Borrowing Portfolios from Composition Teachers
An Annotated Bibliography by Martha McCabe
Introduction
Legal writing professors teach smart adult learners
in a highly competitive, mass educational setting. Despite
data suggesting that career opportunities after graduation correlate
more strongly with the students' choice of law schools than with
any other variable (ABA Report 226), students and professors
often take as an article of faith that fractional differences in grade point averages will determine students' professional
prospects. As a result, legal writing teachers feel great pressure
to devise ways to fairly assess and fairly grade student work.
Even legal writing teachers, though ourselves often
former practicing attorneys, are not of one mind about what makes
a student paper, or an entire semester's work, successful.
What, besides personal preference, determines whether we grade
product or process? Do we grade throughout the Fall semester,
or only at its end? Do we insist that students eliminate all
surface errors and citation flaws, grading accordingly? Can we
reconcile institutionally-prescribed grade distribution with the
mission, arguably most powerful in tax-supported law schools,
of eliciting every students' best work? Do we focus so much on
text that, as Haswell writes, students disappear? Do we know
why we do what we do in the name of assessing students'
writing? If we are dissatisfied, does research or theory point
us to a better way? Johansen is one of the few legal writing
professors whose work offers practical application with theoretical
grounding; from Composition theory and practice, he adopts student
portfolios to the teaching of legal writing.
This makes sense, as many law students have Freshman
Composition-type writing issues. Many law students "placed
out" of Freshman Composition, completed the course in a community
college possibly, though not necessarily, less rigorous than a
four-year institution, or are returning students with Freshman
Comp many years distant. The writing issues many law students
matriculate with, therefore, are identical to the ones Composition
teachers would have addressed four years earlier. Now, however,
students are likely to find their writing challenges magnified
by the pressure the dense content of the law puts on their writing
at the conceptual, organizational, paragraph, sentence and word
levels. As a result, despite thinking we will be teaching student
to write "the law," legal writing professors, surely
effective writers ourselves, but almost entirely innocent of training
in Composition theory and practice, also end up spending a great
deal of time teaching things that look a lot like Freshman Comp:
thesis statement, effective paragraph, transitions, sentence structure,
active/passive voice. More important, our students are often
almost entirely unconscious of themselves as writers; they may
"solve" a paper we assign, but without self-reflection,
will they be able to "write their way out of comers"
in law practice? Accepting our students as they come to us, it
makes sense for legal writing professors to see if we can borrow
effective teaching approaches from our colleagues in Composition,
for many of whom portfolios seem successful.
Section I surveys recent
legal writing literature in search of informed authority about
assessment theory and practice. Section II lists material
useful in answering the question "What teaching/learning
issues do Composition teachers address by using portfolios, and
how is that working out?"
Johansen, Steven J. "'What Were You Thinking?':
Using Annotated Portfolios to Improve Student Assessment."
Legal Writing: The Journal of the Legal Writing Institute.
4 (1998): 123-147
This highly useful paper illustrates "how portfolios
can improve student assessment in law school writing courses."
It is as comprehensive and thoughtful as this introductory phrase
suggests, borrowing heavily from Composition theory. The article
reviews general understandings about the purpose of assessment,
locates assessment as a tool for learning and should therefore
be interactive, encouraging student participation, and explores
in some detail the use of portfolios for assessing student writing.
Usefully, it distinguishes assessment from grading, the purpose
of which is to rank students relative to others. The author notes
that using portfolios improves the quality of assessment by making
teachers define the objectives of each assignment clearly ahead
of time. He uses a combination of the "best work" portfolio
and the "work in progress" portfolio. His students
must also include a general letter of introduction, explaining
the student's goals for the course; the drafts and final versions
of the selected projects; and overall assessment of the student's
performance in the course, including a letter grade. He also
asks students to annotate their work, narrating the choices and
changes they make from draft to final version. This article offers
a rich lode for legal writing teachers to mine, and tells us not
only "what work," but why it works.
