Perspectives: Teaching Legal Research and Writing | Vol. 22 | No. 1 | Fall 2013
20
Cite as: Jessica L. Clark, Peer Review: Using Time, Place, and Manner Constraints to Maximize Learning, 22 Perspectives:
Teaching Legal Res. & Writing 20 (2013).
With specific
“time,
place,
and manner
constraints in
place, the exercise
Peer Review: Using Time, Place, and
Manner Constraints to Maximize Learning
By Jessica L. Clark1
Jessica L. Clark is a Visiting Associate Professor of Legal
Research and Writing at Georgetown University Law
Center in Washington, D.C.
has proved one
I. Introduction
of the most
“Can you show us a sample?”2 First-year legal
writing students often ask this question as they
struggle to understand what it means to write
a memorandum or a brief, or even an interim
portion of a writing assignment, hoping that
seeing an example will crystallize what they are
learning in class.3 When students read samples
on their own, they are reading them to answer
the question, “What should my memo look
like?”—but generally not to evaluate and learn
from the samples. Sometimes students even go
so far as to copy portions of a sample, thinking
that the sample did it “right,” and they also want
to do it right. This approach can backfire not only
because of the potential for plagiarism, but also
because the sample may have nothing to do with
the student’s writing assignment. For example, in
memorable
and productive
classroom
sessions each
year in my firstyear legal writing
”
course.
1 This article is based on several presentations: “Role Playing
Meets Peer Editing in the Legal Writing Classroom,” Rocky Mountain
Legal Writing Conference, Ariz. State Univ., Sandra Day O’Connor
Coll. of Law, Tempe, Ariz. (Mar. 14, 2009), “‘Can you give us a sample
memo?’: How to Effectively Respond to Students’ Requests for Sample
Memos,” Empire State Legal Writing Conference, St. John’s Univ.
Sch. of Law, New York, N.Y. (May 13, 2011), and “Memo Samples
as Lesson Plan Material: Satisfying Students’ Perceived Need for
Samples,” Capital Area Legal Writing Conference, Georgetown Univ.
Law Ctr., Wash., D.C. (Mar. 9, 2012).
my first year of teaching, after giving my students
a sample employment discrimination summary
judgment memo I had written in practice, one
of my students copied the summary judgment
standard of review section into a predictive memo
about intentional infliction of emotional distress.
Since then, I have learned that incorporating
samples into legal writing courses is an effective
teaching technique, but only if I first set time, place,
and manner constraints to guide the students’
process of evaluating and using the samples.
In an effort to accommodate students’ requests
for samples and to ensure that students learn
something from reading the samples, I developed
a peer review exercise that gives students the
opportunity to read and learn from a sample memo
on a legal issue unrelated to their current writing
assignment. The peer review exercise is designed
to account for various challenges in peer review in
the first-year classroom, including students’ fear of
embarrassment, students’ inexperience resulting in
mixed results in a traditional peer review, and the
professor’s lack of control.4 With specific time, place,
and manner constraints in place, the exercise has
proved one of the most memorable and productive
classroom sessions each year in my first-year legal
writing course. In this article, I first briefly describe
the exercise and then the specific time, place, and
manner constraints that I provide. Next, I discuss the
benefits of doing this variation of peer review. Finally,
I offer suggestions for effectively incorporating
this teaching technique in your own classroom.
2 I receive this question from at least one student for each new
legal writing assignment (e.g., single-issue predictive memo, multiissue predictive memo, pretrial motion memorandum, appellate
brief).
3 This desire makes sense because many first-year law students
have never seen a legal writing product. Judith B. Tracy, “I See and I
Remember; I Do and Understand:” Teaching Fundamental Structure
in Legal Writing Through the Use of Samples, 21 Touro L. Rev. 297,
308-09 (2005).
4 See Kirsten K. Davis, Designing and Using Peer Review in a FirstYear Legal Research and Writing Course, 9 J. Legal Writing Inst. 1, 3-4
(2009) (identifying four considerations in peer review design).
Perspectives: Teaching Legal Research and Writing | Vol. 22 | No. 1 | Fall 2013
II. The Peer Review Exercise
In brief, the peer review exercise involves students
reading a short predictive memorandum, usually
falling in the midrange quality-wise for a first-year
student’s first memo. The memo represents a range of
weaknesses but also some well-developed strengths,
particularly in the application sections. The memo is
a first-year student’s memo, but not a student from
the class (it might be from a colleague’s class that
semester or from a past year’s class, and the paper’s
author is anonymous). Students read the memo in
advance of the peer review class, thinking about what
strengths and weaknesses they identify in the paper.
