American Bar Foundation An ABF Update Volume 18, Number 4, Fall 2007

n recent years American legal perspectives, to the detriment of education has come under both the profession and the public. Iscrutiny. Educators and admin- Her most recent findings were istrators have questioned whether published this year in The Language current school curricula and of Law School: Learning to ‘Think Like a pedagogical methods best prepare Lawyer’ (Oxford), and “Inside the students for the practice of law in a Law School Classroom: Toward a rapidly changing, diverse, and New Legal Realist Pedagogy,” increasingly interconnected world. Vanderbilt Law Review Vol. 60, no. 2. Law schools are searching for sound empirical research to guide With graduate degrees in both them through a process of reform. law and , and herself The two leading sources for this a law professor, Mertz is well- information have been the Ameri- positioned to conduct an in-depth can Bar Foundation and the empirical study of American legal Carnegie Foundation, whose education. Hers is the first study to recently-released reports on legal examine law school teaching in education have been garnering terms of language at a very fine level of detail, employing the Elizabeth Mertz national attention. Indeed, the Carnegie Foundation for the methods of linguistic anthropology Advancement of Teaching’s highly- and sociolinguistics. In the initial regarded report,“Educating Law- section of her study Mertz observes yers: Preparation for the Profession and records the teaching of law to of Law” (2007), itself drew heavily see “whether law school pedagogy on the work of Senior Research has a shared linguistic structure The Language of Fellow Elizabeth Mertz, who for and/or epistemological message many years has studied law school across otherwise quite diverse Law School: education from a linguistic per- classrooms.” Such commonalities spective. across classrooms are important Learning to because “subtle cultural messages Mertz’s large-scale research can be encoded in discourse struc- ‘Think Like a Lawyer’ project analyzes data compiled ture, so that any shared features of through meticulous fieldwork. She law school classroom language are finds that law school classrooms, potential keys to a commonly-held, though they differ in geographic distinctive legal worldview.” In the location, student composition, second section of the study Mertz faculty philosophies and other shifts her focus from the world- factors, share a common linguistic view underlying legal school structure. Mertz argues that, by language to the larger structure of way of the linguistic dynamics of classroom discussion. Here Mertz law school classrooms, law stu- considers the frequency and dents are gradually indoctrinated duration of student classroom into a distinctive legal world-view, speech, in relation to the gender which, while it provides them with and race of both students and powerful analytic tools, also closes professors. She then analyzes how them off from alternative social all of these factors interact “to

Expanding Knowledge, Advancing Justice create more or less inclusive standing of law school classroom classrooms for students.” dynamics.” By incorporating Linguistic anthropology and Shared Message: Learning to relatively little of sociolinguistics “insist on detailed Speak, Read, and Think Like a observation of… exchanges and on Lawyer first year law the use of verbatim linguistic data.” Since Mertz’s main focus was on Thus, for her research, Mertz the linguistic dynamics of the students’ responses carefully selected eight law schools classrooms, she limited her study to questions, from across the nation, represent- to first-year Contracts classes, so ing the status hierarchy of schools, that the content of the teaching was professors steer as constant as possible. At the same time, first year, first-semester students towards “Subtle cultural classes were chosen because it is in aspects of legal messages can be these classes that incoming stu- dents are exposed to “their first re- texts they would not encoded in orientation to language as they enter their new chosen profession.” be accustomed to discourse structure, Mertz likens this experience to an seeing and away, at so that any shared initiation rite and compares it to the reorientation to the human least initially, from features of law body that new medical students experience as they dissect their first the “social contexts school classroom cadavers in gross anatomy lab. As and moral language are first year medical students develop a dispassionate “clinical attitude,” overtones” inherent potential keys to a so first year law students learn to “think like a lawyer,” according to in human conflicts. commonly-held, Mertz. Mertz’s research points to distinctive legal the crucial role of language in the reorientation of new law students. aspects of language work to rein- worldview.” “What we found in the law school force or even create an underlying classrooms was that linguistic orientation to the world.” Profes- norms are ruptured as law stu- sors impose patterns of linguistic dents are urged to give up old interaction in classrooms, which in with “three from the ‘elite/prestige’ approaches to language and turn convey indirect messages