Levine, Jan M. "'You Can't Please Everyone,
So You'd Better Please Yourself: Directing(Or Teaching In) A First-Year
Legal Writing Program." Valparaiso University Law Review
29 (1995): 611-639.
>Levine identifies grading as the most critical pressure
point in first year legal writing courses, since it gives students
grades throughout the Fall semester, thus becoming the "bearer
of bad news" about the rigor of law school grading compared
to its college counterpart. Since all other first semester courses
give one final exam in December, many bright students get the
first "bad" grades of their lives in legal writing courses,
mid-way through the first semester, perhaps never recovering their
pre-grade enthusiasm and willingness to learn the genre(s). Levine
says that even weighted grading, which reserves graded assignments
for late in the semester, fails to address this problem, since
even under that approach, students still get legal writing grades
weeks before they take substantive law course final examinations.
She herself addresses this problem by grading only the final
project, while commenting extensively on earlier work. Given
the competing demands on student time exerted by all the
other graded courses, she dismisses pass-fail programs as doomed
to fail.
Levine focuses her teaching on the process and context
of legal writing rather than on formalistic concerns, and assigns
multiple supervised re-writes of ungraded drafts. A footnoted
survey informs us that sample of experienced legal writing teachers
put written comments on student papers at the top of their list
of ten key activities for legal writing teachers. While rich
in practical observations about the interrelationships among teacher
status, program design and staffing issues, the article appears
to lack theoretical grounding and, despite nearly one hundred
footnotes, cites no sources in the literature of composition research.
Further, its approach seems to be predominantly oriented to teacher
concerns, rather than being student-centered, which undercuts
its otherwise pragmatic and evidently hard-won observations.
It makes them somewhat one-sided, scanting other elements of what
seems like a three-sided enterprise with students, teachers
and skills/texts bounding the triangle.
American Bar Association, Section of Legal Education
and Admissions to the Bar. Legal Education and Professional
Development-An Educational Continuum: Report of the Task Force
on Law Schools and the Profession: Narrowing the Gap. Chicago:
American Bar Association, 1992.
Often referred to as the MacCrate Report, after its
Chairperson Robert MacCrate, Esq., this is the latest in a long
series of roughly decennial overviews of the ways in which law
schools do or do not prepare students to practice law. The MacCrate
(here ABA) Report gained attention because of its relative
thoroughness and because it was published by the ABA, the accrediting
body for all 176 accredited law schools in the U.S. By
its own admission, the Report diverged from previous analyses
of law school writing curriculum, because it differentiates little
between written and oral forms of communication.
The ABA defends this enigmatic position on the grounds
that "at the conceptual level at which the skill of communication
has been analyzed, the abilities, concepts, and processes required
for effective communication are essentially the same, regardless
of whether a communication is in oral or written form." (I
76). A legal writing professor, explaining paragraph or sentence
structure or verbs or inappropriate uses of the passive voice
to a bright, highly verbal adult almost totally estranged from
her native language in written form, will find that sweeping conclusion
risibly incomplete. It also contradicts decades of Composition
research, which makes claims for written language teaching that,
while acknowledging the common ground of language acquisition
generally, has built up a considerable understanding of issues
specific to written, as distinct from spoken, language learning.
The Report summarizes what it calls the "fundamental skills" of "Communication," including:
Remarkably, despite the fact that virtually all 176
accredited law schools now run required first year legal writing
programs, and that so many teachers of substantive law as well
as writing courses decry students' general lack of writing skills
that comments repeat themselves for want of originality, the "Report
focuses not at all on the acquisition of the writing skills necessary
to permit students to develop the first six skill sets listed
here, or to draft any of the complex documents concluding this
bulleted list. Unlike law school deans and other institutional
spokespeople who at once decried the "Report as too
prescriptive, possibly to the extent of causing non-compliant
institutions accreditation problems (a threat that does not seem
to have materialized), legal writing professors will likely find
it-unlike a popular brand of well-advertised mints-curiously weak.
If we wish to know how to assess our students' legal writing
skills, we will not learn it from the ABA Report, which
seems to rest on the "we know good legal writing when we
see it" premise.