Students come to class and I tell them the student
who wrote the paper is with us today looking
for some advice on how to improve as a writer.
I normally ask my teaching assistant to play the
student writer, but any willing upper-level student
can fill this role. Then each student has 3-5 minutes
to discuss the strengths and weaknesses with the
writer, and no specific strength or weakness may
be repeated during the class period. With that
introduction, I ask for volunteers and we get started.
While the students are talking to the teaching
assistant in the role of the writer, I take detailed notes,
highlighting the big picture concepts I will return to
at the end of class or perhaps cover in the next class.
A. Time: After the First Memo; Before the Next
Major Writing Assignment
Arguably, peer review could provide some benefits
at any point in the semester, even as early as the
very first writing assignment. But given their status
as novice legal writers,5 most first-year students
are unlikely to fully appreciate a peer review
exercise until after they have completed their first
memo assignment. Depending on how a course is
structured, this first deadline is likely somewhere
between one-third and one-half into the semester,
and this deadline marks the beginning of the best
range of class time to use peer review in the first-year
writing course. Peer review before the first memo is
submitted can stifle students’ ability to understand or
5 Joseph M. Williams, On the Maturing of Legal Writers: Two
Models of Growth and Development, 1 J. Legal Writing Inst. 1, 9-13
(1991).
invent6 a reasonable understanding of what it means
to craft a legal analysis in memo format. But in that
brief time period following the deadline for the first
memo assignment and before the deadline for a
draft of the next memo assignment, most students
have at least a basic grasp of the major legal writing
concepts. This basic experience is enough for
students to fully engage in and appreciate the peer
review opportunity, with the practice of one paper
already written and now enmeshed in the next
project, thinking about how to use what they learn
in the peer review to strengthen that next project.
This particular time period is also a critical learning
time for students. They are already thinking
about their next assignment, even if they have
not drafted anything, and the results of the peer
review exercise offer them immediate guidance
and techniques to use as they work on their next
assignment. Earlier in the semester, before the
first paper is due, for example, students are often
too overwhelmed to digest the lessons learned
during a peer review and may completely fail
to incorporate those lessons into the paper, just
given the level of stress so often accompanying
the first paper. Later in the semester, students
might feel less interested in peer review and more
interested in getting more feedback on their own
papers as they head toward a heavily weighted
final assignment. Again, these factors do not mean
that peer review cannot be effectively done at a
point other than between the first paper and the
draft of the second, but years of doing this exercise
have taught me that is the time when students are
most engaged in the exercise, which likely leads
to greater results in their ability to incorporate
what they learned into their own writing.
6 Kristen Robbins-Tiscione, A Call to Combine Rhetorical
Theory and Practice in the Legal Writing Classroom, 50 Washburn
L.J. 319, 326-31 (2011) (“Early in the fall semester, first-year students
tend to think that their role as legal writers is to report the law they
find and that they have no authority to characterize it. In the latter
case, a typical student will say, ‘I thought that might be the rule of law,
but I could not find a case that specifically said that.’ One advantage
to teaching analysis and argument as beginning with ‘invention’ is to
signal the creative aspect of the lawyer’s process.”).
21
This basic
“experience
is
enough for
students to fully
engage in and
appreciate the
peer review
opportunity ...
thinking about
how to use what
they learn in the
peer review to
strengthen that
”
next project.
Perspectives: Teaching Legal Research and Writing | Vol. 22 | No. 1 | Fall 2013
22
[P]eer review
“gives
them the
opportunity to not
only be the reader
instead of writer,
but to discuss legal
writing outside
of the intimate
relationship they
have with their
”
own papers.
This point in the semester is also an ideal
opportunity to have students discuss a peer’s
writing, to practice being part of the legal
discourse community with some experience. The
professor can get a sense of her students’ entry
into the legal discourse community based on what
students focus on as strengths and weaknesses,
and what in particular students describe as
effective or ineffective and the rationale behind
those assessments. The discussion is framed by
what students have been learning about effective
legal writing, and the peer review gives them the
opportunity to not only be the reader instead
of writer, but to discuss legal writing outside of
the intimate relationship they have with their
own papers. And given the timing, they have
the immediate opportunity to translate that
perspective into their next writing assignment.
B. Place: In the Classroom
Peer review for first-year students in the early
stage of their legal writing education should be
in a classroom with a professor leading the peer
review. An upper-level student teaching assistant
could also take on the role of leader in the peer
review exercise, but for the best results, the
students’ professor should be in the classroom
during the peer review. Being in the classroom
helps the students understand the peer review
as an educational opportunity, just like all the
other exercises. Doing a peer review exercise in a
classroom also brings the typical classroom setting
features, such as the professor leading the class,
professional interactions among students and
professor, and the professor’s ability to observe,
intervene, and provide constructive comments
to steer the peer review to function effectively.
