Bigelow: A Faculty Perspective
First Year Legal Research and Writing Program: A Faculty Perspective
At the end of one year of law school, students take summer jobs at which they are expected to do the work of lawyers. They must research the law, prepare the documents, and draft the memoranda that are the life-blood of legal practice. What is most remarkable about the students who return to the Law School at the start of the second year is not their awareness of how much more they have to learn (although virtually all the substantive areas of modern law practice from evidence to tax have yet to be taken), but rather how well they were able to function as lawyers. Two characteristics of the first-year curriculum explain how those who started law school only nine months before can acquire a basic competence so quickly. The core courses of the first year, such as torts, contracts, and civil procedure, impart basic skills. After them, one can "think like a lawyer" and understand the difference between good legal arguments and bad ones, which is not the same as the difference between good and bad arguments elsewhere. As important, however, is the training one receives in research and writing.
Legal research and legal writing are different from anything else that one has encountered previously. In other disciplines, work must be "original" in the modern sense of the word. The aspiration is to produce work that seems novel and different. In law, work must be "original" in the eighteenth century meaning of the word. Good arguments are the ones that are connected with what has gone on before, the ones that return to the origins. You never want to tell a judge that you are asking her to do something that has never been done before. You want to tell her that the relief that you are asking for, as strange as it may appear, is no different from what she and other judges have been granting for centuries. In other fields, the rewards are in showing that easy problems are hard; in law, the trick is in showing that hard problems are easy.
At the Law School, students have learned how to master the art of finding precedent and crafting legal arguments in a program that has been in place for over half a century. The Bigelow Program (named after the dean of the Law School who founded it in the 1930s) is premised on the idea that the art of legal writing is too important to be left to student-teachers or as an appendage to one of the substantive first-year courses. At Chicago, legal writing is taught by six full-time faculty members called Bigelow Teaching Fellows. The Bigelow Fellows are often young lawyers who are making the transition from private practice to law teaching. Others want to punctuate a career as a practicing lawyer with a year in the academy. Some of the most successful Bigelow Fellows have been lawyers from other common law jurisdictions such as Great Britain who are drawn by the chance to spend a year at the Law School.
Legal writing consumes a great deal of time in the first year. Ten percent of the course credits in the first year is assigned to the work in the Bigelow Program, and it is graded just like any other course in the Law School. The first two assignments in the fall are closed memoranda in which students are given the law and asked to apply it. This initial stage of the program is designed to develop legal analysis and legal writing skills. In the Winter Quarter, students are introduced to legal research through several presentations by law librarians. Each session is followed by a "treasure hunt," in which students are asked to find legal materials. Following these exercises is the Open Memorandum. This rite of passage is the first time that students have to find the relevant law from among the half million volumes in the D'Angelo Law Library and on-line resources and apply it to a hypothetical fact pattern.
The Spring Quarter is largely consumed with a moot court exercise. Students are given a record of a case (usually based on a real one) and asked to write an appellate brief and argue it before a panel of judges that typically includes Law School faculty, practicing lawyers, and judges. As is typical of actual appellate arguments, the student's presentation is punctuated with questions from the panel. The task one faces is not so much covering what one has written in the brief, but in understanding the weaknesses the judges see in one's side and trying to explain why these do not matter or at least should not be dispositive. During this process, members of the clinical faculty make presentations on oral and written advocacy. Prior to oral arguments, a Circuit Court Judge will typically give a presentation on effective advocacy from a judge's perspective. The first year moot court exercise both assimilates the previous exercises and looks forward to future experiences. These include the challenges that will be posed in summer jobs, the Hinton Moot Court competition in the second and third year, as well as appellate arguments before the United States Court of Appeals for the Seventh Circuit and other courts that students make while representing indigent clients in the Mandel Legal Aid Clinic.
Most students write well when they start at the Law School. At the end of the first year, they are invariably skilled legal writers. One question, of course, is whether they are also better writers as a general matter. They most likely are. The virtues of clarity and simplicity that are at such a premium in legal writing should be valued elsewhere as well. After all, many splendid writers (including Goethe, Flaubert, and Wallace Stevens) were trained in the law (although not at Chicago).
Professor Douglas Baird