Post-structuralist theories of textual meaning have been integrated into legal education in various ways, notably through the influence of the Critical Legal Studies movement. Ironically, legal writing courses, the portion of the first-year curriculum ostensibly allotted to techniques of dissecting and manipulating language, have largely ignored the insights of analytical philosophy and literary deconstruction indirectly appropriated in other courses. The standard models remain algorithmic, reinforcing a conservative view of writing as an applied lexigraphic skill, essentially void of the substance taught in nonwriting courses. This conceptual disjunction between writing and thought engenders and feeds the attitude that legal writing courses are ancillary to the rest of the law school curriculum, which teaches students to "think like a lawyer," as opposed to teaching mere techniques of transposing thoughts. Ironically, this attitude severely inhibits the mode of thinking to which it aspires. Only the realization that writing is thought empowers students to dismantle a legal text according to its own internal contradictions, and only prowess in dismantling provides the vision by which lawyers create arguments instead of ape them.
The first part of this Article examines why this stereotypical view of legal writing is perpetuated, identifying the reluctance to change as an instance of broader cultural and psychological prejudices delineated by Jacques Derrida and subsequent deconstructionist critics. Key to these is the notion of presence, which is analyzed in three manifestations, beginning with the most general (an illusion of the self within), proceeding to a more specific literary incarnation (an illusion of the meaning of a text), and ending with an aspect closely associated with legal education (an illusion of the answer behind Socratic questioning). Because the impossibility of a comprehensive account of language precludes any algorithmic formula for ethical decision-making, the IRAC model is undesirable, particularly if steps are not taken to demonstrate to the student that it is a model of conversational rhetoric as opposed to a model of logical calculus. Accordingly, the second part of this Article examines four approaches that aspire to such a demonstration. A third part of the Article briefly addresses the question of political agendas intruding into pedagogy and is essentially an attempt to allay fears that the aforementioned approaches necessarily entail some form of left wing ideology. The Article concludes with a summation and exhortation to a more open view of writing.
Cornwell, Joel R.
"Legal Writing as a Kind of Philosophy,"
Mercer Law Review: Vol. 48
, Article 5.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol48/iss3/5