The legal writing

8/10/2019 The legal writing

1/38

A Reflective Rhetorical Model:TheLegal

Writing Teacher asReader andWriter

Linda L. Berger1

Like most writing teachers, the legal writing teacherbelieves that hisreading andresponse to student work is themostimportant thing hedoes,2an importance that isunderscoredbythe amount oftime ittakes.3Yet, despite itsimportance and thehours it consumes, therhetoric of teacher reading andwriting

remains relatively unexplored.4

This article proposes thatwe begin to apply what wehave learned about student readingandwritingto our ownreading andwriting. Ourprocess ofreading

1 Linda L.Bergeris anassociate professor atThomas Jefferson SchoolofLaw.She

has been teaching legal writingforeleven years andformerly served asdirector oflegalwriting anddirector of academic support at Thomas Jefferson. The author owes specialthanks to Pearl Goldman andJames B.Levy fortheir thoughtful responses to earlierversionsof this article.

2 ELAINE

P. MAIMON ET AL., THINKING, READING, AND WRITING

xvi (1989) (teacher readingandwritingis theonly way teachers canteach others towrite).3 See, e.g.,Jill J. Ramsfield, Legal Writing in the Twenty-First Century:A Sharper

Image, 2 J. LEGAL WRITING 1, 7-8 & n.64(1996) (estimating that legal writing teachersspend 20hours aweek doing face-to-face teaching, including class time and time spentmaking written andoral comments).

4 Anne Enquist of the Seattle University SchoolofLawhasdonetheonly published

study of legal writing teachers' comments on student papers. Anne Enquist, CritiquingLaw Students' Writing: What theStudents Say Is Effective, 2 J. LEGAL WRITING145(1996).Seealso Terri LeClercq, ThePremature Deaths of Writing Instructors, 3 INTEGRATED LEGAL RES.4, 8-14 (1991) (recommending critiquing rather than editingand a focused list ofcriteria foreach assignment); Elizabeth Fajans &MaryR.Falk, CommentsWorth Making: Supervising Scholarly Writing in Law School, 46 J. LEG.EDUC. 342, 349,

352, 362,366(1996) (suggesting different roles for teacher feedback at different stagesin the student's writing process); Mary Kate Kearney & Mary Beth Beazley, TeachingStudents How to"Think Like Lawyers": Integrating Socratic Method with the Writing

Process,64TEMP.L.REV. 885, 898-99 (1991) (recommending focused responses coincidingwith thestudent's movement through thewriting process);J.Christopher Rideout & JillJ. Ramsfield, Legal Writing:A Revised View,69WASH.L.REV. 35,74(1994) ("becauseofthe powerandauthority that liewith theprofessor, . . .commentscaneasily discouragestudents andestrange them from anysense that writingis agenerative social activity").

Ontheneedforcontinuing explorationofteacher readingandresponse,see, e.g., Janet Gebhart Auten,A Rhetoric ofTeacher Commentary: TheComplexity ofResponseto

Student Writing, 4 FOCUSES 3, 11-12 (1991) (little theory hasemerged todescribetherhetoric of teacher commenting); LadTobin,How theWriting Process Was BornAndOther Conversion Narratives, in TAKING STOCK: THE WRITING PROCESS MOVEMENT IN THE

'90S, 1, 11 (Lad Tobin & Thomas Newkirk eds., 1994) (left unexplored,wemay continueto "read student essays invery traditional waysfocusing onerror, actingas ifwearedealing with 'finished' products, isolating ourselves from other readers.").

57


2/38

58 TheJournal ofthe Legal Writing Institute [6:57

and responding tostuden t work should be asreflective and rhe

torical as thereading andwrit ing process tha t wesuggest for

our students.As weread, write , andcomment, we should be

conscious ofthe movement ofour students andourselves from

meaning totext toreader towriter andback;weshould focusas

much onplanni ng, monitoring, andrevising our own reading

and writing as we do oncommunicating ourinterpretations of

student work; and weshould use ourownreading andwrit ing

experiences toreflect on andrespond towhat ourstudentsare

doing.

The article isbased on theNew Rhetoric school ofcomposition theory andresearch. It begins with theNewRhetoric the

ory that reading andwriting areprocesses for the construction

of meaning, that "writing" is theweaving ofthought and knowl

edge through language, notmerely theclothing ofthoughtand

knowledge in language.5 From New Rhetoric theory comesthe

view that reading andwri ting comprise a series of transactions

between reader andwriter, reality and language, prior texts and

this text, theindividual and thecontext. These tra nsa cti ons

generate response, response generates reflection, and reflection

generates further response andrevision.6 NewRhetoric theory

thus suggests that teachers can ta pinto these transac tions, par

ticularly thetransact ions between s tudent s andteachers, to im

prove student reading and writing.7

The article next draws onNewRhetoric research intoth e

composing process. This research created animage ofwritingas

always in progress, a process ofdiscovery tha t is messy, slow,

tentative, andfull ofstarts andstops.8 Despite recent criticism,this NewRhetoric i mage ret ain s i ts power to describe wh at

writers do and toprovide a framework forteaching and learn-

5 See ANNE. BERTHOFF, THEMAKING OF MEANING: METAPHORS, MODELS, ANDMAXIMS

FOR WRITING TEACHERS69 (1981); JANET EMIG, THE WEB OFMEANING: ESSAYS ONWRITING,

TEACHING, LEARNING AND THINKING 4 (1983).6 See, e.g., Marlene Scardamalia &Carl Bereiter, Development of Dialectical

Processesin Composition, in LITERACY, LANGUAGE, AND LEARNING 307,327(David R. Ol

sonetal. eds., 1985) (dialectical processing isnotonlyacauseof butalso theresultofreflective thought).

7 The transactions between students andteachers are thesubject of a rhetorical

model discussed inSectionIIof this article.SeeAuten, supra note4,at 4.8 See EMIG, supra note 5, at 4;Maxine Hairston, TheWinds ofChange: Thomas

Kuhnand theRevolution intheTeachingofWriting, 33 C.COMP.&COMM.76, 85(1982);LINDA FLOWER, THECONSTRUCTION OFNEGOTIATED MEANING:A SOCIAL COGNITIVE THEORY

OF WRITING(1994).


3/38

2000] Reflective Rhetorical Model 59

ing.9 Largely because of this image, thewriting teacher tries to

engage students in thekind ofexploratory, recursive, reflective,

and responsive process that expert writers describe rather than

to steer students from step to step through theproduction of a

finished document.

Finally, the article encompasses a developmental model of

writing teacher response.10

This model places teacher responses

on a continuum, beginning with dualistic responses that judge

writing as correct or incorrect because of its presentation; mov

ing to relativist ic responses t ha t view writ ing as unable to be

judged because of its ideas; and developing into reflective responses that open up thepotential forrevision ofboth ideasand

their presentation.11

Reflective response provides an appealing

imageof the writing teacher as a reader and a writer who"rhe

torically sits next to" the student reader andwriter as the stu

dent navigates the loopsof an in-progress writing.12

Largelybe

cause of this image, thewriti ng teacher r eads and responds to

student work while students are in the process of composing a

text rather than after thetext hasbeen completed.13

Based on these themes, the article proposes a reflective rhetorical model ofteacher response that recognizes the complexity

of the transactions among the subject, the stud ent r eader, the

student writer, and the student text, the teacher reader, the

teacher writer, and the teacher text-on-text . Acting as readers

and writers, teachers can stimulate, support, andguide a reflec

tive conversation between the student-as-reader and the stu-

dent-as-writer torealize the student text.14

Byrespondingto his

student's work as another writer and another reader, a profes

sor can"enhance student s' awareness of the rhetorical nature of

9See, e.g.,Robert P.Yagelski, Who's Afraid ofSubjectivity?, in TAKING STOCK, supra

note4, at203, 208 (claiming that theideaofwritingas process remains "essentiallyintact" because it"remains themost compelling anduseful way to describe what writersactually seem todo").

10SeeChris M.Anson, Response Styles &WaysofKnowing, in WRITING AND RE

SPONSE: THEORY, PRACTICE, AND RESEARCH 332 (Chris M. Anson ed., 1989) (citing WILLIAM

PERRY, FORMS OFINTELLECTUAL ANDETHICAL DEVELOPMENT IN THECOLLEGE YEARS: A

SCHEME(1970)).11

Anson, supra note 10, at343-54.12

Id.at353.13

SeeNancy Sommers, Responding toStudent Writing, 33 C.COMP.&COMM.148,149 (1982) [hereinafter Sommers,Responding toStudent Writing].

14SeeAuten, supra note4, at 8-10(suggesting that more effective communication

occurs when boththestudent and theteacher areoperatingin thesame context, thatis,when the student writer hasrequested theteacher's commentsand can treat them assupportive andsuggestive).


4/38

60 The Journal oftheLegal Writing Institute [6:57

writing, as a transaction between writers andreaders."15

The

professor's commentscan actas amodelfor thekind ofreadingwe ask thestudent writer-as-reader todo, asking questions,monitoring progress, and provoking second thoughts.

16 Thepro

fessor's commentscan actas amodelfor thekind ofwritingweask the student reader-as-writer todo,writing that is responsive to context, purpose, subject, role, andaudience andsensitive tostyle andtone.