to category, two from the ‘regional’ conflict and adopt new ones. students about the law and its category, and three from the ‘local’ ‘Thinking like a lawyer turns out to workings in society. category.” First semester Contracts depend in important ways on classes at each school were tape- One way to study linguistic speaking (and reading, and writ- recorded in their entirety, while at patterns in classrooms is to exam- ing) like a lawyer.” the same time, researchers sat in ine “uptake structure.” “Uptake” the classrooms and coded aspects The Importance of Being measures whether a student’s of classroom interactions, focusing Pragmatic answer to a previous is incorpo- on “each class turn (such as the The contextual structuring of rated by the professor in a subse- length of turn, gender/race of language in human interactions is quent question. As Mertz states, “if speakers, and whether the turn termed “language pragmatics” by the teacher takes up some part of was volunteered or called-on).” The anthropologists and linguists who the student’s response in a subse- resulting tapes, transcripts and study the “interface of language quent question, then the student coding sheets were used to create and society.” Rather than analyz- has had an impact on the class- fine-grained summaries of each ing words in terms of their room exchange.” Mertz notes that class session, which were aug- decontextual qualities, as in stan- the Socratic method of teaching, mented, when subjects were dard “semantic”-based ap- frequently used in law school willing, with interviews of profes- proaches, Mertz observes the classrooms, “is characterized by sors and of small groups of stu- “pragmatic” or contextually low amounts of uptake.” By incor- dents. Mertz’s detailed empirical dependent aspects of classroom porating relatively little of first study thus “combined qualitative language. As Mertz states, in year law students’ responses to and quantitative analyses to various social contexts, including questions, professors steer students produce a more accurate under- the law school classroom, “subtle towards aspects of legal texts they

2 RESEARCHING LAW VOLUME 18 NUMBER 4 WINTER 2007 would not be accustomed to seeing Prof.: It was appealed, you say. and // // indicates overlapping and away, at least initially, from Did you find that word anywhere speech) : the “social contexts and moral except in (the) problem? [+positive overtones” inherent in human uptake]” “Prof.: Hi. Um, can you start conflicts. developing for us the arguments for “Slowly but surely,” Mertz the plaintiff and the defendant. (.) Many of Mertz’s classroom states, “law students learn to listen Um, Ms. N.? transcripts illustrate the paucity of for new aspects of the ‘conflict uptake in Socratic dialogue be- stories’ with which they are Ms. N.: Um, that the plaintiff was tween professors and students. In presented,” and they learn how to a young, youthful man// with// this somewhat humorous example, do this, “through the restructuring, Prof.: //great// the plaintiff was a a student is questioned about a case in context, of the very language in beautiful man (). [[class laughter]] in which a professional entertainer which they discuss what they have Is that what you said?” sued a plastic surgeon for malprac- read.” Mertz’s transcripts show tice, claiming he had disfigured her, that even professors who use a (After interrupting the student, after which the surgeon appealed modified Socratic structure or who the court’s decision (the symbol // // use lectures as their primary mode “Linguistic norms indicates overlapping speech, and () of teaching still rely heavily on a indicates inaudible speech) : question and answer format (in the are ruptured as law case of lectures the professor poses students are urged Prof.: What errors were alleged and then answers his or her own in the appeal of Sullivan v. O’Connor question), and this format is used to to give up old () Ms. [A.]? What errors were “refocus students’ attention on alleged in the appeal of Sullivan v. layers of textual and legal author- approaches to O’Connor? ity.” Through the professor’s language and Ms. A.: Um the defense claimed repeated questioning, students are that um the judge failed in allowing directed to consider the status of conflict and adopt the jury to take into account for the authoring court in the hierar- new ones. ‘Thinking damages anything but a claim for chy of courts, the procedural stance out-of-pocket expenses. of the case, the doctrinal categories like a lawyer turns or statutory provisions the court Prof.: Well that’s a rather general discusses, and other similar issues. out to depend in statement. How did this get to the appellate court? Legal Language and Legal important ways on Epistemology Ms. A.: Well the um the patient Through her careful analysis of the speaking (and was a woman who wanted // a// structure of law school classroom reading, and Prof.: //How //did this case get to discourse, Mertz finds that a the appellate court? distinctive legal worldview is writing) like a conveyed to students in the course Ms. A.: The defendant disagreed of their studies. For example, when lawyer.”Christian in with the way the damages were new law students begin to discuss nature awarded in the trial court. cases