II. Writing Assessment in Composition Studies:
Portfolios in Current Theory and Practice
Anson, Chris M., ed. Writing and Response: Theory,
Practice and Research. Urbana: National Council of Teachers
of English: 1989.
This collection of essays develops the thesis that
teacher response to student writing has been unchanged in important
ways for the last century, despite generations of scholarship
on the importance of what Anson calls "real, substantive"
response as the key precondition for student learning, indeed
for language development in general. Various essays discuss present
and potential assumptions underlying today's theories of response
as an element of teaching writing; new perspectives on methods
to responding to student writing; and using structured interactions
between teacher and student and among students to improve writing
ability by harnessing the socially interactive aspects of language
development. Again, the agreed-upon absence of normative texts
in the context of college composition will be distinguishable
from the legal writing setting with its highly normed standard
texts.
Belanoff, Pat and Marcia Dickson, eds. Portfolios;
Process and Product. Portsmouth NH: Boynton/Cook, 1991.
Peter Elbow's Foreword to this collection
of essays on portfolios identifies the increased nationwide pressure
for assessment tools other than teacher grades as one of the origins
of using portfolios, developed as an alternative to quantitative
assessment of student work by those outside the classroom, supported
by its proponents' claim that portfolios reflect student writing
abilities more accurately than do one-by-one writing assignments,
therefore having more validity, a valued characteristic for those
on a psychometrically-shaped mission to measure student performance.
Elbow also focuses on how using portfolios involves teachers
in collaborative grading, an element he finds particularly important
to the task of socially constructing knowledge about composition,
since neither literary theory nor philosophy provides normative
standards of textual excellence. He locates two other benefits
of using portfolios: first, they tend to help students understand
their own writing processes; second, they appeal to teachers who
wish to reward students' efforts to improve, revise and deepen
their own writing. Teachers and students collaborate to help
elicit and produce students' best work, rather than focus on what
students get wrong or do not know.
Bloom, Lynn Z., Donald A. Daiker and Edward M. White,
eds. Composition-in the Twenty-First Century: Crisis
and Change. Carbondale: Southern Illinois TJP. 1996.
This written version of a 1993 conference sponsored
by the Council of Writing Program Administrators addresses foundation
questions like "What is composition and why do we teach it"
and "%o should teach composition and what should they know?"
One essay locates a key shift in the subject matter composition
teaching, from the text to the writing Processes of our students.
Another attributes to composition's "tradition of amateurism,"
i.e. using part-time graduate student teaching assistants,
part of its lack of stature in the university, suggesting that
writing programs support and conduct their own research combining
investigation with attempts to effect useful changes. Slevin's
useful essay proposes redefining the discipline of writing as
the act of "inviting and enabling others to join our conversation,
" rather than study of textual subject matter. This emphasizes
"the activity of passing on knowledge and nurturing
the powers that enable it."(5) Huot observes that two prominent
composition teachers and theorists (Elbow and White) "assert
that any test that has a negative effect on teaching or on students'
learning can no longer be considered valid." (5) Another
essay asserts that social change has deprived ordinary citizens
of the power to "create knowledge and to effect change."(6)
Since lawyers are constantly called on to distill specialized
knowledge and to invoke the coercive power of the co @ to effect
change in economic or power relationships among individual and
corporate citizens, this essay reveals as particularly paradoxical
any aspect of first-year legal education which infantilizes rather
than empowers it-, student,;, future actors in many arenas of
civil society.
Haswell, Richard H. Gaining Ground in College
Writing: Tales of Development and Interpretation.
Studies in Composition and Rhetoric. Dallas: Southern Methodist
UP. 1991
One essay identifies two models of students' growth
as writers, one model of competence growing like height or weight,
the other competence growing like knowledge or skill, "mappable
as the path of an outsider entering into the bounded circle of
a discourse community" (5), before adopting a third model,
called "developmental" and distinguished by its inclusion
of the three parts of the educational experience:" teacher/mentor,
student and field of study. Interaction among the three assures
that all three develop appropriately. (6) The developmental model
offers ways of understanding conditioned by where the student
is in her or his own life development; where the mentor/teacher
is; and where the field of [legal] writing is. It dignifies students'
role in the teaching/learning process by allowing them to affect
its direction, at least if the teacher/mentor sees fit to change
course if an approach does not elicit student success.