As writing teachers, we areunavoidably engaged in a rhetorical transaction with ourstudents whenweread andrespond

to student work. That transaction happens with orwithoutreflection, but composition theory teaches usthat using responsesto generate reflection andusing reflection togenerate responsescan help ourstudents and ourselves become better readersandwriters.17

I. NEWRHETORIC THEORY ANDTHEPRACTICE OFTEACHER

COMMENTARY

New Rhetoric began in theory about thenature ofwritingand therelationship between thought andlanguage. In NewRhetoric, writing isaprocess forcreating knowledge,notmerelya means forcommunicating it.18Reading is a process for con-

15 Rideout &Ramsfield, supra note 4, at 73-74.16 SeeSommers, Responding toStudent Writing, supra note 13,a t148 (commenting

on student writing dramatizes thepresence of a reader andhelps st ude nts become bet

ter readers oftheir ownwriting);Sue V.Lape & Cheryl Glenn, Responding to Student

Writing, in THE ST. MARTIN'S GUIDE TO TEACHING WRITING 437, 442 (Robert Connors &

Cheryl Glenn eds.,2ded.1992). "When the teacher reads andresponds as critic, writing

suffers andsometimes dies. When theteache r becomes a respectful reader, andmodels

that same concerned response forstud ent reade rs, writin g thrives."Id.a t 444.17 Reflective behavior is used here in thesense ofmonitoring curre nt m eani ng and

adjusting goals, ideas, plans,orstrategi es wh en itappears thereader orwrite r was mis

taken; it is th eability tothi nk about a process inprocess. SeeKath ari ne Ronald,The

Self and theOther in theProcess ofComposing: Implications forIntegrating theActs of

Reading and Writing, in CONVERGENCES: TRANSACTIONS INREADING AND WRI TING 231, 234

(Bruce T.Petersen ed.,1986).

Such reflection is a mark ofbetter readers andwriters, bette r learn ers, and experts.

See, e.g, June Cannell Birnbaum, Reflective Thought: TheConnection between Readingand Writing, in CONVERGENCES, supra, at30, 31(noting the reflective parallel in reading

and writing); Paul T.Wangerin, Learning Strategies for Law Students, 52ALB.L. REV.

471, 477(1988) (self-monitoring andreflective change aresigns of a "good learner");

Gary L.Blasi, What Lawyers Know: Lawyering Expertise, Cognitive Science, and the

Functions of Theory, 45 J. LEG. EDUC. 313,342-43 (1995) ( expert s aremore reflective

than novices andmore able tomak e appropr iate change s in response toproblemsde

tected inthe ir monitoring).18 BERTHOFF, supra note 5, at68-69.


5/38


structing meaning, not jus t an Eas te r egg h u n t to find it.19

These knowledge-shaping processes are complicated and active,

a "putting together" of mean ing between reade r, writer, and

text, all of which are embedded in context and language.20 In

contrast, the traditional models of reading and writ ing were

straightforward andpassive: the writer began with a main idea,

the reader found and followed it, and both could agree on the

point of the piece.21

New Rhetoric theory thus extends beyond the "process"ap

proach, suggesting not only that writing should be taught as a

process but also that the process should beused to make meaning. Beginning in the 1970s, the rhetorical theory was supported

by theresults of research describing the writing processes of ex

perts. Backed bytheory and research, NewRhetoric teachersbe

gan to focus their teaching on what writers "do"rather than on

what writers "know," believing that what writers do is how they

come to know.22

Because of New Rhetoric theory, t eachers of legal readin g

and writing are able to view their subject as the construction of

thought rather than the construction of a document.23 Because

19 See, e.g.,Christina H aas & Linda Flower, Rhetorical Reading Strategies and the

Construction ofMeaning, 39 C. COMP. & COMM. 167(1988). Theconstruction of meaning

depends no t only on the reader's knowledge and experience. "[Wjhen rea der s c onstr uct

meaning, theydo so in the context of a discourse situation, which includes thewriter of

the original text, other readers, the rhetorical context forreading, and thehistoryof the

discourse." Id. at 167.20

See Anthony R.Petrosky, From Story toEssay: Reading and Writing, 33 C. COMP.

& COMM. 19, 22 (1982) (reading, response to l i terature, and composition are similar

processes sharing "the essential 'pu tting together' as the act of constructing meani ng

from words, text, prior knowledge, and feelings"); DAVID BARTHOLOMAE & ANTHONYP E

TROSKY, FACTS, ARTIFACTS AND COUNTERFACTS: THEORY AND METHOD FOR A READING AND

WRITING COURSE 12, 15 (1986) (student r eade rs should be viewed as "composers, rather

than decoders," and reading should beviewed as a transaction between reader and text

"rather than an at tempt to guess at a meaning that belongs to someone else").21

Many students prefer this more straightforward view: they "expect knowledge or

information to be given to them rath er than taking an active role in obtaining or shap

ing that knowledge." Ronald, supra note 17, at 235-36.22

Thefield th at b ecame kno wn as composition studies "wastransforme d w hen theo

rists, researchers, and teachers ofwritin g began tryi ng to find ou t wha t actually hap

pens when people write. . . . Thegoalhasbeen toreplace a prescriptive pedagogy (selecta subject, formulate a thesis, outline, write, proofread) with a descriptive discipline

whose members study and teach 'process not product.' "James A. Reither, Writing and

Knowing: Toward Redefining the Writing Process, 47 C. E N G .620 (1985), reprinted in

THE WRITING TEACHER'S SOURCEBOOK 162 (Gary Tat e et al. eds. , 3d ed., 1994) [hereinafter

THE WRITING TEACHER'S SOURCEBOOK 3D ED.].23

See BERTHOFF, supra note 5, at 69 (writing should be seen as a process for con

structing knowledge); James F. S t ra tman, The Emergence of Legal Composition as a

Field of Inquiry: Evaluating the Prospects, 60 REV.OFEDUC. R E S .153, 215 (1990) (some


6/38


of NewRhetoric research, teachers oflegal readi ng and writing

bring totheclassroom a more complete and complex view ofthe

processes of s tud ent readin g andwriting.2 4 Because ofNew

Rhetoric teaching practices, teachers oflegal r eadi ng andwrit

ing emphasize thegeneration offirst thou ghts andthei r revision

into second thoughts asmuch as th epolished pres enta tion of

thought. 25 Finally, because ofNew Rhetoric, teachers of legal

reading andwr iti ng believe thei r comme nts should help stu

dents realize "the potential fordevelopmen t implicit in their

own writing" byinducing inthem a sense ofthepossibilitiesof

revision.

26

Thus, forexample, rath er th an telling a studen t th atshe hasorganized a discussion incorrectly, thete ach er poses

questions designed tohelp the student recognize that a different

organization would allow he r to communicate herideas more

effectively.

Until theintroduction ofNew Rhetoric theory and research

in the1970s, thecurren t-trad itiona l model ofwritin g instruc

tion, with itsemphasis on thefinal product, wasreflected in a

rule-based, right-or-wrong style ofresponse.27 Many teachersre

sponded tostuden t writing byemphasiz ing technical rules th atallowed them tojudge wheth er a parti cular sentence s truc ture ,

pronoun reference, orworduse wascorrect orincorrect. Thisre

sponse style notonly suited themode ofinstruction butalsowas

research suggests that legal thinking, reasoning, andarg umen t skills can be improved

through writing).24 See,e.g., Linda Flower &John R.Hayes,A Cognitive Process Theory of Writing,

32 C.COMP. &COMM. 365(1981) (describ ing the composition process asconsisting ofele

mentary mental processes andsubprocesses operatin g as a recursive hierarchy); TeresaGodwin Phelps, The NewLegal Rhetoric, 40Sw. L.J. 1089(1986) [hereinafte r Phe lps ,

The NewLegal Rhetoric] (describing theapplication ofthe cognitive process approachto

legal writing) .25 See, e.g.,Fajans &Falk, supra note 4, at 346(describing the writer-centered

phases, prewriting andwriting aslearning, as themos t complex and creative part of a

writing project); ERIKA LINDEMANN, A RHETORIC FOR WRITING TEACHERS 105-40, 184-206

(3ded. 1995) (describing a range ofprewriting andrewr itin g activities) [hereinafter LIN

DEMANN, A RHETORIC]; PETER ELBOW, WRITING WITH POWER: TECHNIQUES FOR MASTERING

THE WRITING PROCESS(2d ed.1998) (describing a two-step writing process ofcreatingand

criticizing, placing most oftheemphasis onprewriting and revising) [hereinafter ELBOW,

WRITING WITH POWER].26

Sommers, Responding toStudent Writing, supra note 13,at156.

27 "Throughout most of it shistory as a college subject, English compositionha s

meant onething tomost people: the single-minded enforcement ofs tandards ofmechani

cal and grammatical correctness inwriting." Robert J.Connors, TheRhetoric of Mechani

cal Correctness, in ONLY CONNECT: UNITING WRITING ANDREADING 27 (Thomas Newkirk

ed., 1986)[hereinafter Connors, Mechanical Correctness]. Seealso Anson, supra note10,

at 333-38 (describing thedualistic approach inwhich thes tudent and theteachersee

the work inpolar ter ms, righ t or wrong, good or bad).