and the conflicts they contain, the students y usually start by Prof.: How did this case get to focusing on the content of the story. the appellate court? The Supreme Professors, on the other hand, want Court once ah-I think this is true- the professor directs her to skip the students to organize the “facts they asked some guy who’d never narrative details and move to the of the case” around legal arguments argued a case before the Supreme legal issues): and precedents. As an illustration Court before, they said to him—he of this phenomenon, Mertz pro- was a Southerner—and they said Prof.: “Okay, all right, so there’s a vides a transcript where a profes- to him ah “Counsel, how did you lot at stake in the choice of which sor interrupts a student who is get here?” [[laughter]] “Well,” he branch of this rule to apply in this trying to elucidate the case by said, “I came on the Chesapeake particular fact situation. And all “telling the story” in a “layperson’s and Ohio River.” ((*imitated Southern I’m interested in, Ms. N., is what the narrative frame,” where it is quite accent*)) [[louder laughter]] How arguments are, um, for cost of common to start by introducing did this case get to the supreme completion, which is what the and describing the main characters judicial court? plaintiff wants in both cases, and ( the symbol (.) indicates a short what the arguments are for dimi- Ms. A.: It was appealed. pause, () indicates inaudible speech nution in value, which is what the

VOLUME 18 NUMBER 4 WINTER 2007 RESEARCHING LAW 3 transcripts document that this ments are really two, it seems to “The move to focus happens in all the classrooms me. One: ‘Our offer expired. It studied, regardless of the status of lapsed. There’s nothing out there to on form, authority, the law school or the philosophy of accept anymore. You waited too and legal-linguistic the professors. Yet, Mertz points long.’ The court doesn’t buy that out, at the same time this is hap- one. Uh, two: ‘The offer’s still valid contexts is… pening, professors sometimes allow but you haven’t accepted yet.’ That broad discussions of the social second argument, Ms. L., was really accompanied by a contexts in which disputes evolved, an argument about what that shift away from permitting a wide range of suppo- phrase means in the offer, ‘com- sitions and loosely-supported mencement of performance,’ isn’t precision and depth hypotheses, “with very little it?According to the Greens, what consideration of how to achieve would commencement of perfor- in discussions of greater accuracy,” as, by contrast, a mance have been? content, morality, social scientist would likely de- mand. “The move to focus on form, Ms. L.: Um, well, after showing and social context” authority, and legal-linguistic up at the house, saying ‘Okay, you contexts is thus accompanied by a can start’—“ shift away from precision and Mertz notes that in this excerpt depth in discussions of content, the professor and students appear morality, and social context,” Mertz to be merely reporting or animat- defendant wants in both cases, all reports. ing words authored by the parties right? All I want is the argument, in the case, while at the same time okay?” This lack of precision when discussing the social context of they are actually “putting words Through their repeated ques- cases is paralleled in the way into these characters’ mouths,” and tioning of students, through professors and students talk about interruption, and by incorporating and for the parties in the cases they relatively little of students’ an- are analyzing. Mertz notes that in “Men spoke more swers in subsequent questions, classroom discussions professors professors reframe the telling of the and, following their lead, students frequently and for conflicts found in cases in terms of frequently use “fictionalized disproportionately legal and textual authority, guiding reported speech” as the following the students to consider what the transcript illustrates: more time than did court was authorized to decide. If the court “writes about hypotheti- “Prof: […] But of course it does women in six of the cal situations other than the one put Ever-Tite Roofing in an excel- eight classes.” before it, students learn, this part of lent situation. They draft the terms the story is to be separated from of the offer and they decide the ‘holding—the authoritative whether to accept it or not, you thus function as “authors as well part of the case. The holding is know. They’re like, ‘You want a as animators” of the reported valid only if uttered by the correct deal? Sure. Maybe not.’ They – speech. The authoring of speech by authority, following the correct they’re playing both sides. Now, professors and students is signifi- procedure, delivered in the correct um, how long after the offer is cant, Mertz reports, because it form.” As Mertz points out, “this is given from the Greens to Ever-Tite conveys several subtle ideological a new and very different sense of Roofing, uh, do we get the com- messages. where to look when we decide mencement of performance in the case? I think it’s nine days, right? First, by using reported speech what counts as a ‘fact,’ how to in their classroom exchanges, construct valid accounts of events, Mr. M.: Right. professors convey to students “a and where to demand accuracy.” quiet message about the power of Prof: Then nine days later, Ever- legal discourse to… create reality.” In the course of their first Tite Roofing packs up the truck and Once again, this discourse always semester class students are called heads for the Greens. But what gives primacy to “the layers of upon to be more and more precise happens when they get there? “about the texts, their institutional legal and textual authority…in , and their relationships Ms. L.: Someone else is there (). determining the ‘truth’ of events.” The words that professors and, with other texts (precedent, for Prof.: Someone else is already on example).” Mertz’s classroom gradually, students use to report the job. Okay? The Greens’ argu- the speech of people involved in

4 RESEARCHING LAW VOLUME 18 NUMBER 4 WINTER 2007 conflicts emphasize “legally detail, but without budging from relevant argument and strategy,” In the Mertz study, its core assumptions.” Because as if “strategic considerations were attorneys advocate for their clients already part of the characters’ black students in an adversarial setting, they are internal or external dialogue “required to hold onto [their] throughout the entire story.” spoke more freely client’s interests and to contest any Through this process, the intrica- and contributed data that might get in the way.” cies of the social context in which Mertz contrasts this way of think- conflicts play out are pushed to the more substantially ing and acting to that of academics margins, as professors focus on the in, for example, the social sciences, strategic positions of the parties. in the classrooms in who are forced, at least eventually, which they had both to revise their theories when Secondly, while professors confronted with conflicting or appear to be reporting the speech of cohorts and contradictory data. Because parties in conflicts, they are actu- lawyers are trained to seek truth ally ‘authoring’ a narrative professors of color through argumentative dialogue it through the voices of others. Mertz is difficult to introduce “humility finds similarities in professors’ use available to them of reported speech and that of attorneys as they question wit- for support. nesses in court. As Mertz states, “in court, attorneys create an authori- tative version of the ‘facts’ by their own internal question-and- developing competing stories via answer dialogue, professors the utterances of witnesses. Attor- demonstrate the process of legal neys attempt to shape these reasoning. Professors show stu- AMERICAN BAR utterances, selecting particular dents that they “must gain a new FOUNDATION witnesses and coaching them to capacity, responding to and initiat- ing argumentative dialogue with present the story that is most PRESIDENT favorable to their side. The wit- others and using internal dialogue David K. Y. Tang nesses often give the appearance of structured around the posing of a being both authors and animators series of questions to analyze legal DIRECTOR Robert L. Nelson of the stories they tell, but the texts.” Continually emphasizing argumentative and analytic attorneys in fact share the author RESEARCHING LAW: role, not only through coaching dialogue throughout students’ first AN ABF UPDATE witnesses, but also because they semester, professors convey the Volume 18, Number 4, actually co-produce the narrative message that the “adversarial Fall 2007 as they elicit testimony from process is the means by which legal truths and facts are ascertained, EDITOR/WRITER witnesses through questioning.” Katharine W. Hannaford The use of reported speech both in and it is the means by which law the courtroom and in the classroom obtains legitimacy in the wider PRODUCTION is problematic, according to Mertz, society…” Clara N. Carson in that it “foregrounds an inau- As Mertz points out, the ABF PHOTOGRAPHY thentic authorship and hides the strength of the adversarial process Rozanne Caldwell complex play of social power and is that it ensures that both sides in discursive maneuvering that really a conflict are represented and that controls the utterance.” by “running the facts through the © 2007 American Bar Foundation The final ideological message filter of legally relevant categories” All rights reserved. conveyed through the use of attorneys may at times help Researching Law: An ABF Update reported speech is the “primacy of individuals escape “the prejudices is published four times a year by the the dialogic form in legal dis- and inequities of socially embedded American Bar Foundation, 750 N. Lake Shore Drive, course.” Professors convey this moral judgments.” At the same , Illinois 60611. message through the use of re- time, however, Mertz argues that ported speech, but also by posing the way legal reasoning is taught and answering their own questions and practiced “creates a closed (as well as by engaging students in linguistic system that is capable of Socratic dialogue). By revealing devouring all manner of social