C. Manner: Professor-Directed and Managed
The peer review exercise should be executed
professionally, with no reason for students to fear
criticism or fail to engage in the conversation
because they do not feel comfortable providing
constructive comments to a peer or receiving
comments from a peer. This fear is one of the
reasons I developed my peer review exercise with
time, place, and manner restrictions—before I
developed this exercise, I used a sample from
the class, and many students commented about
how the paper could be improved. The student
behind the paper came to my office later, crying.
Even though she had the strongest paper in the
class and I chose her paper as the example to
discuss in class precisely because of its multiple
strengths, she still felt personally attacked and
the exercise was a complete waste for her.
With this in mind, the manner restriction guides the
choice of a memo written by a first-year student not
in the class and places a fake student author as the
person taking the feedback from the students. In this
construct, there is no reason to feel embarrassed or
worry about embarrassing a peer, concerns which
can impede the value of exposure to a peer’s work
and listening to a peer’s response to a paper. This
design does create somewhat of a pseudo-peer
review because the actual peer is not in the classroom
and the paper’s author is not a classmate, but the
actual author and role-playing author are close
enough to actual peers that the exercise works for its
intended purposes. In fact, the exercise works better
because executing it in this manner eliminates the
distractions that can come with actual peer exchange.
Choosing a memo from outside the class also
gives the professor the ability to control the range
of strengths and weaknesses in the memo to
maximize teaching and learning during the peer
review exercise. The professor can even modify the
memo to exacerbate problems or take strengths
up a notch to a truly sophisticated presentation of
legal analysis to create fodder for discussion, or
even to point to a well-done analogy as a model for
students moving forward on their next assignment.
III. Benefits to the Students & Professor
My most recent experience with this exercise
involved a class of first-year students, with my
teaching assistant, Mike, playing the role of the
student author of the memo I assigned as the
peer review piece. From my weakest to strongest
writer, every student demonstrated confidence in
pointing out weaknesses to Mike and articulating
how to improve the paper, and several students
were able to transcend the paper and talk about
how to become a better writer using the paper as
Perspectives: Teaching Legal Research and Writing | Vol. 22 | No. 1 | Fall 2013
context. The students also maintained a balance in
avoiding condescension by offering encouragement
to Mike. For example, one student told Mike that she
had to keep asking herself “Why?” as she read the
application section of the memo, because there was
a lack of clear connections between the analogies
and distinctions. The student advised Mike that
he did not have to try to cram everything into one
sentence, and encouraged him to write two or three
sentences to carefully take the reader through his
analysis, making sure he had adequate sentence space
to include all the necessary facts and conclusions
without distracting the reader with run-on sentences.
The students experienced and participated in a
discussion about a piece of legal writing, practicing
for future conversations with a supervisor or getting
a glimpse of what it means to supervise and provide
feedback to a legal writer. They discovered they
were good at identifying strengths and weaknesses
in another author’s paper, and we discussed in the
wrap-up portion of the class how they could use
those skills in revising and polishing their own
papers. Students came away from the exercise with
an awareness that they knew more than they thought
they did and with good ideas about how to approach
an effective review of their own papers. They also
left the exercise with confidence in their ability to
talk about legal writing, to use language their fellow
legal writers understood, and to offer constructive
comments that matched up with the principles of
legal writing we had covered in class up to that point.7
Not only did the students learn from this opportunity
to discuss legal writing, but I also benefited
from the exercise in several ways. First, placing
a manner restriction on the content of the peer
review by choosing a paper from outside the class
meant I had no fear of making any students feel
bad, and I did not have to worry about a student
7 I was inspired by Professor Susan L. DeJarnatt to do more in-class
student discussion about writing. Susan L. DeJarnatt, Law Talk:
Speaking, Writing, and Entering the Discourse of Law, 40 Duq. L. Rev.
489, (2002). “Rarely do lawyers write without discussing their writing
project with someone. LRW is, or should be, the bridge between these
contrasting experiences. It must give students the experience not only
of writing, but of presenting that writing to others, reading the legal
writing of others, and talking about it.” Id. at 510.
23
showing up at my office later that week to talk
about how I made them feel bad in class.
Second, I learned from my students in listening to
them explain things in ways I had never considered.