7/38


the result ofpractical constra ints onthe rhetoric ofcommenting.

English composition had"ahistory ofpoorly tr ained ins tructors

pressed byoverwork andcircumstance toenforce themost eas

ily perceived standards ofwritingmechanical standardswhile

ignoring or sh or tc ha ngi ng more difficult and rhetorical

elements."28

When New Rhetoric theory andresearch shifted the focus

from thecomposed product to thewri ters ' composing processes,

it wassupposed toshift theteaching of"composition" away from

the pointing outoferror toward theteaching of a rhetorical pro

cess.29

Ifwriting wasa rhetorical process, the"error" approachpaid attention to thewrong thing, focusing on the endproduct

rather than on theongoing process. Ifwriting was supposed to

be exploratory, recursive, andreflective, theerror approachdid

nothing toencourage those activities. Ifwriting wasa meansfor

constructing thought, theerror approach concentrated onthear

bitrary30

and the trivial, such asgrammatical errors orpunctua

tion mistakes, while bypassing themore difficult, more impor

tant , andmore i nter est ing problems ofthinking and learning

through writing.Equipped with their new theory andknowledge ofthe stu

dent composition process, NewRhetoric writ ing teachers would

focus less onmechanical "accidents" and more onrhetorical"es

sences."31

Their comments would bedesigned tohelp stu dent s

improve thenext paper ra the r th an tojustify the grade givento

this one.32

NewRhetoric wri ting teach ers would begin to play

28 Connors, Mechanical Correctness, supra note 27,at28.29 The idea that teachers could be"rhetorical audiences" fortheir stude nts appar

ently dates back to theear ly 1950s. Robert J. Connors &Andrea A.Lunsford, Teachers'

Rhetorical Comments on Student Papers, 44 C. COMP. & COMM. 200,201(1993),re

printed in THE ST. MARTIN'S GUIDE TO TEACHING WRITING, supra note 16, at 445 [herein

after Connors &Lunsford, Teachers' Rhetorical Comments].30 A study ofthe marking practices ofEngli sh teach ers showed, forexample, th at

despite a collective agreement onsome grave er rors, other e rrors were located prima rily

in theeyes ofthe beholder. Elaine O.Lees, TheExceptable Way ofthe Society: Stanley

Fish's Theory of Reading and the Task of the Teacher of Editing, in RECLAIMING

PEDAGOGY: THERHET ORIC OF THE CLASSROOM at 144, 150,156-57 (Patri cia Donah ue & El

len Quandahl eds.,1989).31 SeeEMIG, supra note5, at 94.32 In a 1984article summa rizing curre nt views ofwrit ten response, theauthor dif

ferentiated between summative andformative evalua tion andnoted tha t his concern

was only with formative evaluation. Formative evaluation "isintent onhelping stud ents

improve their writing abilities," while summative evaluation "treats a text as a finished

product and the student' s wr iting ability as at lea st mom en ta ri ly fixed." Brooke K.

Horvath, TheComponents ofWritten Response: A Practical Synthesis ofCurrent Views, 2

RHETORIC R EV. 136 (1984), reprin ted in TH EWRITIN G T EACHER'S SOURCEBOOK 3D ED.,


8/38

64 TheJournal of the Legal Writing Institute [6:57

more rhetorically appropriate roles, such as writing coach or

representative reader, rather than only the role of the gate

keeper "charged with admitting or not admitting, approving or

not approving."33

Despite these views, leading research studies indicated that

the NewRhetoric prescriptions were not descriptions of teacher

commenting, that what New Rhetoric theory and resea rch sug

gested was not being practiced in the classroom.34 Although

teachers had become more interested in rhetorical issues such

as planning and ordering, invention and arrangement,3 5 they

commented in large numbers on only twogenera l area s amongthe more common rhetorical elements, supporting details and

general organization, and very few papers contained comments

about purpose, audience, or content.36

Even when rhetorical

comments were made, they seemed to follow "rhetorical formu

lae that are almost as restr ict ing as mechan ica l formulae."37

Most global comments served tojustify and explain grades; only

a little more than tenpercentof the comments seemed to advise

the student about the paper as a work in progress.38 Even

though three-fourths of the papers contained some kind of rhetorical comments, "[t]he job t ha t teache rs felt they were sup

posed to do" was to look at papers rather than students and to

correct and edit rather than to respond as readers or to respond

to content.39

supra note20, at207, 207-08.33Auten, supra note4, at 11-12.34

Theleading studies involved some 20,000 undergraduate college papers collectedin themid-1980s, from which twoseparate groups of3,000 papers were selected for twodifferent studies. Theresearchers first looked at error-marking patterns in the papersand then at the"global comments," that is, comments that responded to thecontentorrhetorical aspectsofthe papers.SeeRobertJ.Connors & Andrea A. Lunsford,Frequencyof Formal Errors inCurrent College Writing, or Ma and PaKettleDoResearch, inTHEST. MARTIN'S GUIDE TO TEACHING WRITING, supra note 16, at 390; Connors & Lunsford,

Teachers' Rhetorical Comments, supra note 29.Additional research on teacher commentary issummarized inAnne Ruggles Gere&Ralph S.Stevens,The Language ofWritingGroups: How Oral Response Shapes Revision, inACQUISITION OFWRITTEN LANGUAGE:RESPONSE AND REVISION85, 98-104 (Sarah Warshauer Freedman ed.,1985).In thelatterar

ticle, the authors report on their comparison ofteacher and student comments.35 Connors &Lunsford, Teachers' Rhetorical Comments, supra note29, at 218.36

Id.at208.37

Id.at218.38

Id.at207.39

Id. at 217.Oneexplanation for this discrepancy between theory andpractice is

that thepeople doingthegradinghadother things on their minds."[I]fthe rhetoricians

oftenget thebest of the abstract arguments, the traditionalists canstill point tosavage

overworkas an occupational reality formany writing teachers . . . . Ateacher with100


9/38


Moreover, studies indicated that even when writing teach

ers did comment more broadlyon the writing process and on or

ganization and style, their responses tended to be general and

abstract and to give only vague directions for improvement.40

Because teachers often address "content only in terms ofhow it

contributes to the elaboration of s t ructure or style,"41

many

teacher comments are so gener al t ha t the y could be rubber-

stamped from text to text.42

In fact, "teachers seem conditioned

not to engage with st ude nt writi ng in personal or polemical

ways" and toread "in ways antithetical to thereadi ng strategies

currently being explored by ma ny critical theorists."43

Whenteacher comments fail to engage with what a student actually

wrote, they divert the studen t's at tenti on away from the stu

dent's purposes in writing and focus att ent ion inst ead on the

teacher's purposes in commenting.44

This refusal to engage per

sonally with an actual text45

is unlikely to lead to the kind of

reader-writer responses that will encourage more reflective

thinking by the studentswho areproducing that text.46

papers to grade over theweekend, say the trad iti onal ists , cannot possibly respond effec

tively to each one as communicationand they are right." Connors, Mechanical Correct

ness, supra note 27, at 53 .Another explanation is th at writin g teachers have been

trained to read andinter pret li terary texts formeaning, butthey are nottrained to read

and respond to student work in the same way.See Sommers, Responding to Student

Writing, supra note 13, at 154.40 See Gere &Stevens, supra note34, at 100-01.41 Patricia Bizzell, The 4th of July and the 22nd ofDecember, 48 C.COMP.& COMM.

44, 44 (1997) [hereinafter Bizzell, The 4th ofJuly]. TheConnors andLunsford s tudy re

ported that only 24% of the rhetorical comments made anymove to argue or refute any

content points. Connors &Lunsford, Teachers' Rhetorical Comments, supra note 29, at

207.42 Sommers, Responding to Student Writing, supra note 13, at 149-54.43 Connors & Lunsford, Teachers' Rhetorical Comments, supra note 29, at 224-25

(citing Robert Schwegler, The Politics of Reading Student Papers, in THEPOLITICSOF

WRITING INSTRUCTION: POSTSECONDARY 205 (Richard Bullock &John Trimbur eds., 1991)

for the conclusion that "professional practices and assu mpti ons have encourag ed compo

sition instructors to suppress value-laden responses to student writing and ignore the

political dimensions of their reading and teaching practices").44 Sommers, Responding toStudent Writing, supra note 13, at 149-50.45

TheConnors andLunsford stu dy noted tha t a quarter of thepapers "had no per

sonal comments at all, a third ofthem had no real rhetorical responses, andonly 5% ofthem had lengthy, engaged comments of more than 100 words." Connors & Lunsford,

Teachers' Rhetorical Comments, supra note 29, at 214.46

Oneauth or characterize d thi s refusal to engage personally with student work as

an attempt to remain objective: "Theonlyway to confront a text objectively is tograde it

for superficial errors rather than to dwell within it , seeking it s meaning; issues of coher

ence and significance arise tacitly. If we limit our comments to what we can 'prove,'we

purchase our safety at theprice of triviality." SamWatson, Jr.,Polanyi and the Contexts

of Composing, in REINVENTING THE RHETORICAL TRADITION 19, 23 (Aviva Freedman & Ian


10/38

66 The Journal of the Legal Writing Institute [6:57

II. MODELS FOR READING AND RESPONSE

Unlike New Rhetoric models of the composing process, NewRhetoric models of teacher reading and response are based not

on what the experts do but instead on what the experts say. In

turn, what the experts say is based less on studies of the effec

tiveness of teacher reading and response47 and more on composi

tion theory and research, rhetorical models, and teaching philos

ophies and practices.48 As noted in the introduction, this article

has a similar basis in New Rhetoric theory and research and, in

particular, on a rhetorical model of the student-teacher transaction and a developmental model of teacher response.

