The Language of Law School This page intentionally left blank The Language of Law School Learning to “Think Like a Lawyer” Elizabeth Mertz 1 2007 3 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2007 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Mertz, Elizabeth, J.D. The language of law school : learning to “think like a lawyer” / Elizabeth Mertz. p. cm. Includes bibliographical references and index. ISBN-13 978-0-19-518286-6; 978-0-19-518310-8 (pbk.) ISBN 0-19-518286-3; 0-19-518310-X (pbk.) 1. Law—Study and teaching—United States. 2. Law—United States—Methodology. I. Title. KF279.M47 2007 340.071'173—dc22 2006045325 135798642 Printed in the United States of America on acid-free paper For my daughters, Jenny and Becca This page intentionally left blank Preface T his is a study whose genesis dates back to the day I first took my seat in a Con- tracts classroom as a first-year law student, and that came to fruition as I for the first time taught Contracts to first-year law students. Having participated in both ends of the process has added depth to my understanding of the law school experience. As a first-year student, I took notes in my Contracts class in two col- umns; the first kept track of the concepts my professor was endeavoring to im- press on us, and the second was a running anthropologist’s commentary on the studies that someone should do to investigate the social and linguistic processes at work in contract law—and in legal reasoning generally. This work is an initial ef- fort to investigate the distinctive shape of a core U.S. legal worldview, empirically grounded in the study of the language through which law students are trained to this new approach. During the first year of law school, students are reputed to undergo a trans- formation in thought patterns—a transformation often referred to as “learning to think like a lawyer.” Professors and students accomplish this purported transfor- mation, and professors assess it, through classroom exchanges and examinations, through spoken and written language. What message does the language of the law school classroom convey? What does it mean to “think” like a lawyer? Is the same message conveyed in different kinds of schools, and when it is imparted by profes- sors of color or by white women professors, and when it is received by students of different races, genders, and backgrounds? This study addresses these questions, using fine-grained empirical research in eight different law schools. This page intentionally left blank I n a fashion that ought to please followers of Carol Gilligan, I began composing the acknowledgments to this volume long before I started the book itself. This was because I have at all points felt deeply how much the work depends on a web of relationships, on the contributions of so many people to whom I feel profoundly indebted. Before I attempt to do justice to this rich relational context, let me thank two institutions, the American Bar Foundation and the Spencer Foundation, for the generous funding that made this project possible. Some of the material from Chapter 2 is reprinted by permission of The Yale Journal of Law and the Humani- ties, Vol. 4, pp. 168–173; portions of Chapter 4 appeared originally in Natural Histories of Discourse, edited by Michael Silverstein and Greg Urban (University of Chicago Press, pp. 229–249; © 1996 by The University of Chicago. All rights re- served). Chapter 6 contains material from Language Ideologies: Practice and Theory, edited by Bambi Schieffelin, Kathryn Woolard, and Paul Kroskrity (pp. 149–162, used by permission of Oxford University Press; © 1998 by Oxford University Press), as well as material that is revised by permission from Democracy and Ethnography: Constructing Identities in Multicultural Liberal States, edited by Carol J. Greenhouse (The State University of New York Press, pp. 218–232; © 1998 by State University of New York. All rights reserved). Thanks to the editors who worked on these materials with me as well as to those who helped with articles to which I retained copyright and from which I have drawn in this volume, which appeared in the Journal of Legal Education 48(1): 1–87 (with Wamucii Njogu and Susan Gooding), and the John Marshall Law Review 34(4): 91–117. I am also grateful to the many colleagues—anonymous reviewers as well as many who are named below—who have read and commented on parts of or all of the manuscript. Greg Matoesian and Stewart Macaulay graciously provided thorough reviews of the linguistics and Acknowledgments [...]... range of law school classes A combination of qualitative and quantitative methods allows us to explicate in detail the language of U.S law as it is taught in diverse law schools.4 The first part of this chapter presents, in summary form, the core argument of the book The second part takes the reader inside the law school classroom, sketching more concretely the kind of discourse found in U.S law teaching... have studied the role of language in human societies, trying to formulate an accurate picture of the intricate interactions involved I build on their work here in Law, Language, and the Law School Classroom 17 developing a model of how language works in the law school classroom, and in the law more generally The Role of Language in Society A number of traditions in linguistics, social theory, and anthropology... school experience and of the change required of law students during their initiation into the legal arena The detailed discussions to follow provide more of the subtleties and complications needed for a fuller understanding of the law school process 12 Introduction 2 Law, Language, and the Law School Classroom I n this chapter we survey the literatures and scholarship that provide the theoretical and... statement of the study’s research agenda and of the cross-disciplinary perspectives that inform it Chapter 3 explains the methodology used and sketches an initial profile of the data Entering the World of U.S Law 1 3 Entering the World of U.S Law M uch has been written about the first year of law school There have also been many attempts to define core aspects of U.S legal reasoning This book considers these... scholarship that has examined the role of language in society and culture, in socialization practices, and in education; it concludes with a discussion of the role of language in law, legal reasoning, and legal education The resulting synthesis of 12 Law, Language, and the Law School Classroom 13 insights from multiple disciplines provides the foundation for the model of language in social context used... truly democratic Yet, at the same time, we can see a genius to some aspects of this at once abstract and concrete legal language We begin, in Part I, by setting the scene for the rest of the book Chapter 1 outlines the central conclusions of the study and then takes the reader into the law school classroom, stepping into the shoes of law students who are beginning to learn legal language Chapter 2 provides... visions of legal language as either an entirely autonomous arena, divorced from social impacts, or as a mere reflex of external social forces Rather, combining both linguistic and social perspectives, we can find in the first-year law school classroom a fascinating prism through which to view a part of the world of U.S law Entering the World of U.S Law 7 Initiation: First Steps into the World of Law Picture... these two issues together, using a study of the initial law school experience to shed light on legal worldviews and understandings One focus of this research is the content of U.S legal epistemology (i.e., distinctively legal ways of approaching knowledge), as revealed in the training of initiates into the world of law The study uses close analysis of classroom language to examine the limits that legal... particularly imbued with the social life of which it is a part Perhaps one of the most famous formulations of the relationship between language and culture emerged from the works of language scholars Benjamin Lee Whorf and Edward Sapir and their followers.18 Controversial from the outset, this school of linguistics examines the contribution of language structure to understanding the way speakers in different... that “they” decided the plaintiff could get damages (translation: money), but that “they” reduced the damages This sounds like a pretty specific response to you, but the professor interrupts and gets very picky about who “they” are It turns out that the “they” who awarded the damages was the jury, but the “they” who reduced the damages was the judge This seems to matter a great deal to the professor, . The Language of Law School This page intentionally left blank The Language of Law School Learning to “Think Like a Lawyer” Elizabeth. spoken and written language. What message does the language of the law school classroom convey? What does it mean to “think” like a lawyer? Is the same message