Hillocks, George Jr. Research on Written Composition:
New Directions for Teaching. Urbana: National Council of
Teachers of English: 1986.
Hillocks' useful monograph surveys a vast literature
about the writing process. He presents background data on every
stage of writing. His four categories are: (1) the writer's repertoire,
i.e., the lexical, syntactic and generic forms a writer
cal Is upon to generate a text; (2) the writing process, encompassing
searching memory for appropriate information, prewriting, writing
and revision; (3) the focus of instruction, for example on sentence
structure, grammar, rhetorical constructs useful in ordering arguments,
etc.; and (4) the design of instruction, including the nature
of the objectives for writing instruction and who sets them, the
nature and frequency of leaning tasks, the presence or absence
of models, the types and frequency of writing assignments and
the nature, source and occurrence of feedback. Tellingly, studies
quoted indicate that while focused, specific comments probably
have a positive effect on student writing, more general, diffuse
or abstract ones do not. Teachers' making substantive changes
may deprive students of the chance to work through their problems,
whereas questions or suggestions may help them do so. Data suggests
that a combination of peer and teacher feedback was more effective
than teacher feedback alone, though Hillocks admits the data is
too sparse to permit firm conclusions. He notes that (as of 1986)
no studies reached conclusions about efficacy of the kind of feedback
used with portfolios (241). Importantly, he notes the then-lack
of data concerning the interaction of variables with student ]earnings
though he notes that the "environmental mode" of instruction
appears significantly more effective than other modes. TMs teaching
mode is characterized by (1) clear and specific objectives, e.g.
to increase the use of specific detail in student papers; (2)
material and problems selected to engage students with each other
in specifiable processes important to some particular aspect of
writing; and (3) activities, such as small-group problem centered
discussions, conducive to high levels of peer interaction concerning
specific tasks. This mode minimizes lecture and teacher-led discussion.
Students work on particular tasks in small groups before proceeding
to complete tasks individually.
Huot, Brian. "Toward aNew Theory of
Writing Assessment," CCC 47 (1996) 549-566.
Huot argues that continued pressure on teachers to
fix objectively a student's ability to write comes from
an outdated, no longer relevant understanding of teaching, learning
and assessment. He offers as an alternative to quantitative scoring
guidelines with high interrater reliability "new procedures
[that] recognize the importance of context, rhetoric, and other
characteristics integral to a specific purpose and institution
... [and that are] site-based, practical and have been developed
and controlled locally."(552) One result of the new approach
is its deliberate orientation inward toward students and teachers,
not outward toward standardized norms, and toward " interpretations
[of writing success) from readers most knowledgeable about the
context of assessment." This approach evaluates students'
ability to "accomplish a specific communication task."
Huot argues that the use of this assessment method moots the "portfolio
vs. single sample" debate, since the number and method of
producing assignments would depend on the specific assessment
context. Teachers could use whichever approach gives better information
about the skills or knowledge students are to acquire and practice.
Huot's concern about freeing students' cognitive energies and
identities in socially-bound groups will likely be relatively
unimportant in legal writing, since all students have "signed
up" to join the community of legal writers deploying the
various, but highly normed, languages of the law.
North, Stephen M. The Making of Knowledge in Composition:
Portrait of an Emerging Field. Upper Montclair, NJ: Boynton/Cook:
1987.
North begins with a fascinating summary of how Composition
came became a separate discipline, breaking away from English
and striving for intellectual respectability, having its own theoretical
underpinnings and tensions between practitioners and researchers,
a decade or more before this started to happen in the field of
legal writing education. Apart from the information it conveys
specifically about Composition, the book functions as a fascinating
chronicle of how a body of pedagogical knowledge forms, differentiates
itself from what has gone before and from parallel bodies, attracting
critics and adherents.