Coursework

Friends of the court

Sweating stragglers, who have hustled to Judd Hall and the eastern extremes of campus on a sunny autumn Monday, negotiate a tangle of legs and book bags to claim a spot of floor or windowsill—the classroom’s table and peripheral desks already occupied.

Photo by Dan Dry Professors Kathy Cochran and Larry McEnerney Syllabus When Kathy Cochran and Larry McEnerney developed English 11401, Writing Law, they drew on their legal consulting experience. “We had discussed the particular problems faced by young lawyers,” recalls Cochran, “when they leave law school and must leave behind the pleasures and comforts of writing abstractly about the law.” To help their mostly undergraduate, law school–bound students rework academic prose for a professional audience, Cochran and McEnerney keep the class busy with writing assignments—a few pages due each class covering different legal genres including summary, memo, and brief. The midterm asks students to analyze two legal compositions and to summarize a law as though writing for a partner in their law firm. The final assignment, in turn, calls for a longer and more detailed analysis, along with a revised section of a 25-page brief that the students have prepared earlier on topics such as libel or intellectual property rights. Writing Law has both a pragmatic and a philosophical angle, explains McEnerney. On a basic level, the course examines “how lawyers use their writing to succeed at their tasks.” But on the more theoretical end, he is “interested in how writing shapes thinking in ways that people are not even aware of. Lawyers often write a three-prong test or a six-prong test as a way of resolving legal questions. Pretty soon,” he says, “you start looking at the world [that way], looking for good prongs.” Cochran, a lawyer who no longer practices, acknowledges their partners in the enterprise. “To the extent the course is succeeding, it’s because we have a group of students who are highly self-motivated,” she says. “I want to give credit where it’s due.”

The official enrollees in English 11401, Writing Law, will eventually fit comfortably in the corner room (the class is capped at 16), but on this first day of fall quarter students shop around. So professors Larry McEnerney, AM’80, and Kathy Cochran, AM’87, usher the class upstairs to more spacious accommodations, where their charges resettle and fall silent—a little too silent for McEnerney’s taste: “You’re already qualified for law school,” he quips to the mostly undergraduate group, many of whom are using this English course as an early step toward a legal career. “You’ve got that stone-faced law-school look.” He pauses as his listeners stir themselves from their midafternoon stupor. “But you’re not in law school yet, so smile.”

Though he and Cochran team-teach the course, today McEnerney, a gregarious 50-year-old in an earth-toned suit, assumes the lead. Taking the sheepish grins he’s earned as a sign he has the audience’s attention, he starts to present his case: “What difference does it make,” he asks, “that the law is written one way and not another?” The question, it turns out, will frame subsequent class discussions, often appearing as a pithy “So what?” response to a student’s not quite complete thought about the wording of the Second Amendment or the IRS tax code. Watching a classmate stutter through several “So what?” interrogations can be painful. But there’s always the payoff “aha” moment when, for example, the class realizes that the Second Amendment’s language neglects to mention the legislative branch, that this absence implicitly posits a power structure in which Congress isn’t so important after all, and the burden shifts to the next student.

Declining to pass out syllabi—it’s only the second year that he and Cochran have taught the course—McEnerney verbally outlines class requirements (lots of writing, a midterm, a final assignment) and insists that in this class, cross-listed with Law, Letters, and Society, deadlines matter, “just like in the law.” Late papers, he states, will not be accepted. It’s a standard declaration, repeated in classrooms across campus. But to really bring the point home, and to introduce the practical complexities of drafting law, McEnerney and Cochran pass out scrap paper (preprinted with the word “Rule” and eight or so blank lines), and he asks the class to “capture what I was just talking about.”

The 30-some students, 22 of whom are women, frown, poke their tongues out thoughtfully, jiggle their feet (forming a subtle chorus line in the back row), and compose. McEnerney and Cochran stand at the room’s front, flanking the chalkboard, and watch silently. After five minutes or so papers are passed forward, and McEnerney asks the class to name characteristics of a well-written law as he marks “good” and “bad” columns on the board. A curly-haired woman posits that a bad rule has “vague terminology.” McEnerney chalks “vague” in the bad column, “precise” in the good. Another woman, wearing light pink, says a good rule is easy to understand. This trait makes it onto the good list, while another student offers up “wordy” for the bad.

