MEMORANDUM To: Dean Makau Mutua; Vice-Dean Jim Gardner

From: Jeffrey Malkan, Director R&W Program Date: Re: February 29, 2008 R&W Program Status and Self-Assessment

This memorandum addresses, first, the R&W programs structure and staffing model, and, second, its curricular design and implementation. Each section provides my assessment of the current situation and of the pending challenges and decisions that should be reviewed by the faculty in consultation with the program director. 1. Program Structure and Staffing The R&W program provides small sections of legal writing in classes taught by in-house faculty. It runs throughout the first year of law school (fall and spring semesters), commencing before the other classes in both semesters (Introduction to Law Week in the fall, and Bridge Session in January), and ending before the doctrinal classes (Thanksgiving Weekend in the fall and Spring Break in the spring). It is allocated four credits in the fall and three in the spring. Each teacher is responsible for two sections of up to twenty students each, except for the director, who teaches one. This year, we began assigning student assistants to each instructor to provide one-on-one tutoring in citation form and grammar. We currently have a total of thirteen sections for the first year class of approximately 240. In the spring, we allow the instructors to combine the two sections into one larger class. The in-house faculty members who presently teach the course are full time during the period when the course is in session. Therefore, they have a commitment to the law school for approximately six months of the year: September, October, November, January, February, and March. They are free to pursue other interests or employment without any significant obligations the other six months: April, May, June, July, August, and December. The history of the program has involved a gradual transition to a more permanent staff. During the time I have been here, our rate of retention has been about 50%. None of the current instructors was hired by the tenured faculty through normal appointments procedures, but rather are decanal appointments. The hiring process has been ad hoc, with the vice-deans (Dianne Avery, then Peter Pitegoff, and lastly Sue Mangold) and me interviewing candidates, after I had posted the position and screened applications. None of the current staff members were hired with the expectation that they would be permanently employed at the law school. Under Dean Olsen, we began extending contracts on a year to year basis. In November 2001, I attended the AALS Faculty Recruitment Conference in an attempt to hire teaching fellows under the short term contract model. We made four offers, and all four candidates turned us down to take better jobs at 1

other schools (two went to Temple, one to Rutgers, and one to Maine). At that point, we began to consider local attorneys with fewer academic credentials. Three of our present instructors came in through that channel, and did so as a group. They were all former students of Dean Olsen from the early 1990s. The three others are not graduates of UB Law, but are local lawyers whom we hired through the same type of process. Because no one contemplated retaining these instructors for more than three years, we have never undertaken to evaluate their performances in the context of a long-term commitment. We review their course evaluations, but have done no in-class visitations. In light of the problems we had with the five instructors whom we did not renew, we were generally satisfied if the students appeared to be learning, as reflected in evaluations and my review of the material they were covering, and there were no serious or widespread complaints. My impression, however, is that they all satisfy the criteria of teaching the curriculum and of spending substantial time with students on an individual basis, meeting with them regularly in their offices, and providing timely and detailed feedback on their written work. When new instructors are hired, I provide them with closed universe memo problems they can use, a model syllabus, and a selection of textbooks (together with my recommendations). Most of the new teachers choose to use my materials and my recommended books. As the teachers have become more experienced, they have also become more autonomous, although I impose a standard outline of the number of assignments and the due dates. In addition to the six instructors, we collaborate with the six reference librarians to deliver research instruction. As much as possible, I have allowed each teacher to make his or her own choices within the framework of the program guidelines. My most concerted effort at training came earlier in my time here (2001-04), when we hired seven teachers over the course of three years. After that intense period of renewal and turnover, we have only hired two new teachers in the past four years. My overall assessment of personnel is that, given the constraints of short term contracts and low salaries, we have been staffing the program with individuals whose teaching skills are comparable to legal writing instructors at other law schools where terms and conditions of employment are much better. Within these constraints, I believe this is a significant accomplishment. During the past eight years, however, a substantial number of our students have had inadequate instruction or other bad experiences in the R&W course. These students were taught by the five instructors who were not renewed, or, in some cases, by members of the present staff before they had acquired the competence that they have subsequently gained through experience. As much as the quality of instruction has improved, I believe that the trend is beginning to reverse. The instructors have become demoralized by their uncertain contract status and resentful that their pay is below regional norms for R&W instructors; these factors are affecting their ability to work effectively and collaboratively. They have become unwilling to design new writing problems and told me plainly that they would refuse to pick up research instruction if the librarians were unable to continue doing it.