One student talked to Mike about the general
disorganization of the memo and Mike explained
that “the whole legal writing thing” was tough for
him to get used to. The student explained that the
secret to legal writing is to just follow the formula,
embrace the formula, and let it work for you.
Mike pushed back on this advice, though, saying
he did not like the strict use of the formula and
wanted to write in his own style. He complained
that Thesis, Rule, Explanation, Application, Thesis
Restated as Conclusion (TREAT)8 did not let
him write creatively, and he was stuck writing
in a way he did not like. The student responded
by telling Mike to not think so much, and even
told Mike, “just take out your brain and put it
on a shelf.” I have definitely not said that in class
or conferences, but the graphic analogy worked
in the context of the exercise when Mike finally
came around to accept that the TREAT formula
was a tool for beginning legal writers and that,
for now, the best choice was to let it work for him
instead of against him. We did spend some time
thinking about that specific comment during
the end-of-class discussion, specifically pointing
out that legal writing is definitely not about
removing your brain and putting it on a shelf.
Third, I had the opportunity to observe my students
in new ways because of how they adapted to their
roles as peer reviewers giving critical advice to a
peer writer. Group or partner work is common in
my classroom, which gives me the opportunity to
observe student interaction, including identifying
leaders and quieter members within the groups.
With this exercise, though, every student was
involved. Every student volunteered to participate,
and some wanted to go twice. I observed excitement
and professionalism in my students that I do not
normally see in a typical legal writing class. I also
8 Michael D. Murray & Christy H. DeSanctis, Legal Writing and
Analysis 20, 137-67 (2009). “TREAT is simply a more sophisticated
version of IRAC.” Id. at 139.
Students came
“away
from the
exercise with an
awareness that
they knew more
than they thought
they did and with
good ideas about
how to approach
an effective
review of their
”
own papers.
Perspectives: Teaching Legal Research and Writing | Vol. 22 | No. 1 | Fall 2013
24
feature is
“myThisfavorite
part of
the exercise—the
opportunity to
see my students
demonstrating
what they
have learned
and showing
excitement and
confidence in
providing advice to
”
a peer.
noticed my students were thinking and talking
about things we had been thinking and talking
about all semester. I heard them say things I have
said, and also defend those things when Mike
questioned them, indicating that they grasped
the concept and were not just mimicking me
without understanding what they were saying.
This feature is my favorite part of the exercise—the
opportunity to see my students demonstrating
what they have learned and showing excitement
and confidence in providing advice to a peer.
IV. Using the Exercise in Your Class
There are variations for effectively executing this
exercise in your classroom, and how you decide
to do it might depend on what resources you have
available to you. The time, place, and manner
constraints described here are among many
possible restrictions that could be used to aid the
execution of a peer review exercise. At a minimum,
there must be content for the peer review—an
example memo or other relevant type of legal
writing product—and a student to play the role
of the first-year student author of the paper. For
the student playing the first-year student author,
choose someone you know to be an accomplished
legal writer. Most likely, you will want to choose an
upper-level student, but teaching assistants are only
one group of upper-level students to whom you
may have access. You could ask any of your former
students, as long as you find someone you trust.
You could probably safely play the role of
first-year student yourself if you prefer that
variation, but doing so can make observing
your students and thinking about how to bring
the exercise to a close even more challenging
than it already is. Placing the professor in the
role of the student author also might take
away some of the comfort and confidence I
witnessed in my students’ conversations with
Mike, but it could also boost the seriousness of
the exercise when the students are required to
have the peer review conversation with you.
Another variation is to have students work in pairs,
with one student acting as the author of the memo
and one acting as the peer reviewer. You could see
similar results with this approach, and would not
have to find an upper-level student to come to your
class. This method would also require you to move
around to closely observe the pairs’ interactions.
Essential to success with this exercise is deciding
whether to and when to cut in, breaking the roleplaying as needed. If students are getting confused,
either because of the role-playing dynamic or because
of confusion on substantive issues, you may want to
call a time-out to bring everyone back to the same
page. Of course, if students get defensive or abusive,
you would also want to take a break at that point.
This exercise, like any exercise in a legal writing
classroom, is an opportunity for you to be inspired,
giving your students a tangible learning experience
while learning about your students. When I first
tried this exercise with the time, place, and manner
constraints as described here, not only did I see the
exercise exceed my expectations, but I was reminded
of why it is worth taking a chance to try something
new. As easy as it is to recycle last year’s lesson
plans, thinking creatively and trying new things in
the classroom will lead to better teaching by you
and better learning by your students. And there
should be no constraints on reaching those goals.
© 2013 Jessica L. Clark