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The Second Draft - Volume 27, No. 1

Whatever (Squared) DOWNLOAD PDF

  • Linda L. Berger
    Family Foundation Professor of Law
    Boyd School of Law-University of Nevada, Las Vegas

In a recent essay called Whatever, the author characterized arguments in the current affirmative action lawsuit before the Supreme Court as “just the latest in a long line of legal maneuvers designed to make our compulsive cultural addiction to racial oppression appear morally acceptable.” It is hard, he wrote, to know what to do next in the face of a series of doctrinal arguments about strict scrutiny, compelling state interests, and narrowly tailored means: “Other than emit a despondent sigh. Yeah. Right. Whatever.


For this issue, the editors of The Second Draft asked: “For professors of LRW, does scholarship mean focusing only on issues uniquely related to legal writing instruction, such as teaching research skills or how to construct and draft legal memoranda; or, should it also mean developing an additional ‘doctrinal’ area of expertise?”

 I’m going to suggest that the answer is neither; instead, we should focus on Whatever and Whatever, Squared.

 Several years ago, my co-authors and I argued that legal writing professors are already working in “a third generation of legal writing scholarship—one that integrates the elements of our professional lives and engages more effectively with our professional communities. The core of such study and practice is rhetoric.” We said that legal writing professors were a natural fit with scholarship that demonstrates to others why legal reading and legal writing count, why they matter, why they are the core components of understanding law and engaging effectively in law study and law practice. I won’t repeat that argument here, but this short essay obviously relies on the study and teaching of “law as rhetoric” for its support.

What do I mean by Whatever? I mean scholarship in which we say (as did the author of the article cited above), “this is what the law says; this is what the lawyers and judges argue; but look, this is the argument you will uncover if you look critically at the larger world in which these events are unfolding.” As experts in constructing and deconstructing legal persuasion and argumentation, we have the ability, and perhaps even the obligation, to examine what is taken for granted in legal reasoning and legal argumentation. This kind of scholarship should sound familiar: it is the kind of scholarship that was first known as “critical” legal scholarship. And it is the kind of “political” scholarship legal writing professors have used for years to examine “what is really going on” in terms of unequal status and to argue for change within the legal academy.


And what do I mean by Whatever, Squared? I mean scholarship that goes beyond the separate categories allotted to legal theory, doctrine, skills, and values; this scholarship sheds light on what it means to be a lawyer and to work in the law. The questions posed by the editors fall more or less into the first two of the three apprenticeships described by the Carnegie Report: learning legal analysis and practical skills. My suggestion here is that our scholarship should further explore aspects of the third apprenticeship, the apprenticeship of legal identity, and it should work to integrate all three, to “link the learning of legal reasoning more directly with consideration of the historical, social, and philosophical dimensions of law and the legal profession.” The third apprenticeship is open to student and professor; it helps us learn who we are as lawyers by exploring the effects of what we do.

For our students and ourselves, professional and personal identity is formed by what we say and what we neglect to say, what we study and what we neglect to study: “[w]hen faculty ignore—or even explicitly rule out-of-bounds the ethical-social issues embedded in the cases” they discuss, they are teaching that these issues mean nothing.  Thirdapprenticeship scholarship incorporates our study of legal theory, doctrine, and practice with our investigations of language, literature, history, culture, psychology, sociology, and other disciplines. It takes seriously the idea that legal rhetoric has substance and consequences. It looks closely at how the broader rhetorical culture interacts with the law within our communities as well as in law school, in the courtroom, in the executive office building, and in the legislature. It looks at the messy details and complex contexts in which legal disputes arise, and it opens up the law and legal arguments to forgotten clients, neglected audiences, and disfavored modes of legal conversation.

Prof. Jack Sammons has argued that legal education needs to move beyond the “seemingly endless dialogue between . . . the traditionalists and the technicians.”9 Traditionalists assume that they can teach students to think like lawyers. Technicians assume that they can teach students to practice like lawyers. Rather than pursuing only those assumptions, perhaps we can spend some of our time engaged in third-apprentice scholarship: studying and teaching what becomes of us, our students, and the law, while we are in the process of learning and practicing law