2. Curriculum Design and Implementation A. Current Situation The program focuses on core research and writing skills to the exclusion of other clinical proficiencies. As for writing skills, it focuses on litigation-type writing as opposed to transactional or other types of drafting, and we teach applied legal analysis, writing in plain English (focusing on style and grammar), and citation form (Bluebook). As for research skills, we teach legal bibliography (publication formats for primary and secondary authorities) and how to find primary and secondary legal authorities using print resources and on-line services (Westlaw and Lexis). We also teach an overview of legal methods (governmental sources of law, structure of the court system, nature of legal precedent, sequence of civil and criminal litigations, etc.), especially in the Introduction to Law Week and the beginning of the fall semester. These choices are typical for a first year program and I believe they allow us to expend our time and faculty resources in the most constructive manner. The curriculum revolves around the writing projects. Because of the heavy workload for both students and teachers, we have found that four turnarounds during the course of the fall semester are optimal.1 At this point, this means two different memo assignments, and two rewrites of the assignments. The memo assignments are both closed universe; the second involves considerably more cases than the first. The doctrinal areas vary, but the legal framework in any problem should be simple enough so that little or no background teaching is required.2 The memos are predictive (objective) and are usually based on a black letter rule with multiple elements, where one element gives rise to the single issue. (The second, more extensive memo may involve more than one issue.) The element at issue often contains a legal standard, and the legal standard may implicate a multi-factor test. Other variations on the basic assignment would be a rule and an exception to the rule, or two competing rules where it is debatable which applies or which should be adopted, or a rule with a disputed element that includes a term whose definition or scope of coverage is not clearly delineated. The major analytical skills these memo assignments teach are, first, how to organize a series of rules so that the rules are arranged in order from most general to most specific, second, how to identify the legal issues in the fact pattern, and, third how to apply the law to the facts in the form of arguments and

In 2003-04, we experimented by assigning four different writing projects in the fall, and the faculty objected that our workload was impairing the ability of students to concentrate on their other coursework, so we scaled back to two.
2

I can give examples that I have used myself in the recent past. An example from torts is false imprisonment; an example from property is rights of finders to lost property; an example from civil procedure is service of process on a corporation; an example from criminal law is kidnapping across state lines, i.e., the Lindbergh Act.

counterarguments. The competing arguments should each construct a view of the law that is internally (i.e., doctrinally) consistent as well as consistent with social norms and public policies. The instruction for the memo assignment imparts a version of the standard IRAC format.3 In the first part of the memo (the rule explanation or legal framework) we challenge the students to determine how much doctrinal background or history is necessary to understand the legal issue and at which level of generality the issue arises. The students are then given the challenge of applying the rule or rules to a fact pattern in which a key fact may be interpreted in two different ways depending on which rule is relevant, or two different key facts would give rise to different outcomes under the same rule. In both these variations, what we are trying to teach is how to frame an argument by identifying a dispositive fact and providing a legal reason for why that fact, and not some other, determines the outcome. In making a legal argument, particularly in the context of an open-textured standard or a flexible legal category, the students learn how to use analogical reasoning, i.e., how to describe the facts and holding of a judicial opinion and weave it into a claim about the relevance of a possibly significant or determinative fact. The spring semester revolves around the appellate brief project and moot court. The appellate brief project, a simulated appeal, serves as the bridge from objective (predictive) to persuasive writing. It introduces the appellate process and the concept of judicial review and complements the readings of appellate cases in the casebooks of the doctrinal courses. It also highlights the distinction between doctrinal and policy arguments; a good appellate brief problem will ask the students both to extend or limit a line of precedent and to justify their clients position as consistent with the preexisting decisional law, as well as to justify their desired outcome in terms of policy considerations such as efficient allocation of resources or encouragement of cooperative social behavior. Finally, it teaches and reinforces the skills of common law, statutory, or constitutional interpretation, depending on the topic of the problem. Moot court teaches the skill of oral advocacy and brings the students into contact with lawyers from the community. In the context of making an oral argument, they receive feedback about the validity of their clients position, which they can incorporate into the second (and final) draft of their appellate brief. B. Challenges and Decisions 1. Research instruction. Research instruction in the first year curriculum is undergoing a transition. This is due in large part to uncertainty about what to teach and how to teach it in light of changing technology and new forms of legal publication. It is due in lesser but significant part to the relationship between the law library and the legal writing program.
3