Eventually satisfied with the columns’ depth, McEnerney holds up two samples of the student-drafted rules, one six or seven lines long—about as precise as it’s going to get but perhaps a bit wordy—the other a quick line or two—no doubt easy to understand but not as specific.

“Folks,” McEnerney says, “they can’t both be right. How we gonna judge?”

Jumping to defend her lengthy contribution, a woman in a blue hair band argues for including information such as to whom the law applies. When a man in a black polo, presumably promoting his brief composition, counters that everyone already knows which class is subject to the rule, McEnerney asks his jury, “Who’s right?”

Before anyone can venture an answer, he points out that as legal writers, they’ll have to make these decisions all the time. Citing a constitutional framer, he says James Madison argued that specificity is brittle. Vagueness, on the other hand, lives. Take for example the First Amendment—the Founding Fathers couldn’t have anticipated modern media, like the Internet. But because they didn’t restrict the amendment’s scope to printed news, modern interpretations can apply the law to new circumstances.

Returning to the no-late-papers edict, McEnerney asks if the rules the class wrote qualify as brittle. How would they be interpreted in the event, say, of a class-canceling snowstorm? Is there room for changing contexts? And who is the audience? Are they writing for any reader, only University students, only people in this course?

Before class members despair that their rules were written all wrong, McEnerney offers some reassurance, “I’m trying to construct this as a problem. It’s not something that Kathy and I are going to say, ‘Ta-da. Here’s a solution.’”

"How we use language changes what we deicde the truth will be."

In fact, although it’s a problem “that everyone is trying to make go away,” interpretation is an intractable issue, deeply intertwined with law itself. Writing Law is a course whose concept, McEnerney explains, “reflects an idea about how language works.” He strides to the shaded windows and lifts the blinds, flooding the room with afternoon light.

“People think that the rule exists somewhere out there,” he says, pointing to the business school’s new home across the parking lot, or perhaps the wider world in general. Many assume, he continues, that writing is simply descriptive and that there’s a “just right” version that would perfectly capture an objective reality. Legal language in particular, he notes, “tries to make itself disembodied,” ignoring both writers and readers.

But he and Cochran “fundamentally oppose the idea that writing is a window.” No piece of writing, he explains, is a transparent description of the world. In fact, “how we use language changes what we decide the truth will be.”

Both writer and reader are inextricably involved in the text—a complex relationship that McEnerney maps on the board and the class members quickly copy into their notebooks. In this course, he says, the students will have to carefully craft their words for their audience. Or, rather, their pretend audience: “It a fraud,” McEnerney admits, but the course asks students to write for legal professionals—lawyers, judges, clients—depending on the assignment. And their work is judged, in part, on how well they speak to such readers.

“We want them to see quickly,” explains Cochran in a later conversation, “that what really matters most for them is their ability to imagine the legal community and make choices about their writing based on the legal community.”

One of the problems with actual legal writing, notes McEnerney as he passes out another exercise, is that students have been trained to address professors, a style that later gets “bureaucratized in the profession” even though it doesn’t work well in a real-world setting.

When everyone has received a copy of what turns out to be Lincoln’s Gettysburg Address, McEnerney gives the class ten minutes to summarize it. Collecting the papers after eight minutes (“It’s not about fairness, it’s about power,” he jokes to a complaining student), he leads a discussion on what makes for clear summary. The class hits a stalemate on whether a summary should include background information. But that argument, the professor makes plain, misses the point.

One of the chief temptations of teaching writing, McEnerney says, is to drill formal rules—the subject comes before the verb, the structure of a five-paragraph essay, or whether a summary must include background. And while that’s “stuff you need to know,” he says, it’s inadequate.

“We’re not going to teach you what a good brief is,” warns McEnerney, “because that’s going to change” with different circumstances and readers. Rather, the plan is to teach the nascent lawyers how to evaluate and respond to their readers. “This will drive some of you crazy,” he continues, “and part of that is because of [the class’s] content; part of that is because Kathy and I drive people crazy.”

Writing instruction, he continues, should focus “not so much on what it is, but what it does.” As legal writers, they must be aware of how their words interpret the world on one end, and how those words will be interpreted by their readers on the other. “In law,” McEnerney says, “what [writing] does is driven by readers’ needs.” Indeed, he says, smiling to the room of would-be lawyers, “Almost nobody does this stuff because it wells out of an inner need to create.”—A.L.M.