First, the article relies on a rhetorical model to apply theNew Rhetoric theory that reading and writing are meaning-making processes and that these processes can benefit fromtransactions that generate response and reflection.49 This model,suggested by Janet Auten to illuminate the transactions between student and teacher, places the familiar rhetorical trian

gle for student writing next to a similar rhetorical triangle forteacher response.

50 The resulting image, shown in Figure 1,

graphically illustrates that student writing and teacher responseare located within different rhetorical contexts that have different rhetorical components.

Pringle eds., 1980).

47 As Erika Lindemann notes, "much research argues against commenting on stu

dents' papersever." LINDEMANN, A RHETORIC, supra note 25, at 228 (citing GEORGE HILL

OCKS JR., RESEARCH ON WRITTEN COMPOSITION: NEW DIRECTIONS FOR TEACHING 165 (1986)

for the conclusion that "[t]he results of all these studies strongly suggest that teacher

comment has little impact on student writing"). Lindemann nonetheless concludes that

teacher commenting is useful if the comments are focused and if the students have op

portunities to actively apply criteria for good writing to their own work in future revi

sions. Id. at 229. See also Auten, supra note 4, at 10 (sugge sting tha t "tea chers who

have good communication with their students and insert comments into an ongoing dia

logue about writing can make commentary an effective teaching tooD.

48 See Louise Wetherbee Phelps, Images of Student Writing: The Deep Structure of

Teacher Response, in WRITING AND RESPONSE, supra note 10, at 37 [hereinafter Phe lps ,Images of Student Writing] for a descript ion of th e typical arc from practi ce to the ory to

practice as teachers define and attempt to address problems in composition practice.

49 A transaction differs from an interaction because it is a "dynamic process" that

transforms all the elements in the transaction. See Louise M. Rosenblatt, Viewpoints:

Transaction Versus InteractionA Terminological Rescue Operation, 19 RES. IN TEACHING

ENG. 96, 100-01 (1985).

50 Auten, supra not e 4, at 4


11/38


studenttext

/ studenttext

student

writer

teacher

reader

teacher

writer

student!

reader

Figure 1: The triangle on the left illustrates the rhe-

torical context for student writing; the triangle on theright shows that the rhetorical context for teacher re-

sponse is different.

By demonstrating that the student text is written in one

rhetorical context and read in another and that the teacher'scomments are written in one context and read in another, the

model shows that each component of the rhetorical trianglethe

subject, the text, the reader, and the writerchanges as thestudent and teacher move from one context to the other. In moving from the student's to the teacher's rhetorical context, the

subject shifts from the content of the student text to the studenttext itself, the student writer becomes the student reader, the

teacher reader becomes the teacher writer, and the "text"changes from the student text to "a text about the audience's


12/38


13/38


14/38


sentences.60

At the next stage on the continuum, a much smaller groupof "relativistic" teachers wrote little or nothing in the margins of

the student text and appended casual, apparently unplanned,

responses to th e end of th e essays . For example , a rela tiv ist ic

teacher's comment on the same, very short, essay was as

follows:

Bobby, you certainly had a hard teacher. Did you get a

ticket? What happened when Mom came home? Did your

brother snitch on you? What happened to you? This kind ofthing eventually happens to all of us, but what did you do?

How angry was your mother? I'll bet she was hot when she

got home, or was she calm and very understanding because

she knows how important it is to be with someone you care

for. If you had to do it all over again, would you? Tell the

truth.61

These responders "seemed entirely unconcerned with giving the

students anything more than a casual reaction, as if this is theonly kind of response that can have any validity in a world

where judgment is always in the eye of the beholder."62

The rela

tivistic teachers emphasized the meaning or the intent of the

student over the text itself and provided no options for

revision.63

The final small group of teachers were classified as "reflec

tive" responders; they acted as representative readers, viewed

the student text as in-process, and suggested and preferred op

tions for revision. Unlike the dualistic and the relativistic re

sponses, their responses concerned not only the ideas in the pa

per but also the way they might be presented in the text. For

example, a reflective response to the same short essay follows:

The first thing that strikes me before I even read your

story is that it's very short. I don't really like to compare

one student's work with other students' work, but it's the

shortest one I've seen so far. So right away, I'm wondering

if it's short for a good reason, or is it short because you just

couldn't think of things to say. It's possible for a piece of

60 Id. at 347.61

Id. at 349.62 Id.63

Id. at 350-51.


15/38


writing that's very short to be very good. Poetry is that

way, certainly On the other hand, the more you put in, themore chances are that your reader is going to be able to get

into the story Stories generallyand this essay is a story

are fairly well detailed, and one of the reasons is that the

reader wants to experience the event in some way. If you

jus t keep it short and don't put in many details then we

never really get into your story at all. . . .

It has the potential to be a good story . . . Maybe you

could think more about the events that happened and

break them down into more, smaller and smaller events,and describe more, explain more. Maybe just some more de

tails so we understand more about what kind of person

your mother is . . . . Now, you could also develop tha t whole

[middle] part there, maybe with some dialogue . . . .64

The reflective responses placed more responsibility on the

wr it er "not jus t in the style or form of [the] response bu t in it s

focus on content." The comments were "simultaneously tentative

and goal-driven"; these teachers tossed the responsibility formaking decisions back to the writer, and they offered possibili

ties for a potentially better text.65

In tone, the reflective teachers

tended to "rhetorically sit next to the writer, collaborating, sug

gesting, guiding, modeling."66

In terms of the Auten model, the

dualistic teachers appeared most concerned with their own rhe

torical context, the relativistic teachers placed primary emphasis

on the student's rhetorical context, and the reflective teachers

seemed to use the transaction between the two contexts to open

up the potential for revision.67

Through a reflective rhetor ica l model of teacher response,

the legal writing teacher may more thoughtfully conduct her

reading and writing transactions with her students. In this

view, the teacher's reading and response are interruptions by

another reader-writer in the reflective conversation between the

student-as-reader and the student-as-writer that help produce a

better student text.68

The teacher's reading and response break

64This response was tape-recorded, not written. Id. at 351-52.

65 Id.

66 Id. at 353-54.

67 See id. at 333 ("a student's writing and a teacher's response to it represent a

transaction through which two separate epistemologies come together, interact, andgrow or change in the process").

68 Because the conversation is the student's, the teacher's interruptions should not

be the first or the last word. See Nancy Sommers, Between the Drafts, 43 C. COMP.&


16/38


into the conversation and further unsettle the idea of a "fin

ished" piece, by their very presence showing that reading andwr it in g are "always approx imate , a cha nge able, flexible, an d

above all interpretable medium of communication."69

III. APPLYING THE REFLECTIVE RHETORICAL MODEL TO TEACHER

READING AND WRITING

Every disruption we make in student reading and writing is

rhe tor ica l : our text-on-text carries considerable rhetorical

weight, bearing our intentions to affect student reading andwri tin g and our audience's fear of ju dg me nt s on thei r compe

tence or worth.70

As an expert reader and writer, the legal writ

ing teacher will be judged by his rhetorical effectiveness. That

being the case, he had better understand his context, his pur

pose, his subject, his role, and his audience. The following anal

ysis is suggested as a way to improve teacher reading and re

sp on se as well as to rel iev e some of th e fr us tr at io n an d

exhaustion from writing teachers' lives.71

A. Situating yourself in context: who are these people and what

am I doing in this classroom'?

Our teaching inevitably reflects our view of our students

and of "the job we are supposed to do" in the legal writing class

room. This view informs the decisions we make throughout the

writing course: from the structure of our syllabus, to the text

book we choose, to the assignments we create, to the responses

we make, to the physical arrangement of the classroom, to thebehaviors and performances we reward and censure. Everything

we say to our students "about writing is saturated with the

teacher's values, beliefs, and models of learning."72

COMM. 23, 30 (1992) (suggesting that students should be "given a turn in the conversation"); Jeffrey Sommers, The Writer's Memo: Collaboration, Response, and Development,in WRITING AND RESPONSE, supra note 10, at 179 [hereinafter Sommers, The Writer's

Memo] (suggesting that students should be given the "first say" about their work).69 Auten, supra note 4, at 13.70 Auten, supra note 4, at 8-10.71

See LeClercq, supra note 4, at 4 ("Instructors are . . . spending too much energyediting papers in the belief that more feedback produces better writers; in the process,we're killing ourselves and destroying both the teaching field and our students."); Connors & Lunsford, Teachers' Rhetorical Comments, supra note 29, at 214 ("[T]hese papersand comments revealed . . . a world of teaching writing . . .whose most obvious naturewas seen in the exhaustion on the parts of the teachers marking these papers.").

