent report on the concurrent rate of decline in reading among American students, see The National Endowment for the Arts, Reading at Risk: A Survey of Literary Reading in America, http://www.nea.gov/pub/ReadingAtRisk.pdf (June 2004) (accessed May 30, 2006).
15 Stanchi & Levine, supra n. 2, at 23. See also Richard H. Chused, The HYPERLINK "http://web2.westlaw.com/find/default.wl?DB=1268&SerialNum=0102729911&FindType=
_top&sv=Split&vr=2.0&rs=WLW6.04" \t "_top" Hiring and Retention of Minorities and Women on American Law School Faculties, 137 U. Pa. L. Rev. 537 (1988); Pamela Edwards, Teaching Legal Writing as Women's Work: Life on the Fringes of the Academy, 4 Cardozo Women's L.J. 75 (1997); Mary Ellen Gale, Legal Writing: The Impossible Takes a Little Longer, 44 Alb. L. Rev. 298 (1980); McGinley, supra n. 12, at 3-4.
16 Stanchi & Levine, supra n. 2, at 6-9.
17 Id. at 7.
18 McGinley, supra n. 12, at 3.
19 See Stanchi & Levine, supra n. 2, at 5.
20 The ABA Standards require that accredited law schools provide substantial instruction in "professional skills generally regarded as necessary for effective and responsible participation in the legal profession" as well as substantial instruction in legal analysis and reasoning, legal research, problem solving, oral communication, and writing in a legal context, including at least one rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year. See ABA, 2005–2006 ABA Standards for Approval of Law Schools, Standard 302: Curriculum, 26-27, http://www.abanet.org/legaled/standards
/2005-2006standards book.pdf (accessed May 15, 2006).
21 In 2003 and 2004, the Legal Writing Institute and the Association of Legal Writing Directors urged the ABA (1) to eliminate Standard 405(d), which permits schools to use short term contracts to attract and retain legal writing faculty, and (2) to include full-time legal writing faculty within Standard 405(c), giving legal writing faculty the same level of job security that clinical faculty enjoy. The ABA rejected that proposal both times.
The ABA now requires that clinical faculty have job security reasonably similar to tenure but not because it was convinced of clinicians' academic worthiness. Clinical programs were formed in the late 1960s in response to unrelenting pressure from students and the practicing bar. See Richard A Boswell, Keeping the Practice in Clinical Education and Scholarship, 43 Hastings L.J. 1187, 1187-88 (1992). Clinical faculty were not included in Standard 405(c) until 1996, some thirty years later.
In March 2006, the American Law Deans Association (ALDA) filed a public comment in response to the ABA's application for reaffirmation as a law school accrediting agency. In its comment, ALDA objected to the ABA's efforts to require tenure or tenure-like status for deans (how politically correct) and clinical faculty. As for legal writing faculty, ALDA stated it does "not believe that ABA should require any specific terms and conditions of employment." American Law Deans Association, Public Comment On The Application Of The American Bar Association ("ABA") For Reaffirmation Of Recognition By The Secretary Of Education ("Secretary") As A Nationally Recognized Accrediting Agency In The Field Of Legal Education (available at http://www.nyu.edu/classes/siva/archives/alda.doc (accessed May 15, 2006)). At this writing, a public hearing on the ABA's application is scheduled for June 2006.
22 See e.g. Lisa Eichhorn, Writing in the Legal Academy: A Dangerous Supplement?, 40 Ariz. L. Rev. 105 (1998) (explaining the perceived difference between legal writing and doctrinal courses as a "skills/substance dichotomy").
23 James L. Golden et al., The Rhetoric of Western Thought 7 (6th ed., Kendall/Hunt Publg. Co. 1997).
24 See e.g. The Oxford Compact English Dictionary 1098 (Catherine Sloanes ed., 2d ed.,Oxford U. Press 2003).
25 See e.g. Golden, supra n. 23, at 16.
26 See e.g. Plato, Phaedrus in Complete Works 539, § 262c (John M. Cooper ed., Hackett Publg. Co. 1997).
27 See id. at 536-38, §§ 259e-261d.
28 See Plato, Gorgias, in Complete Works, supra n. 26, at 795, §§ 449d-e.
29 See id. at 796-97, §§ 450d-451d.
30 See id. at 798, § 452e.
31 See id. at 806-09, §§ 462a-465e.
32 See e.g. Aristotle's Physics (Hippocrates G. Apostle ed. & trans., Peripatetic Press 1980); Aristotle, The Nicomachean Ethics (Hugh Tredennick ed., J.A.K. Thomson trans., Penguin Books 2004); Aristotle, Politics (C.D.C. Reeve trans., Hackett Publg. Co. 1998).
33 See e.g. Aristotle, The Organon (Harold P. Cooke & Hugh Tredennick eds., Harv. U. Press 1960). The Organon includes Categories, On Interpretation, Prior Analytics, Posterior Analytics, Topics, and On Sophistical Refutations.
34 See e.g. Aristotle, The Rhetoric of Aristotle (Lane Cooper trans., D. Appleton & Co. 1932).
35 See id. at 7.
36 See id. at 8.
37 See id. at 3.
38 See id. at 5-6.
39 See id. at 1. According to Aristotle, neither dialectic nor rhetoric was a science with its own subject matter; both were "faculties for providing arguments." Id. at 9-10.
40 See Stanchi & Levine, supra n. 2, at 21 n. 94.
41 Boswell, supra n. 21, at 1187.
42 See George A. Kennedy, Classical Rhetoric & Its Christian & Secular Tradition from Ancient to Modern Times 49 (2d ed., U.N.C. Press 1999); James J. Murphy, Rhetoric in the Middle Ages: A History of Rhetorical Theory from Saint Augustine to the Renaissance 35-36 (U. Cal. Press 1974).
43 See Murphy, supra n. 42, at 35-37; James J. Murphy & Richard A. Katula, A Synoptic History of Classical Rhetoric 230-33 (3d ed., Lawrence Erlbaum Assoc. 2003).
44 See Murphy, supra n. 42, at 35-37; Murphy & Katula, supra n. 43, at 230-33; Golden, supra n. 23, at 56-57.
45 See e.g. Golden, supra n. 23, at 58-60; Kennedy, supra n. 42, at 168; Murphy, supra n. 42, at 48-50.
46 Murphy, supra n. 42, at 51.
47 Saint Augustine, De Doctrina Christiana 118, §§ 4.2.3-4.3.4. (D.W. Robertson, Jr., trans., Liberal Arts Press 1958).
48 Id. at 118-19.