Would legal education be improved by integrating the first-year legal writing course with an upper-level clinical course? That was the core question posed to a diverse panel at the 2007 Annual Section Program on Legal Writing, Reasoning and Research. The basic idea is deceptively simple and attractive: first-year students would develop their analytic, research, and writing skills by working on live issues from real cases in a law school clinic. First-year students would benefit from seeing legal issues in full context, interacting with more advanced students and clinical faculty, and knowing that their law school colleagues and the clients were relying on them for timely, sound advice. The clinic’s work could be advanced by having more research help, and upper-level students could improve their own planning and communication skills in the process of "supervising" the first-year students.
Despite these apparent virtues, I’m not convinced an integration is a good idea—but it is a very provocative one. If carefully presented, it could provoke a very interesting conversation about the rest of the first-year curriculum at many schools. On the other hand, I think it naïve for legal writing and clinical faculty to attempt an integration that does not first involve serious discussions with and some commitments from the faculty who teach doctrinal courses; without such commitments, the integration may not endure beyond the personal commitments of its initial proponents. Nevertheless, I think this is an idea worth pursuing, even though an integration will be hard to implement and even harder to sustain without a substantial change in the first-year doctrinal curriculum at most schools—which I think unlikely. If nothing else, the discussions among legal writing, clinical, and doctrinal faculty that should precede any attempted integration—even if it never happens—could be immensely productive for the curriculum and for collegiality.
In a nutshell, my concern about integration is the effect on students' legal reasoning skills. Any curricular change should be supported by evidence that the change is likely to improve student learning of something students should learn without impairing their learning of something important they learn now. It's pretty clear that some exposure to reality would help most first-year law students learn to integrate doctrine, theory, practice skills, and professional responsibility and to feel better about themselves and their educations. My concern is with the possible decrease in the quality and time devoted to instruction and practice in legal reasoning that might be the unintended consequence of integrating. Unless legal writing courses get some more credit hours, it's not clear that legal writing faculty can incorporate even little bits of clinical reality in most first-year legal writing courses without impairing instruction and learning of reasoning skills.
In this essay I argue that primary responsibility for teaching these skills now rests with first-year legal writing faculty and not with doctrinal faculty, as I think is widely supposed. I also argue that a likely unintended consequence of using clinical cases will be that legal writing faculty will lose both time and sophisticated materials with which to teach these skills—time that is already too short and materials that represent more than 30 years of increasing sophistication about law and learning. On the other hand, an integration could be a good outcome for students, for curricular coherence, and for faculty collegiality, if doctrinal faculty can be persuaded to re-assume primary responsibility for teaching reasoning skills and to integrate into their courses some of what legal writing faculty know and do now.
This essay depends on three related points. I'll begin supporting my thesis by defining which reasoning skills I mean and suggest some historical reasons why instruction in those skills has moved out of the doctrinal curriculum and into the legal writing curriculum. Then I will discuss why it may be difficult for legal writing teachers to use issues from clinic cases to teach those same skills as effectively or as efficiently. I wrap up my argument by describing the evolution in casebooks as a way of documenting my (I suspect controversial) claim that doctrinal courses don't teach much about legal reasoning. Finally, I conclude with a brief plea that whatever faculties decide to do, they commit to assessing the results systematically.
In discussing the kind of thinking that legal writing courses teach a lot and doctrinal courses teach just a little, I am referring to what legal historians might call "neoclassical legal reasoning." In practical terms, I mean the work-a-day techniques of interpretation of and reasoning from positive law that one would expect to observe in a competent intermediate appellate opinion in a case in which there was no significant dispute over which legal authorities were applicable. These techniques involve: close reading of positive law sources, especially statutes and appellate opinions, the ability to extract holdings from an opinion, the ability to infer or "synthesize" common principles from multiple sources of positive law, and the ability to reason deductively from those sources to determine a party's legal obligations in particular factual circumstances.
In my experience, this kind of reasoning is taught systematically in first-year legal writing and not much in other first-year classes. (I have taught legal writing for over two decades and first-year contracts for almost a decade.) As I discuss in more detail below, neoclassical reasoning is on display, if you will, in the casebooks now used in doctrinal courses, but it is not their focus. It would be nigh on impossible to learn to synthesize multiple cases or a statute and cases from the contemporary casebook. In contrast, over the past decades legal writing textbooks have increased explicit instruction in exactly these kinds of skills, and they do so through highly structured, carefully sequenced exercises that require analysis of multiple authorities within a jurisdiction.
Don't mistake me here: I’m not advocating neoclassical reasoning as the sine qua non of lawyering skills, much less as a jurisprudential ideal; in advocating for systematic instruction in neoclassical legal reasoning techniques, I don't mean to minimize other approaches to understanding and practicing law. In fact, I have long felt that the early and relatively exclusive focus on neoclassical reasoning in most first-year legal writing courses is unfortunate,1 but the uneasy cohabitation of academic and professional perspectives in U.S. law schools helps explain why neoclassical reasoning ended up in the writing curriculum. Fervent academic debates about the source, validity, and meaning of legal rules and about the objectivity, consistency, or purpose with which they are or should be applied date at least from the Legal Realists in the early 20th Century and have persisted through the Legal Process movement, the Critical Legal Studies movement, into contemporary debates about economic analysis of law and about the relative merits of textualism, original intent, or instrumentalism in statutory and constitutional interpretation. This intellectual history is beyond the scope of my essay, except to the extent that it helps to explain why explicit instruction in the kind of reasoning that most lawyers and judges persist in using most of the time has shifted to the "skills" portion of the first-year curriculum. There, in legal writing classes, it can be segregated and taught as a necessary but insufficient tool—a means to the end of being employed in practice. This history may also help explain why all law faculty genuinely and correctly believe they teach legal reasoning; it’s just that they may not be teaching the same kinds of legal reasoning.
Even if my evolutionary theory about legal curricula is all wet, I think my point that neoclassical reasoning must be taught is not. Every graduate who hopes to practice law will have to demonstrate competence in both its form and the substance, if only to pass a bar exam. Over the past 50 years or so, explicit instruction in this kind of reasoning has been assigned, or relegated, to legal writing courses. If faculties can ensure that students will still learn to reason credibly in the profession, and they can simultaneously enhance student learning in other respects by integrating clinical and legal writing courses, then they should integrate. That means, as a practical matter, that legal writing courses will either need to get more credit hours or that the doctrinal courses will have to take over some of what legal writing courses teach now.
On a side note, there may still be tough logistical issues in any integration that involve coordinating, sequencing, and timing work to meet both the client’s needs for timely representation and the diverse first- and upper-level students' needs for appropriately sequenced lessons. I do not address those issues here except to comment that clinicians and legal writing faculties are particularly skilled at collaborative problem solving and can surmount the challenges, if anybody can. As an added benefit, perhaps legal writing and clinical faculty could unite at last in this common educational cause, realizing an affinity that many feel but few have realized.
∗ © Kate O'Neill 2007. Director, Basic Legal Skills (1993-2006), and Associate Professor, University of Washington School of Law.
1 See e.g. Kate O’Neill, Formalism and Syllogisms: A Pragmatic Critique of Writing in Law School, 20 Legal Stud. F. 51 (1996).