72 Anson, supra note 10, at 354.


17/38


Thus, even the teacher who does not adopt a theory will be

governed by a theory for teaching and learning legal readingand writing. Most often, by default, the teacher will teach as he

was t au gh t and for most of us, t ha t mea ns the cu rr en t-

traditional, result-oriented "product" view of writing.73

Novice

teacher s of writ ing unconsciously adopt the current- traditional

view and its corresponding dualistic, right or wrong, response

style.74

They focus primarily on grammar, usage, and punctua

tion, where correctness can be objectively judged. For the first

few years, this theory and response style will appear to work:

each year the teacher will be able to identify more and more errors.

75 Soon though, the teacher will begin to recognize that

marking all the errors and explaining all the rules and formulas

is not improving the students' writing; in fact, many errors will

begin to seem trivial, problems in the students' writing will be

seen beneath the surface, rules and formulas will improve the

presentation but not the thinking or the learning. At this stage,

the teacher must look to the theory and research of other disci

plines, and to his students, for a new approach to which he can

make a tentative commitment.76

College composition, the discipline to which most legal writ

ing teachers turn, offers a range of theory, research, and prac

tice perspectives. In theory, the current-traditional view has

been largely displaced by the New Rhetoric theory that reading

and writing are processes for the construction of meaning.77

The

resulting "process approach" has subdivided into at least two

schools, an inner-directed school ("cognitive process") and an

outer-directed school ("social construction").

78

The inner-directedschool is interested primarily in the composition and cognition

73 The "current-traditional paradigm" is marked by an "emphasis on the composed

product r at he r th an t he composing process; the an alysi s of discourse into words,

sentences, and paragraphs; the classification of discourse into description, narration, ex

position, and argument; the strong concern with usage (syntax, spelling, punctuation)

and with style (economy, clarity, emphasis)." Richard Young, Paradigms and Problems:

Needed Research in Rhetorical Invention, in RESEARCH INCOMPOSING 31 (1978).74 Most of us learned to comment the same way that we learned to teach: "by first

surviving and then imitating the responses of teachers to our own work." LINDEMANN, A

RHETORIC, supra note 25, at 225.75

See Anson, supra note 10, at 356-57; ELBOW, WRITING WIT H POWER, supra note

25 , at 224.76

See Anson, supra note 10, at 357-59.77

See, e.g., Hairston, supra note 8, at 85 (predicting a paradigm shift from cur ren t-

traditional theory to the process approach).78

See Patricia Bizzell, Cognition, Convention, and Certainty: What We Need to Know

About Writing, 3 PRE/TEXT 213, 214-15 (1982).


18/38


processes of individual write rs; theouter -directed school ana

lyzes theconventions ofpar ticular discourse communities.79

In addition to cur ren t-t radit ion al theory, cognitive process

theory, and social construction theory, college composition teach

ers have been categorized according towhich e lemen ts in the

composition process they view asmost important . T hus, for ex

ample, expressivists emphasize thewriter 's personal expression

through language; rhetoricians aremost interest ed inthe t rans

action between reader andwriter throu gh language; theepiste-

mic orknowledge-shaping perspective emphasizes the transac

tions between thewriter, language, andreality.80

These theoriesand perspectives arereflected in teaching practices th at ran ge

from theteacherless writing workshop, inwhich stud ent s rea d

and respond to each other's work,81

to th e teacher-managed

"substation in th ecult ura l network," small shops th at produce

particular kinds ofreaders and writers such aslite rary criticsor

scientists.82

Based onrecent scholarship, most legal writ ing commenta

tors have adopted thecognitive process or th esocial construc

tion theory.83 As a result, theremainder ofth is artic le willas-

79 See id. at 218.Lind a Flower, a leading cognitive process researcher, has sug

gested a "pedagogy ofliter ate action" tha t would bring toget her the social, cognitive,and

rhetorical strands andfocus on th ewriter "as an agent within a social and rhetorical

context." Linda Flower, Literate Action, in COMPOSITION INTH E TWEN TY-F IRS T CENTURY:

CRISIS ANDCHANGE 249(Lynn Z.Bloomet al.eds.,1996).80

See,e.g.,Kenn eth Dowst, The Epistemic Approach, in EIGHT APPROACHESTO

TEACHING COMPOSITION 63, 66-69 (Timothy R.Donovan &Ben W.McClelland eds.,1980);

Richard Fulkerson, Four Philosophies ofComposition, 30 C.COMP. &COMM. 343 (1979),reprinted in THE WRITING TEACHER'S SOURCEBOOK 3D ED.,supra note 20, at 3, 3-6.

8 1 See, e.g., PETER ELBOW, WRITING WITHOUT TEACHERS (1973); PETER ELBOW & PAT

BELANOFF, A COMMUNITY OFWRITERS: A WORKSHOP COURSE INWRITING (1989).82

See,e.g.,David Bartholomae, Writing with Teachers: A Conversation with PeterEl-

bow, 46 C. COMP. & COMM. 62, 66 (1995).83

See,e.g.,Philip C.Kissam, Thinking (byWriting) About Legal Writing, 40 VAND.

L. REV.135,151-70 (1987) (describing a critical writing process andproposing that criti

cal reading andwriting beextended to allparts ofthe lawschool curric ulum); Phe lps ,

The NewLegal Rhetoric, supra note 24,at 1094(describing the process approach asem

phasizing that writing is recursive, rhetorically based, andjudged byhowwell it com

municates thewriter's message andmeets thereader's needs); Joseph M.Williams,On

the Maturing of Legal Writers: TwoModels of Growth and Development, 1 J . LEGAL

WRITING 1, 9 (1991) (good thinking andgood writ ing are a "setofskills th at can be de

liberately taught anddeliberately learne d in a context that we candescribe as a 'com

munity of knowledge' or a 'community ofdiscourse' ");Bari R. Burke, Legal Writing

(Groups) at the University ofMontana: Professional Voice Lessons in a Communal Con

text, 52 MONT. L.REV.373, 397 (1991) (describing appro aches designed toteac h writin g

as a cognitive process aswell as a professional skill); Kearney &Beazley, supra note4 ,

at 888 (describing the process approach asoneth at allows thewriter tofocus on differ

ent tasks atdifferent s tag es of a writing process andoneth at allows theteacher to in-


19/38


sume that most legal writing teachers apply one orboth of those

theories tothe ir teaching practices.

B. Defining your overall purposes: whyare youreading and

writing?

The writing teacher's view of"the job he issupposed todo"

will determine which purpose ispredominant inhis reading and

response tostu dent work. Corresponding to th efour focusesof

the student's rhetorical triangle, a writing teacher may read to

analyze the subject (or the meaning ofthe text);hemay readtorespond as a reader, hemay read toimprove thewriter, andhe

may read tojudge thefeatures ofthe student text.84

The Auten

model indicates that theteacher who reads solely tojudgethe

text haspushed aside thestudent 's rhetor ical context: thestu

dent text has simply moved into the teacher's rhetorical triangle

to become theteacher's "subject." In contrast, theteache r who

reads to analyze thesubject, to respond as a reader, or to im

prove the writer remains within thestudent 's rhe torical context

as hereads.

Jus t asthey have more th an one purpose forreading, writ

ing teachers have more than one purpose forresponding to stu

dent papers, whether orallyor in writing.85

Their overall pur

pose may be summative, to sum up and let thewr it er know

where hiswriting stands at this moment, orformative, to help

tervene throughout theprocess); Rideout &Ramsfield, supra note4, at 51-61 (defining

the traditional view as "formalist," themore progressive view as the"process perspec

tive," and theemerg ing view as the"social per spective"); JoAnne Durako et al., From

Product toProcess: Evolution ofa Legal Writing Program, 58U. PITT.L.REV. 719 (1997)

(describing theprocess appro ach asdesigned to teach lifelong skills ada pta ble to new

writing situations).84 Alan Purves identified these four reasons forreading s tud ent work a nd eight cor

responding roles: torea d an d respond (as a common reader); torea d and judge th e t ext

(as a proofreader, editor, reviewer, or gatekeeper); to read andanalyze thetext (as a

critic orfrom an anthropological, linguistic, or psychological perspective); and to read

and improve the writer (as adiagnostician ortherapi st). Alan C. Purves, TheTeacher as

Reader: An Anatomy, 46 C.ENG. 259, 260-62 (1984). Purves also suggested that "agood

teacher would consciously adopt each ofthes e roles or a combination depending on the

stage atwhich thecomposition is read," thecontext inwhich thewriting is produced,

and the attitude ofthe students. Id.at 263-64.85 Allcomments onstude nt work are to some extent evaluat ive. The reasons for

evaluating student writing range from predicting students' future grades or placing

them in certai n classes to making diagnoses andguiding student s toimprovement to

measuring student growth and determining the effectiveness of awriting program. EVAL

UATING WRITING: DESCRIBING, MEASURING, JUDGING ix (Charles R. Cooper & Lee Odell

eds., 1977).


20/38

76 TheJournal of the Legal Writing Institute [6:57

the writer form and improve his writing in the future.86

The

New Rhetoric image of a writing project as always in progress

carries with it the assumption that the formative purpose is al

ways more important, at least until thegrading of a final paper.

