Berger, Applying New Rhetoric to Legal Discourse: The Ebb and Flow of Reader and Writer, Text and Context

Applying New Rhetoric to law school pedagogy, this article suggests an ebb and flow of reader and writer, text and context drawn from New Rhetoric theory, research, and teaching practices. Almost all legal writing scholarship now focuses on some aspect of New Rhetoric. Yet it is likely that the product approach still prevails in the places where the papers are graded, in part because it is the more familiar and straightforward way that papers have always been graded. What follows is an initial attempt to more fully apply New Rhetoric theory and research to the teaching of legal reading and legal writing. The overall goal of the teaching practices described in the article is to encourage students to view their early readings and writings as tentative drafts that are open to change; to build in pauses when the student-as-reader or the student-as-writer can reflect on current meanings, goals, and plans; and to give students contextually based rhetorical choices to move forward. The article includes advice on reading reflectively, as expert readers do; on writing reflectively, by keeping a reflective journal; on planning in writing, through the zero draft; and on the many phases of revision, including the use of peer writing and reading groups.