DEFINING "SCHOLARSHIP": WHY WRITING ABOUT WRITING SHOULD COUNT

Michelle L. Richards[1]

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            In thinking about how to define “scholarship” in the context of legal writing, I admit that I cheated. I turned to the policy under which my scholarship was recently evaluated for tenure at my institution, Detroit Mercy Law, to evaluate whether it contained a good definition. Under this policy, “scholarship” is generally defined as an “informed, reflective, deeply analytical, and, in some substantial part, a personal statement.” In providing a description of “quality of scholarship,” the policy states,

Scholarship should reflect the author's attempt to impose his/her own views or sense of order on the existing material and to explain and justify those personal positions. The scholarly piece should include a carefully conceived doctrinal or theoretical construction that is offered as a perspective on the existing material. Whether it be a new way of perceiving established dogma or a proposal for new directions, the scope of scholarly work should be sufficiently ambitious to justify the substantial commitment of time that the applicant should have invested in the work.

            Because of the breadth and inclusivity of this definition, I was not concerned about whether my legal writing articles and essays would be properly considered “scholarship” as part of my tenure review. In fact, encouraging and including legal writing scholarship in the promotion/tenure track review process were among the principal goals when our faculty developed this definition. Moreover, this definition was extremely important in making the transition to a unitary tenure track for legal writing faculty and clinicians an equitable one. Upon further reflection, I believe this comprehensive definition works effectively in several ways to fully promote legal writing scholarship, regardless of whether it is used to transform a promotion/tenure system, by effectively placing it on a level playing field with all legal scholarship.

            Defining Scholarship Broadly

            First, a broad definition of scholarship provides assurance that much exploration and advocacy is still possible in the national conversation about legal writing. The concept of writing about writing can be intimidating, both to outsiders to the legal writing community as well as newcomers to the field. To some, the effort required to come up with a new and different writing theory seems overly or unnecessarily challenging or even unattainable. Newer legal writing scholars may feel that developing a research or scholarly agenda around legal writing is incredibly intimidating because they have nothing to add to the conversation or at least nothing of any substance that could amount to a full piece of scholarship.

            Having a broad definition like the one above provides some assurance that one can think deeply about what has already been said and either advocate for change or contribute one's own thoughts to the conversation. As a result, the rest of us in the discipline gain the opportunity to evaluate the way we teach our courses, incorporate the “fresh take” on an old idea, and ultimately better equip our students to enter this profession. This approach creates an expectation that legal writing norms will be routinely evaluated because institutions and the larger community value the contributions of those scholars willing to do this work.

            Encouraging Interdisciplinary Content

            Further, this broad and inclusive definition encourages interdisciplinary content from both the legal academy as well as law non-legal disciplines, without requiring it. For those who teach both legal writing and legal doctrinal courses, the definition allows for the opportunity to explore and investigate how to use these doctrinal courses as a basis for teaching legal writing. It also allows for curricular design and development by encouraging intersectional courses, like teaching transactional drafting in a Sales course. For example, I created a course called Pre-Trial Litigation Skills, which took students from case intake to pre-trial conference/settlement and required students to draft the documents that accompanied each stage of the process. They learned the difference between drafting an effective pleading and a persuasive motion, and they had to make decisions in terms of pre-trial strategy by incorporating the rules of procedure along the way.

            For others, encouraging an “interdisciplinary” approach opens the door a little wider and allows for incorporating important writing considerations outside of legal education like educational pedagogy, learning theory, logic, assessment design, or even psychology. Still, for those among us who are very successful at staying within the lines of legal writing to create discreet, useful, and innovative legal writing scholarship, the use of a definition that allows interdisciplinary content-but doesn't mandate it-errs on the side of inclusiveness and will only further the legal writing academy. In other words, the definition inherently and equally values a scholarly conversation about legal writing, regardless of whether it is a doctrinal theory of a particular area of law, legal writing and the integration of a non-legal discipline, or is squarely within the legal writing arena.

            Blurring Traditional Lines

            Finally, the definition of legal writing scholarship should, at a minimum, work to blur the lines between doctrinal and legal writing faculty. Scholarship, regardless of its topic, should be defined by its overall contribution to the larger conversation about how to create better lawyers who will work to advance our system of law, not whether the scholarship is about the law itself. Legal writing is a fundamental skill that all law students must possess to enter the practice of law, regardless of whether their career path is to become an attorney, judge, legislator, or academic/legal scholar. Effective legal writing, in whatever form-including a bar exam essay, simple memo, Supreme Court brief, administrative regulation, judicial opinion, or journal article-is a product of critical thought and analysis. To that end, any scholarship, whether practical or theoretical, that works to enhance the ability of others to instruct and/or produce writing that effectively communicates that critical thought and analysis should be as valued as any other scholarship. My school's definition includes valuable scholarship on legal writing and acknowledges the importance of this scholarship to larger conversations about the law.

            In short, the broad and inclusive definition of scholarship under which I earned tenure does not distinguish between legal writing scholarship and any other kind of scholarship. Rather, it values the effort made to offer a perspective on existing doctrinal or theoretical material regardless of topic. Its implicit inclusion of legal writing scholarship that reflects that value inherently rejects the fiction that legal writing scholars are somehow not as important or valuable to the academy. I would encourage national organizations like the Legal Writing Institute, as well as individual schools, to adopt a definition of legal writing scholarship that is similarly broad and inclusive.

[1] Michelle L. Richards is an Associate Professor of Law at University of Detroit Mercy School of Law.