With a summative purpose, the teacher moves completely into

his ownrhetorical context because only the student's textcan be

the focus of his comments. With a formative purpose, the

teacher's response can focus not only on the student text, but

also on the st udent' s subject, on the s tudent as wri ter (and

reader), and on the teacher as a reader (andwriter).

The Auten model thus helps teachers identify different ba

ses for their responses to student papers, bases that are located

in both the student's and the teacher's contexts. A teacher may

want to let the student know what strong points and shortcom

ings she sees in his arguments or explanat ions (feedback based

on analysis of the student's subject, content, or meaning); she

may want to let the wri ter know wha t she has determined are

his major strengths andweaknesses (feedback based on diagno

sis of the student writer and communicated to the studentreader); she maywant to let the student know how hispaper af

fected her (feedback based on the reactionsof the teacher reader

and communicated by theteacher writer); or she maywant to let

the student know how his paper measuredup to a set of textual

criteria (feedback based on the features of thestudent text).81

Teacher reading and writ ing purposes are related: the

reader whoreads to analyze will be more likely to give content-

based feedback; the teacher whoreads to improve will be morelikely to provide diagnostic feedback; thereader whoreads to re

spond will be more likely to give reader-based feedback; the

reader whoreads to judge will be more likely to give text-based

feedback. But a teacher canchoose to respond on a basis that is

different from thepurpose forwhich she read. That is, for exam

ple, theteacher whoreads to respond canchoose to base her re

sponse on tex tua l criteria, write r diagnosis, or content analys is

as well as reader response.

86SeeHorvath, supra note 32yat 207-08. Some comments seem to bewritten for

other reasons:"todamn the paper with faint praise orsnide remarks, toprove thatthe

teacher is asuperior error hunter, tovent frustration with students,tocondemnordisa

gree with thewriter's ideas, toconfuse the writer with cryptic correction symbols."LIN-DEMANN,ARHETORIC,supra note 25, at 225.

87SeeAuten, supra note4, at 11-12.


21/38


C. Narrowing your subject: what paper are you reading?

Like the teacher without a composition theory, the teacherwho does not have a clear view of her subjectthe paper thatshe is readingwill choose a subject by default. By default, shewill view the paper as a final product or as a paper that doesnot match up to the ideal final product. As a result, her comments may fail to recognize that "what one has to say about theprocess is different from what one has to say about theproduct."

88

The writing teacher who has examined her context and her

purposes in reading and responding will choose another view ofher subject. That is, rather than reading the text as complete initself, the teacher will choose to view the paper as part of awork in progress, as a sample excerpted from a portfolio of writing, or as part of a rhetorical situation or field of discourse.89Nomatter which view she takes, the teacher should read and respond not to the average text nor to an ideal text but to an actual text, a particular draft produced at a particular time by a

particular student.

90

A strong focus on subject and on actual text will reduce thedanger that teachers will make, and that students will misunderstand, an avalanche of unfocused comments.91 Instead of anavalanche, teacher comments should "be suited to the draft weare reading,"92 not only in the sense of where most of our students are in the writing process but also in the sense of where aparticular student is in his own writing process. The Auten

88 Sommers,Responding to Student Writing, supra note 13, at 154.

89 Louise Phelps writes that these views represent a continuum of development in

teacher perspectives on the student text. That is, in the evaluative or summative attitude, the text is read as complete in itself; in the formative or process attitude, the textis read as one of a set produced during a composing process; in the developmental attitude, the text is read as a sample excerpted from a portfolio of writing stimulated by thewriting class; and in the contextual attitude, the text is read as part of a rhetorical situation or field of discourse. Phelps,Images of Student Writing, supra note 48, at 49-59.

90Student-teacher ratios can make particularized reading and response seem impos

sible or unbearable: "I must read every piece to the end. I must say to every student

those magic words that every writer wants to hear: 'I couldn't put your writing down,'only I say it through clenched teeth." ELBOW, WRITING WITH POWER, supra note 25, at224. Commenting on only some things, rather than on everything, can save some of thetime needed to respond more particularly, but the only real solution is manageable student-teacher ratios.

91 Because students "see no hierarchy in our comments, . . . they spend energy 'fix

ing5 the little, easily repaired problems in their text, unsure of what to do with the

larger questions concerning content." Lape & Glenn,supra note 16, at 440.92

Sommers,Responding to Student Writing, supra note 13, at 155.


22/38


model suggests, for example, that early drafts can be read fordevelopment of meaning (analysis of the student's subject or content), with comments that raise questions or point to "breaks inlogic, disruptions in meaning, or missing information" as well ascomments that mark strong insights, well developed arguments,and thorough explanations.

93 In other drafts, the focus of read

ing can shift to the student writer, to the teacher reader, and tothe features of the student text. Thus, a particular draft can beread to diagnose the writer's problems and improve the writer'sskills by providing options for revision or to respond as a reader

by providing insight into areas of confusion or distraction or topoint to features of the text such as syntax, word choices, andusage errors.

The New Rhetoric image of writing as always in progressand its classroom corollaries support the teacher's focus on sub

ject and actual text. By requiring a series of ungraded draftsbefore a final paper is due, the writing teacher can assure thatmost early drafts will be so individual that she will be forced toconfront both the content and the structure of any particular pa

per. By asking students to set the agenda for teacher comments,both in "writer's memos"

94 and in individual or small group writ

ing conferences, the writing teacher can assure that she confronts both the particular paper and the particular writer'sconcerns.

D. Defining your role in reading and writing: who do youthink you are?

In addition to an overall view of context and purpose and aspecific view of her subject, the writing teacher takes on a particular role every time she reads and responds to a paper.

95 New

93 Id.

94 See Sommers,The Writer's Memo, supra note 69, at 179.

95 See Connors & Lunsford, Teachers' Rhetorical Comments, supra note 29, at 224

("[T]eachers invent not only a student writer but a responder every time they comment.").Composition theorists and teachers have suggested a number of roles for writingteacher response. Brooke Horvath describes the roles of "editor, average reader, andmore experienced writer" in addition to those of summative evaluator and motivator/friend. Horvath, supranote 32, at 212-13. Elbow and Belanoff suggest that "[a] 'coach' or'editor' is a nice image for the writing teacher. For a coach or editor is an ally ratherthan an adversary. A coach may be tough on you, but she is not trying to be the enemy;she's trying to help you beat the real 'enemy' . . . ." ELBOW & BELANOFF, supra note 81,at 271. Erika Lindemann links the roles that writing teachers take for themselves totheir theory of writing instruction. That is, "writing as a product" teachers may viewthemselves as "experts" or "critics." "Writing as a process" teachers may view themselves


23/38


Rhetoric research suggests at a min imum that the writing

teacher should consciously change herrole as the student moves

through the process. Thus, thewrit ing teache r should read and

write differently depending on whether the student is engaged

in (1)generat ing though t (prewriting, invention, planning, draft

ing); (2)hav ing second though ts (monitoring, responding, reflecting, revising); or (3)moving toward rhetorical effectiveness (au

dience analysis, editing, proofreading).96

Complicating these

changing roles is a necessary multiplicity: the teacher must be

reader andwriter and different kinds of readers andwriters at

the same time.Thus, for example, writing teachers often read as diagnosti

cians no matter where a particular student is located within his

writing process; in this role, the writing teacher reads to im

prove the writer but first reads for herself, discusses the paper

with herself, explains its problems and strengths, and plans a

course ofinstruction.97

When the student is gene rati ng thought,

the teacher's most appropriate reading rolemay be as a coach, a

reader who is an expert in the field and who can provide moti

vation to keep going as well as ideas and techniques to keepthinking. When the s tuden t is having second thoughts, the

teacher's most appropriate reading rolemay be as a more exper

ienced fellow writer, a readerwho can tap into her own writing

experiences to provide guidance about what she as a writer

would do next.98

When the student is moving toward effective

as "more experienced, confident" writers. "Writing as a system" teachers mayview t hem

selves as "facilitators" whose role is to "empower writers to membership" in a discourse

community. Erika Lindemann, Three Views ofEnglish 101,57 C.E N G .287,291, 293,297

(1995) [hereinafter Lindemann, Three Views]. Janet Auten ties the kinds of comments

that writing teachers make to th ree different roles they adopt : in their role as readers,

their comments us e"I";in their role as coaches, their comments use "you"; and in their

role as editors, their comments use "it" to identify writing problems in the text. SeeAu

ten, supra note 4, at 11-12.96

For example, Donald M urra y describes a progression in his wri ti ng conference

roles as his students move through a project. In prewriting conferences, he helps stu

dents generate thoughts. As the ir drafts develop, he becomes a "bit removed, a fellow

writer whoshares his ownwriting problems, his ownsearch for meaning andform."Fi

nally, he becomes "more the reader, more interested in the language, in clarity. I havebegun to detach myself from thewriter and from the piece ofwriting . . . ."Donald M.

Murray, TheListening Eye:Reflections on the Writing Conference, 41 C.ENG.13 (1979),

reprinted in THEWRIT ING TEAC HER'S SOURCEBOOK 3D ED.,supra note 20, at 96, 100.97

See LINDEMANN, A RHETORIC, supra note 25, at 224.98

In the role of"more experienced wr iter , the instructor offers techniques, tricks of

the trade, that the student can add to her repertoire and elaborates upon why certain

features of a textfigures used, words chosen, examples employedworked as well as

they did."Horvath, supra note32, at 212-13.


