The Emergence of Legal Composition as a Field of Inquiry: Evaluating the Prospects

Abstract

This article addresses three rationales frequently offered as a basis for denying disciplinary status to the field of legal writing: (a) Legal thinking and writing processes are no different from ordinary critical thinking and writing processes; (b) legal thinking and writing processes are uniquely different from ordinary thinking and writing processes yet because legal thinking processes are so intuitive and vary so greatly from one lawyer to another they cannot be described meaningfully or reduced to teachable procedures and therefore must be learned largely by doing; (c) there is no research evidence to indicate that law school courses in legal writing and analysis improve legal students’ thinking, reasoning, and arguing skills better than traditional substantive recitation courses do. I argue that these rationales are misconceived and reflect an underlying lack of diversity in the research methodologies so far applied to the study of legal writing skill: (a) Recent exploratory process studies of legal argument reading and writing tasks suggest that, in addition to substantive knowledge of law, legal thinking may involve unique social and rhetorical problem-solving skills not required for skill in ordinary argument, (b) The same process studies suggest that lawyers’ thinking and writing processes are as inherently amenable to observation as those of other professional analysts and writers, and that many of the cognitive skills legal writers need are described usefully in terms of the cognitive skills that other writers need, (c) Although no research directly compares the impact of legal writing and analysis courses with the impact of other traditional law courses on students’ legal thinking skills, recent experimental study of the impact of self-controlled reading instruction on first-year law students suggests similar specialized courses in writing could be very beneficial.