My writing instructors in law school parroted a line that I considered both annoying and at times wrong: “This is bad writing.” The criteria for what constituted bad (as opposed to good) writing had to do, invariably, with rigid rules of grammar and syntax. A sentence was “bad,” for example, if it failed to have a comma following an introductory prepositional phrase; or a sentence was good, even if it sounded awkward, so long as it did not violate any rule of basic grammar. Such over-commitment to formalism quashed any sense of experimentation or creativity that the students might have had. Rather than trying out new styles and syntaxes, students confined their writing to short, plain statements of fact and conclusion. Their papers read like boring how-to manuals: monotone and tedious, never lively and engaging. The problem, as I see it, is that legal writing instructors have little awareness of audience. They simply have no notion of what Stanley Fish calls “interpretive communities” and so have no notion of genre (categories of discourse) or performative text (text that mimics or signals certain categories of discourse). Legal writing instructors locate students within a field of discourse akin to technical writing, but they never explain to students why technical writing is appropriate or even desirable in a legal context. Instead, they inform students that anything that is not technical writing is bad, and they do so without realizing that different communities may have different expectations or prefer different techniques and vocabularies. Legal writing instructors never explain that certain modes of writing can be good in other contexts but instead treat all writing as belonging to one classificatory scheme. They force writing into one of two categories—good or bad—without regard to the quality of writing as contextualized in other communities. Such habits simply will not do.
Legal writing instructors would benefit from reading David Bartholomae’s “Inventing the University.” Bartholomae highlights the performative nature of writing: when students “invent the university” (623), they learn to speak the language of academics (624) by assembling and mimicking that language (624). Put simply, students appropriate or at least imitate the discourse of their professors. Students seem aware that their professors write and communicate within a certain discursive framework, and despite their lack of understanding of that framework, these students seek to employ “commonplaces” (626) of their professors’ communities. Students learn by process to convey meaning through codes of language.
Legal writing instructors will have difficulty defining commonplaces of the legal community because legal jargon has become, for political reasons, stigmatized in the academy yet embraced in legal practice. The “plain English” movement pushed by legal writing instructors has sought to eliminate all trace of pomp or pedigree by decrying, among other things, Latin idioms, lawyerisms (“wherefore,” “hitherto,” “aforementioned,” “hereinafter,” “insofar,” etc.), buzzwords (“actionable,” “cause of action,” “en banc,” “estoppel,” “cy pres,” etc.), advanced vocabulary or diction, and compound sentences. Notwithstanding the underlying merits of this movement, one consequence of the movement has been a disruption and a subversion of traditional modes of speaking and understanding legal concepts. How is a law student to describe the doctrine of res ipsa loquitur without reference to the Latin term of art that has signified the doctrine for generations? Must law students simply invent a new English word that represents this settled principle?
A glaring disjuncture between what students learn to do in their core law school classrooms and what students learn not to do in their legal writing classrooms gives rise to schizophrenic education. For in their core classes, students must rely on a long line of educational precedent dating back to pre-America. They must be familiar with so-called “old” terms and concepts because very often those terms and concepts still persist in some form or residue. As legal writing instructors insist on a reinventing of legal language to conform to the understanding of “laypeople,” they also deprive their students of the requisite knowledge to interpret case law or statutory regulations. In their core classes, students must, to borrow Bartholomae’s words, “assume privilege without having any” (632), but students also lose the opportunity to adopt or adapt that privilege in their legal writing classes where all “privilege” is dismissed out of hand. Legal writing instructors want to wipe away “field-specific” or “domain-specific” interpretive-strategies (632) so that legal language becomes accessible to more and more people. Their commitment to a lofty ideal, however, situates students outside the official discourse of everyday legal practice—i.e., legal writing instructors fail to prepare students to negotiate networks of discourse through which practicing lawyers communicate.
Bartholomae does not expect his students to be literary critics, but he expects them to invent themselves as literary critics “by approximating the language of a literary critic” (633-34). Legal writing instructors expect their students to be lawyers and yet to disregard or resist the discursive practices of lawyers. Is this not an instance of having your cake and eating it too? Bartholomae’s argument, if applied to legal writing, would seem to suggest that students should multiply their communicative possibilities by enlarging their discourse community and by attaining fluency in other discourse communities. To become literate, as it were, in legal jargon and legal discourse would require enlarging and multiplying—not limiting—students’ taxonomies and vocabularies. As Bartholomae submits, “What our beginning students need to learn is to extend themselves, by successive approximations, into the commonplaces, set phrases, rituals and gestures, habits of mind, tricks of persuasion, obligatory conclusions and necessary connections that determine the ‘what might be said’ and constitute knowledge within the various branches of our academic community” (634). If Bartholomae is right about students of literature, could he also be right about students of law? If yes, then why do legal writing instructors insist on training students to resist the skills and codes necessary to practice law? The only answer I can supply is that legal writing instructors re-imagine their students’ audience or interpretive community as the “layperson” and not as the legal community. This egalitarian tendency might seem good, but would we require literary theorists to abandon all references to “signifiers,” “signified,” “cultural currency,” “hermeneutic,” and the like, simply because the “layperson” (or anyone without a graduate degree in English) could not understand the meaning and import of these references? Probably not.
Legal writing instructors should “demystify” (635) legal rhetoric by providing students access to the discursive community of lawyers. There’s law, and there’s a coded way of talking about law. A writer who understands the code has access not only to law but also to the community that shapes and enforces law. All discursive communities use certain lexica and conventions, and a writer who wishes to negotiate or navigate through any given discursive community must learn that community’s lexica and conventions. Bartholomae’s article is all about how writers (students) come to academic writing unequipped with the discursive facility necessary to communicate with a privileged audience (the academics themselves, the teachers). Part of the point of teaching is to familiarize students with the discourse of the academic community. Legal writing instructors could learn much from this thesis. The point of legal writing is not just to communicate with the public at large—although this is a valid and important aspect of legal writing—but also to communicate with those inside the interpretive community of law. If legal writing instructors are concerned about shifting the legal discourse altogether, then they should find other ways of undermining legal communication that do not impair or disable students who have yet to understand legal discourse—who have yet to become lawyers.
David Bartholomae’s “Inventing the University,” in Victor Villaneuva, ed., Cross-Talk in Comp Theory: A Reader. 2nd ed. Urbana, IL: NCTE, 2003.