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The Language of Law School This Page Intentionally Left Blank the Language of Law School 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 his is a study whose genesis dates back to the day I first took my seat in a Con- Ttracts 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 Acknowledgments n a fashion that ought to please followers of Carol Gilligan, I began composing Ithe 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 x Acknowledgments contract law discussions; any errors that remain despite their efforts are of course my sole responsibility. Sincere thanks also to my wonderful OUP editors. I wish to begin by acknowledging the team effort that goes into large-scale re- search projects of this kind. I have on numerous occasions reflected with some despair on the inadequacy of any mere acknowledgment to express my apprecia- tion to the extraordinarily dedicated group of researchers who worked on this project. Readers who know this field will recognize among the names on this list gifted scholars who have gone on to make outstanding contributions in their own right. Despite the sometimes dreary and plodding character of the work, everyone carried through even the tougher moments with grace and energy, and with a sense of camaraderie and fellowship. I thank Nancy Matthews, the first project manager, for her vision, intellectual precision, and good humor in directing the nitty-gritty daily work as we began the process of gaining access, taping, and formulating cod- ing categories, as well as for her own contribution to in-class taping and coding of one of the classes. Susan Gooding had the difficult task of taking over as project manager in midstream, a job she tackled with a high degree of commitment both to the people involved and to the project; her insights and conceptual rigor also greatly enriched the interpretation of the results as they emerged. Wamucii Njogu, who directed the bulk of the quantitative analysis, similarly insisted on careful and critical examination of the coding and data; her flexibility and intellectual curiosity in working across quantitative and qualitative aspects of the study brought a unique and exciting dimension to the results. And a heartfelt thanks to the exceptionally talented individuals who did the work of coding, inside and outside of the classrooms: Jacqueline Baum, Nahum Chandler, Janina Fenigsen, Leah Feldman, Christine Garza, Carolee Larsen, Mindie Lazarus-Black, Jerry Lombardi, Kay Mohlman, Robert Moore, and Shepley Orr. Steve Neufeld, Carlos de la Rosa, and Tom Murphy worked on the quantitative analysis. The tiring task of transcription was undertaken with care by Diane Clay, Leah Feldman, and Zella Coleman and her group. I also thank the “subjects” of this research, the professors and students in the eight classrooms we studied. Inviting researchers with tape recorders and coding sheets into one’s classroom takes guts, and the professors who did so deserve com- mendation for their willingness to take some risks in order to help advance our understanding of the teaching process. Having now taught law school classes my- self, I have a better appreciation of the courage it took to allow us to observe and record in their classrooms. I feel deeply grateful to the American Bar Foundation, my home since the project began and one of the major funding sources for this research. The Foun- dation has provided a uniquely congenial setting for this kind of work, with one of the premier groups of sociolegal scholars in the country. I have enjoyed and learned from my colleagues in that community, and I thank them for providing such an encouraging and intellectually rich context in which to do research. I am particu- larly grateful to the director of the Foundation during the time of this project, Bryant Garth, for substantial support and encouragement, and for the vision of interdis- ciplinary community that he has helped to make real. I owe much to all of my colleagues, past and present, at the ABF for their incisive critiques and their humor, Acknowledgments xi and above all for their exercise of maturity, reason, and care in managing the ups and downs of institutional life. For colleagueship above and beyond the call of duty, I thank Carol Heimer and Bob Nelson, each of whom in different ways has pro- vided highly valued support over many years now, as well as John Comaroff, Shari Diamond, Chris Tomlins, Mary Rose, William Felstiner, Susan Shapiro, Laura Beth Nielsen, Karyl Kinsey, Tracey Meares, Bonnie Honig, Annelise Riles, Steve Daniels, Bette Sikes, and Roz Caldwell, from each of whose expertise I have drawn in spe- cific ways. And Joanne Martin, of course—an indomitable force at the heart of the ABF for years—provided her own eagle eye on our numbers as well as unflagging enthusiasm for the project.
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