I avoid this term because I think the acronym is somewhat misleading. IRAC was coined by bar preparation courses as a template for issue spotting exam answers, not legal memoranda.

My experience throughout the 1990s was that research in print sources dominated the first semester of the legal writing course. The second (and third, if there was one) assignments would be open universe, and the bulk of classroom time from mid-September through mid-October would be spent on legal bibliography and finding tools (indexes, citators, and digests). Westlaw and Lexis passwords would be withheld until the spring semester, when computerized training would be a separate component of the curriculum. At present, we have not resolved the question of how to teach print resources in an era moving toward computer assisted legal research (CALR) to the exclusion of all else, or how we can teach on-line research to students who have never done book research. The consensus, strongly supported by Professor Jim Milles, is that on-line research should be taught concurrently with book research, and perhaps exclusively (i.e., instead of book research). Accordingly, the students receive their Westlaw and Lexis passwords during Introduction to Law Week. I may have a disagreement with Jim about this (I must let him speak for himself at some future date), but, in any event, I am not sure what instruction in on-line research amounts to beyond teaching the students how to use a particular vendors web page interface. Since the content of the CALR databases are materials that originally appeared in book format (the content of the new medium is the old medium), I dont understand how on-line research can be comprehensible unless the students are first trained in the use of books and their relationship to governmental sources of law as well as to citation formats. (I also dont accept the premise that our millennial generation students, who have been raised using computers and doing key word searches through Internet databases, are standing on the other side of a cultural divide that makes them unable to understand how information can be organized by print indexes and topical outlines.) As far as book research goes, the question is whether book research can be effectively taught by means of freestanding exercises (the traditional treasure hunts or pathfinders), or whether the exercises must be integrated into writing assignments. The reference librarians have taken the position that research cannot be learned in a vacuum, but rather must be integrated into the process of thinking through a legal problem and making decisions about what knowledge is missing from the analysis. (This is the process approach.) I am not sure I agree with this opinion either. The problem with making the research and writing assignments interdependent is that the students will be unable to write a cogent analysis if they have not been successful in their research. My concern about the students anxiety level and workload becomes even more pressing if we insist that on-line research must be taught concurrently with book research and legal analysis. It is difficult for our students to absorb all of these new skills at once. Finally, we have a staffing issue in the area of research training. Jim Milles has told me that he would like to pull the reference librarians out of 1L instruction so that he may deploy his resources more effectively, especially to improve faculty support. If this happens, we have to ask the question of who will be teaching legal research, as well as what they can and should be teaching. 2. Remedial assistance. The law school recently hired an academic support director, Barbara Sherk. This function expands on work that was previously done by the dean of students, Melinda Saran, in 5