24/38


communication to a reader, the teacher's most appropriate read

ing role may be that of the average reader in the field, the kindof reader who looks to the writer for necessary information butoverlooks technical errors that do not affect meaning," or perhaps that of critical expert in a particular discourse community,the kind of reader who can help the writer test his final analysis and turn out a professional final piece.

100

Moving from the student's context to the teacher's, theteacher-reader then decides what writing role to play. Afterchoosing to play a particular writing role, the writing teacher

must establish her authority to speak in that role.101

Establishing authority to speak in a particular role is not the same thingas establishing the teacher as the expert in the classroom.Rather, it means establishing the teacher as a credible and persuasive coach, more experienced fellow writer, average legalreader, or critical expert. Establishing credibility requires thewriting teacher to acquire (or to borrow) and then to share herexperiences in those roles.

102 Acquiring persuasiveness requires

the writing teacher to show that she shares important valueswith her students, thus allowing her to "be better able to per-

99 The role of average reader serves to guard against "excessive response and an un

reasonable preoccupation with relative minutia." Id. at 213. As an avera ge reader , "the

evaluator, though a captured audience, tries to respond as might a real-world reader,

consequ ently not maki ng overmuch of defensible fragme nts, slightly inexact word

choices, contractions, split infinitives, and other slips of mind or pen that would not

bother him if they were noticed elsewhere." Id.

IOO This critical editor is the kind you would like to have just before publication of a

final piece, the editor who "addresses all clear-cut errors and deficiencies." Id.101 Peter Elbow suggests that writing teachers acknowledge that their roles conflict

and tell students when their roles have changed from "Now I'm being a tough-minded

gatekeeper, standing up for high critical standards in my loyalty to what I teach," to

"Now my attention is wholeheartedly on trying to be your ally and to help you learn,

and I am not worrying about the purity of standards or grades or the need of society or

institutions." Peter Elbow, Embracing Contraries in the Teaching Process, 45 C. ENG. 327

(1983), reprinted in THE WRITING TEACHER'S SOURCEBOOK 3D ED., supra note 20, at 65, 75.102 Under social construction theory, for example, the evaluator should be a profes

sional in the particular discourse community. See Lindemann, Three Views, supra note

95 , at 298-99. According to one study, th e aver age ra nge of practice exp erience for legal

writing professors is four to seven years. See Ramsfield, supra note 3, at 18 & n. 130.

For those whose experience is less extensive or no longer current, research into how le

gal experts read and write can fill some of the gaps. See, e.g, Jam es F. Stra tman , Teach

ing Lawyers to Revise for the Real World: A Role for Reader Protocols, 1 J. LEGAL WRIT

ING 35 (1991). In addition, the class itself can become a legal writing community, one

that develops its own guide to how an average legal reader would read a memo or brief.

This method may help "students internalize and apply criteria for effective writing much

more quickly than teacher-controlled assessments do, and it reinforces the principle that

students really are writing for . . . the discourse community which will eventually judge

their work." Lindemann, Three Views, supra note 95, at 298-99.


25/38

2000] Reflective RhetoricalModel 81

suade the audience to consider . . . her point of view on morecontroversial matters as well."

103 As in a conversation, where the

participants often take time at the beginning to establish common ground, the teacher can establish common ground for heroral and written comments before she makes them. She can, forexample, gather information from her students about their reading and writing knowledge and experience as well as about thevalues they place on reading and writing.104 She can, for example, let students know more about her own reading and writingknowledge, experience, and values.

105

E. Reaching your audience: For whom are you writing?

Writer-based prose describes what the writer has done,what the writer has learned, what the writer knows, or how thewriter feels.

106 Although helpful to the writer, such prose rarely

presents information that the reader needs or wants. Yet,"writer-based response" is said to be pervasive among teachers:"[t]he judgments expressed in writing by teachers often seemed

to come out of some privately held set of ideals about what goodwriting should look like, norms that students may not havebeen taught but were certainly expected to know."107

Situated now in the teacher's rhetorical context, theteacher-writer who wants to meet the needs of the studentreader should analyze her audience. Just as she expects her students to analyze their potential audiences, she needs to knowmore about her actual audience's knowledge, needs, beliefs, andvalues.

108 Because the writing teacher's audience is actual and

103 Bizzell, The 4th of July, supra note 41 , at 45 (advocating the us e of broader cul

tural knowledge not only to increase the rhetorician's credibility but also to influence the

rhetorician).

104 Writing histories can be obtained through journal assignments, writing confer

ences, and classroom discussions. In addition to information about writing backgrounds,

it may be helpful to gain some knowledge of the cultural backgrounds of students.105 Believing that "effective commentary depends on a mutually understood context,"

Auten advocates that teachers share reader guidelines with their students, explaining

th e comment ing roles the y play and the kinds and the purp ose of th e comment s t hey

make. See Auten, supra not e 4, at 11-12.106

See Linda Flower, Writer-Based Prose: A Cognitive Basis for Problems in Writing,

41 C. ENG. 19 (1979).107 Connors & Lunsford, Teachers' Rhetorical Comments, supra not e 29, at 218.

Moreover, teacher commentary "mixes modes and purposes in a haphazard way which

resembles the prose of basic writers rather than that of well-trained rhetoricians." Au

ten, supra note 4, at 3.108 Analysis of a legal writing student audience should start with the results of the

Enquist study of student reaction to legal writing teachers' feedback. The study reached


26/38

82 The Journal oftheLegal Writing Institute [6:57

present, instead of potential and absent, the task should be eas

ier than the task we assign students. The writing teacher converses with his audience, not only in the classroom and in writing conferences, but also in written exchanges. Both orally and

in writing, the writing teacher can ask questions of his audienceand can respond to questions from the audience. Thus, for ex

ample, by requiring students to keep journals or to hand inwriter's memos with assignments, the writing teacher can ob

tain a history of a current draft, a list of specific questions orproblems with a current draft, a description of the writer's in

tended audience and purpose.109

As with any writing, the teacher-writer's purpose will govern not only the substance of his message but also its expression. The tone of teacher commentary often reflects only the limited purpose of judging a final product: many teachers appear toconstruct "a general and objective judge . . . speak[ing] to thestudent from empyrean heights, delivering judgments in an apparently disinterested way."110 Here again, role should affect

tone. When the teacher's role is to act as coach, her tone shouldmotivate by being encouraging and empathetic. When theteacher's role is to act as more experienced fellow writer, histone should be helpful, friendly, and informed. When theteacher's role is to act as average legal reader or critical expert,her tone may become more removed, professional, andpractical.111

these conclusions: (1) students want a summarizing end comment; (2) students want in-

depth explanations or examples; (3) students want positive feedback; (4) students do not

want to be overwhelmed by too many comments; (5) students want comments to con

tinue throughout the paper; (6) students want comments that identify a problem and

suggest a solution or offer a rationale for a solution rather than label or coded com

ments; (7) students want comments phrased as questions to be the right kinds of ques

tions.SeeEnquist, supra note 4, at 155.109

See, e.g.,Sommers,The Writer's Memo, supra note 69, at 177-79. Sommers notes

that specific questions from student to teacher "virtually require a collaborative response

from the teacher."Id. at 179.110

Connors & Lunsford, Teachers' Rhetorical Comments, supra note 29, at 224.111

The students in the Enquist study used the following adjectives to describe die

tone of the teacher critiques: encouraging, empathetic, friendly, professional, neutral, ob

jective, very distant, discouraging, frustrating, condescending, sarcastic, harsh. See En

quist, supra note 4, at 170-73. The study noted that the instructor whose comments

were ranked least useful by the students also was consistently assessed as having a pro

fessional or negatively professional (neutral, objective, very distant or discouraging) tone.

Id.


27/38


F. Using the right kind offeedback: What effect do you want to

have on this paper at this time'?

Having settled on a subject and a role for read ing withi n

the student's rhetorical context, thewrit ing teacher must decide

more specifically on his purpose and role for responding within

his ownrhe tor ica l context. Those decisions will govern his over

all approach and the basis for his feedback as well as its form,

its medium, its mode, and its tone. First, the teacher must de

cide whether the feedback will be primarily summative, a sum

mary that evaluates the current paper, or primarily formative, a

response that helps form the next paper. Second, the teacher

must decide whether his feedback will be based primarily on

content analysis, writer diagnosis, reader response, or textual

criteria.112

Third, the teacher mu st decide whe the r the feedback should

be provided in writing or in person or both; if in writing, he

must decide whether to comment primarily in the margins or

primarily in a summary or global comment at the end. As for

the choice between written and oral comments, the relative permanence ofwritt en comments (and of tape recordings), convey

ing more importance than an offhand remark, canarguefor and

against their use in a particular response. Thus, for example,

feedback based on reader response or content analysis may be

better provided in person: the responses are immediate and can

be explained, misinterpretations can be corrected, and differ

ences can be negotiated.113

As for the choice between marginal comments and summary

end comments, theAuten rhetorica l model, theAnson reflective

teacher, and theConnors andLunsford study support the use of

appropriate marginal comments, in particular when the feed

back is based on content analysis or reader response. Margi nal

comments can effectively point to places where the reader was

112 Peter Elbow and others have divided feedback onwriting into twomore generalcategories: criterion-based and reader-based. See ELBOW, WRITING WITH POWER, supra

note25, at240-51. If a long list of very specific questions isused, criterion-based feedback is especially good for revising, Elbow says. Reader-based feedback, on the otherhand, provides "themain thing youneed to improve your writing [over the long run]:the experience ofwhat it felt like forreaders as they were reading your words."Id.Elbow provides examples ofcriterion-based and reader-based questions.Id.at252-63.

113 A study comparing teacher comments with peer responses found tha t peerreader-writers have "theadvantage ofimmediacy in time and space"; they can explainface toface andimmediately; they can explain faster and more completely by speakingthan theycan inwriting.SeeGere&Stevens, supra note34, at 85.


28/38

84 The JournaloftheLegal Writing Institute [6:57

distracted or confused, where more support was needed, orwhere good ideas or arguments were raised.

114 As the Auten

model indicates, such marginal comments may "pryopen"thestudent text bychallenging itscompleteness andasking forclarification, amplification, and investigation.

115 Similarly, although

the Anson reflective teachersdid not write many marginal comments, they did use such comments to raise questions that"seemed geared toward rethinking certain decisions"or topraisethe writer for an especially effective choice.116As the Connorsand Lunsford study noted, marginal comments can be effective

in calling attention to many different levels of rhetoricalconcern.117

Finally, the teacher must decide what commenting modeand what tone best fits his specific purpose.

118 Among the com-

114Themost consistent finding from theEnquist study was that students want sum

maryendcomments.SeeEnquist, supra note4, at 155-56. This findingis notsurprisinggiven my assumption that most students believe that the primary purpose for teachercommentaryis toprovidea summative evaluation,to let thestudent know wherehis pa

per stands andwhyhereceivedthegradeheearned.ButwhenI usesummaryendcommentsonworksinprogress,I find that theyare frequently too generalortoo abstracttohelp students form the next draft. By endorsing margin comments for reader responseand content analysis,I do notmean to endorse interlinear editing or writing "awk"or"subject-verb agreement?"in themargins. Instead, Imean toendorsethewritingofmargin responses suchas, "Howdoes this point relate to thepoint youmadeon the lastpage about duty?"; "This argument developsthecontrasts between your caseand Smith.Haveyouconsidered thesimilarities too?"; "Canyoutake this argument farther?For example,didBonniesay shewanted tohurt Clyde?"; "How would it change your analysisif you decided that thecourt reallydidmean foreseeable in thesense youhave justdescribed?"I also endorse pulling the margin comments together into a fewoverarching

themes, especially when thestudenthasgotten to thepointofputting together a reviseddraft. Cf.Fajans &Falk, Comments Worth Making, supra note4, at366-67.

115Auten, supra note 4, at 8-9.

116Anson, supra note 10, at353-54.

117 Teacherswhomake particularized commentsonpaperscancall"allsortsofrhe

torical elementsnot just very large-scale onesto students' attention." Connors&Lunsford, Teachers' Rhetorical Comments, supra note29, at 460.

us Writing teachersuse anarrayofcommenting modes that mayinclude thefollowing: (1)correcting, (2)emoting, (3)describing, (4) suggesting, (5)questioning, (6) reminding,and (7)assigning. Elaine O.Lees,Evaluating Student Writing, 30 C.COMP.&COMM. 370 (1979), reprinted in THE WRITING TEACHER'S SOURCEBOOK 263 (Gary Tate et

al . eds., 2d ed.1988). Many other classifications of comments have been suggested.See,e.g, Fajans &Falk, Comments Worth Making, supra note4, at 347-48 (distinguishingfour basic kinds of feedback: exploratory, descriptive, prescriptive, andjudgmental) (citing Kristen R.Woolever &Brook K. Baker, Diagnosing Legal Writing Problems: Theoretical andPractical Perspectives for Giving Feedback, presented at the Legal WritingInstitute Conference (Ann Arbor, July 1990)).Theauthors suggest that exploratory feedback, helping the writer think through her ideas, should beused in the early stagesofthe writing process; descriptive feedback, describing the reader's reactionto thewriting,and prescriptive feedback, diagnosing problems andsuggesting solutions, in themiddle


29/38


menting modes, "correcting" the student's text and "emoting"

about the teacher-reader's judgment of it best suit the summative purpose of evaluating the current draft rather than theformative purpose of improving the next draft. These kinds oftext-based comments place the burden of revision on theteacher, who often has completed the student's task while judging and correcting the paper. Thus, these commenting modes areappropriate, if at all, when the teacher is commenting on a finished or almost-finished product.

The commenting mode of "describing" falls in the middle,

where the descriptions may be summative and based on writerdiagnosis (what went wrong, why the teacher thinks so) or formative and based on reader response (here's where I got confused,maybe the reason was). Most appropriate to a formative purpose, when the teacher is commenting on an early or middledraft, are the commenting modes of "suggesting," "questioning,"

119 "reminding," and "assigning." The first three shift the

burden of revision to the student while the last mode "providesa way to discover how much of that burden the student hastaken."120

IV. TRANSLATING THEORY INTO PRACTICE

The following examples sketch a sequence of teacher commentary, arranged as though every student progresses steadily,in defined stages, through the writing of a paper. Even thoughNew Rhetoric research casts doubt on the certainty or theuniversality of such a progression, it is a convenient way to talkabout student writing as long as we are constantly reminded byour own writing that writing does not often happen that way.Even though I am more interested in ideas at the beginning of a

stages;and judgmental feedback, evaluating the quality of the work, near the end of thewriting project.

119 Legal writing teachers have suggested that "questioning" deserves special attention in commenting on the texts of legal writing students.See, e.g.,Kearney & Beazley,

supra note 4, at 901 (questions treat the paper as a draft to be revised and place the responsibility for learning on the student). The difficulty is distinguishing between questions which "challenge students to think harder and deeper and write better, and whichones intimidate, frustrate, and antagonize? . . . [Wlhich kinds of comments promote lasting learning and which ones simply help the student fix a problem in a given assignment?"Enquist, supra note 4, at 190-91.

120 Id. at 265-66. "Much emoting, correcting, and describing now seems to me to fall

into the same category as Levi's pressing; not exactly wrong but useless. . . . Our covering students' papers with suggestions and corrections is not the same thing as leadingstudents to revise for themselves, and . . . the difference between them is crucial." Id.


30/38


writing project, more interested in how to fit those ideas into a

structure a little later, more interested in putting the structuredideas into the right words a little later, and more interested inreaching my audience at the end, I am interested as a writer inall these things all the time, and so I am going to read my students' papers with all these things in mind.121 The rough progression does, however, remind me to shift my focus for readingand response from the subject to the writer to the reader to thetext and not to emphasize all four all the time.

A. Reading the "generating thought" draft as a writing coach

The first example is the teacher who reads an early "generating thought" draft and decides to respond as a writing coach.The focus in reading is on the writer's initial thoughts about thesubject. Because the early draft stage is much too early to sumup, the teacher's feedback must be formative, and because fewtext-based or content-based criteria are appropriate for judgingthe generation of thought, the feedback should be based onreader response or on writer diagnosis. Most often, after readingsuch a draft, the teacher will decide that the writer did not gofar enough in invention or creation of arguments or support forarguments. Combined with description of what she "read" in thedraft, the teacher should use the commenting modes of suggesting additional invention techniques, questioning whether related ideas might be worthwhile, reminding about invention activities discussed in class, and assigning a specific technique or

further exploration of a particular idea. To fit her writing coachrole, the tone of these comments should be encouraging andempathetic.

Reader response: Reader-based feedback should come primarily in the margins or in person so that the reader can pointspecifically to sections of the draft where ideas are missing orwhere good ideas need more development. Reader-based feedback begins with description of the reader's response and moveson to suggest, question, remind, and assign:

121 See Lynn Quitman Troyka,Closeness to Text: A Delineation of Reading Processes

as They Affect Composing, in ONLY CONNECT, supra note 27, at 187, 194-95. Noting thatthe writer must be able to read her own text from a great distance to determine her"meaning"; at a middle range for form, organization, and style; and at a close range forwords and letters, Troyka points out that operating simultaneously at different ranges isnot the same as doing first one thing and then another. Id.


31/38


When I read thi s pa ra grap h, I felt like you ha d identified

the major argument about John's negligence, but that there

must be more to it. Perhaps it seemed obvious to you, but

additional arguments may flow from your main idea or may

be necessary to support it. For example, did you think

about his prior conduct? What about his purpose in driving

too fast? What about the road conditions?

The last section showed close reading of the cases, careful

attention to the facts, and good insight in creating argu

ments. At this point, however, I got the impression that youjus t ran out of time and energy. That's very natural when

you've done a good job with part of a writing project. The

passage of time will help, but another thing you might do

to get back on track is to go back to your research. See

whether re-reading the secondary authorities, for example,

helps you come up with some ideas on how to develop this

section as well as you did the last section.

I've gotten this far in your draft, and I really believe that

the cases are very similar. But so far, I have read only

about

The legal writing

Documents

Transcript of The legal writing