addition to her other responsibilities. As noted above, this year we hired individual teaching assistants for each legal writing instructor. In the past, Melinda had hired and supervised writing tutors from the English Department who provided some degree of remedial assistance to R&W students. This was discontinued because Melinda was having trouble retaining qualified tutors and I think she did not feel that the R&W instructors sufficiently appreciated her efforts. I dont know whether the new academic support director is providing enough assistance to R&W students who have been admitted with subpar academic skills. My sense is that perhaps she is being spread too thin because she is also being asked to provide instruction in bar preparation and legal ethics. Her upper division writing course is advertised as a broad based course in New York practice rather than as a remedial one, and is open to all students, not just students who have done poorly in 1L R&W. I know she has pedagogical reasons for this design, but, given the limited resources allotted to academic support, I wonder whether we can afford such an approach. The problem is how to more actively intervene with students who have had problems with legal writing and analysis in their first two semesters of law school, without stigmatizing and discouraging them. 3. Upper division writing instruction and appellate advocacy. The law school would greatly benefit from a school-wide required third semester of legal writing. Our students are as well-trained in research and writing at the end of the first year as can realistically be expected from a single course sequence, but they are not well trained enough. It has been a source of frustration to me that, over the years, at least some members of the faculty have vocally blamed the legal writing program for any deficiencies they have found in their upper division students, but have given the program none of the credit for the many outstanding and well-prepared students who have enrolled in their classes. I dont think the legal writing program deserves all the blame for the bad ones or all the credit for the good ones. The truth is that most students would benefit from more skills training, while some students urgently need more. There is a limit on what can be done in one year; first year skills need to be reinforced and advanced in the second and possibly the third years. Who would direct a third semester course and who would teach it are matters that should be discussed, perhaps with Janet Lindgren and Barbara Sherk included in the discussion. Dissatisfaction has also been expressed about lack of coordination and supervision among the various moot court programs in the law school and with the role played by student organizations. Lucinda Finley and Jim Gardner are the faculty experts in this field, but they have both undertaken administrative positions that may diminish the time they can devote to overseeing moot court teams. Many law schools have full time directors of appellate advocacy and perhaps some thought might be given to whether such a position is needed here. 4. Problem design and authorship. For the first semester projects, we have three options. First, each instructor can be responsible for drafting his or her own assignments. Second, the entire first year program can use a common set of problems, drafted by the director. Third, the instructors can be paired up with doctrinal professors, and the doctrinal professors can design the problems as well as supervise their implementation by the instructors. We are currently using the first approach. It is widely considered preferable in the legal writing community for the instructors who actually must teach the course to have control over the content of 6

what they will be teaching, especially if the instructors are full time professionals rather than adjuncts. I know this is how I feel about my own legal writing course. We essentially used the second approach in 2002-03 and 2003-04, when I had mostly new instructors and was guiding them very closely. As they became more experienced, they expressed a desire to write their own assignments; I agreed to let them do it, since I was doing the same and respected their desire for autonomy. I would be willing to return to this approach if the doctrinal faculty and legal writing staff preferred it. The third approach would diminish the amount of uniformity across the program, but would comply with the desire expressed by some faculty members for collaboration with the legal writing program. Of course, coordinating a legal writing course with one of the doctrinal courses is only a limited amount of coordination in the wider scope of the first year curriculum, and the costs and benefits of such coordination need to be defined. This approach would also risk reducing the instructors to TAs for the doctrinal professors, making them comparable to the TAs in undergraduate laboratory science courses. I dont think it is fully appreciated by some that legal writing is a discrete course that has its own subject matter and in which the instructor has priorities that are not necessarily consistent with the priorities of a doctrinal professor. Finally, this approach would have the effect of placing the instructors under the tutelage and supervision of a doctrinal professor, which would make the director less capable of monitoring the instructors work; this responsibility would likely have to shift to the doctrinal professor. For the second semester projects, the instructors each currently select their own moot court problems. They rarely, if ever, design new ones themselves. Moot court problems are readily available from the Legal Writing Institute Idea Bank as well as from the NYU Moot Court Casebook. The past two years, they have reached the point where they are not even picking new problems borrowed from other law schools, but recycling old ones they previously used themselves. Some legal writing program directors take the view that a problem that has been well-tested by the instructor will serve the students better than one that may have hidden shortcomings or with which the instructor isnt thoroughly familiar, and that designing new problems takes time and effort that would be better spent in other endeavors. I disagree with this position and believe that both students and teachers benefit from the fresh thought that is put into a new appellate brief problem. Another difficulty with the spring semester is that the moot court component places a heavy administrative burden on the director and his secretary when it comes to organizing the oral arguments, recruiting judges, and obtaining CLE credits for them. I would like to involve the Moot Court Board much more heavily in working with and judging the first year students. I also would like to look into the possibility of having the Moot Court Board members design new sets of appellate brief problems each year for the instructors to use. I would train the MCB students and supervise them in working from federal circuit splits to find statutory and constitutional issues at the appropriate level of difficulty. I would welcome the interest of other faculty members who might want to get involved.

5. Statutory construction and regulation. As noted above, one of the criteria for choosing an appellate brief problem is finding a topic that will provide a context for making a transition from common law to statutory interpretation. Unfortunately, this is not being uniformly and consistently done throughout the legal writing program for the understandable reason that good statutory construction issues dont always make good writing assignments or interesting moot court projects. In addition, I am not certain that the R&W instructors are best suited for teaching the principles of statutory construction or placing them into the context of how law functions in an administrative state. I would like to suggest that the faculty consider creating a new 1L course in statutes and regulations, to be taught by doctrinal faculty, perhaps as a mandatory bridge course. Perhaps this course might be paired with a counterpart course that would introduce the fundamentals of international law. This (or these) courses would serve as a gateway to the upper division curriculum as well as a complement to many of the appellate brief projects (which might still be based on statutory questions). I note that Harvards new first year curriculum includes these two courses and some schools are following Harvards lead.4

Harvards new 1L curriculum also assigns each of the legal writing instructors to a first year doctrinal professor; the situation is quite different from ours, however, because Harvard has adopted a true teaching fellow model. All of the instructors (Climenko Teaching Fellows) are inexperienced teachers who have no commitment to teaching legal writing in the future.

Research and Writing Faculty, 2000-2009 2000-01: Malkan, Bratman, Bassett, McGarvie, Schaeffer (only ten sections, Malkan teaching two) 2001-02: Malkan, Bratman, Bassett, Plants, Phillips, (Phillips starting in January 2002; Faherty/Oreskovic substituting fall 2001) 2002-03: Malkan, Bratman, Plants, Phillips, Haynes, Maxwell (adding an additional instructor, moving to eleven sections with Malkan teaching one) 2003-04: Malkan, Plants, Phillips, Haynes, Maxwell, Winkelstein, Reilly (adding an additional instructor, moving to thirteen sections) 2004-05: Malkan, Plants, Phillips, Haynes, Maxwell, Winkelstein, Reilly 2005-06: Malkan, Phillips, Haynes, Winkelstein, Reilly, Cooper, Clor 2006-07: Malkan, Phillips, Haynes, Winkelstein, Reilly, Cooper, Clor (Malkan on-leave, spring 2007, Plants substituting) 2007-09: Malkan, Phillips, Haynes, Winkelstein, Reilly, Clor, Plants Explanations: In 2001, Phillips was hired in March, but did not inform us that she would be unavailable to meet the classes that had been assigned to her in the fall semester. When in mid-July she belatedly gave us this news, Dianne Avery and I were fortunate enough to prevail upon Sara Faherty and Johanna Oreskovic, both former instructors who had moved to other positions in the law school, to take on Phillipss teaching schedule as an overload. In 2003, a seventh instructor (counting Malkan) was added, bringing the number of sections to thirteen. Bassett, McGarvie, Schaeffer, Maxwell, and Cooper were non-renewed for inadequate performance; Bratman and Plants were non-renewed because of the employment cap. (Even though Phillips was hired at the same time as Plants, in 2005 Dean Olsen enforced the cap against only Plants.) Plants returned in 2007 to replace Cooper.