VOLUME 18 NUMBER 4 WINTER 2007 RESEARCHING LAW 5 first year law classrooms, in the self-confidence, along with higher “If students of color second section of her study, Mertz levels of distress.” expands her focus to examine “the and female students structure or form of the classroom When race was examined, Mertz discussion itself.” Her findings in and her research team “found some tend to be more this section concern race and dramatic relative disproportions in favor of white students, ranging as silent in law school gender in both students and faculty and how these factors influence high as 289%.” However, some classrooms, then any classroom participation. While her variations from this pattern were analysis of language revealed also seen. In the two classes that differences these striking similarities across diverse were taught by professors of color, students of color took turns speak- students bring with classrooms, Mertz’s analysis of the patterns of classroom interactions ing proportionate to their numbers them in terms of uncovers both similarities and in class. In a class taught by a differences among classrooms. In white male professor, using a experience or general, though, Mertz’s codings of modified Socratic teaching style at a “regional” law school, “students background are not the give and take between profes- sors and students provide data of color participated at rates given voice in the that show less frequent participa- greater than would be expected, tion of both female and minority given their relative proportion in crucial initial students, a finding that “seems to the class.” socialization be consistent across most of the Nevertheless, in general, Mertz’s research done to date in law study as well as previous studies process. To the schools.” point to lower participation by extent that these When the gender dynamics of students of color. “Self report classroom interactions were studies have generally painted a differences in examined, Mertz found that “men picture of lower in-class participa- tion by students of color than by experience reflect spoke more frequently and for disproportionately more time than white students,” Mertz reports, race, gender, class, did women in six of the eight “coupled with more negative classes.” These six classes were reactions to law school…” Con- or other aspects of taught by men, except for one class versely, a number of other studies “indicate that African-American social identity, we taught by a woman at an elite/ prestige law school. The two students who attended historically again see aspects of classes where women students’ black law schools have had a speech was proportionate to their different experience,” Mertz re- social structure and numbers in the class (or even ports. Mertz cites these studies, as well as her own observational difference pushed to slightly higher) were taught by women at “local” law schools. study to support “the hypothesis the margins of legal that black students talk more freely As Mertz states, the “over- and contribute more substantially discourse.” whelming majority” of other when they have both cohorts and studies of legal education have professors of color available to “found skewing toward male them for support.” students in class participation into legal thinking”. Yet, Mertz rates.” While observational studies Some interesting variations to argues, “a more subtle and sophis- like Mertz’s are relatively few (and the patterns concerning gender and ticated understanding of the social mostly conducted by students race in class participation raise world could arguably contribute to themselves) recent student-led questions for further research. For better legal outcomes,” if lawyers studies at Yale, Harvard, and the example, though Mertz reports that were more receptive to findings have “still female students participated in from empirical social science found differential participation by proportion to their representation research. male and female students,” Mertz in the two classes taught by female professors in non-elite schools, Different Classroom Patterns: reports. These findings dovetail “along with other researchers, we Whose Voices are Heard? with self-reports of female students did not find that the encouraging After thoroughly analyzing the who have “repeatedly reported effect of female law professors was details of language in context in lower rates of participation and

6 RESEARCHING LAW VOLUME 18 NUMBER 4 WINTER 2007 as great in more elite schools, proving law school pedagogy. leaving us with a question about the interaction of school status “Unlike scholars in First, she argues that law with gender.” professors themselves need to some other fields, become more aware of the limita- Students of color, on the other tions built in to the structure of hand, spoke more in classes taught law professors have legal discourse, that they embrace by professors of color, regardless of an “epistemological modesty,” by the status of the school. As noted not been trained to becoming more open to other above, students of color spoke most ask themselves perspectives and frameworks of in those classes taught by profes- knowledge. This would require a sors of color, where substantial systematically what creative and voluntary reorienta- numbers of their fellow students tion toward their field since, were also of color. their method cannot “unlike scholars in some other do, or where the fields, law professors have not been Mertz finds parallels between trained to ask themselves system- the patterns of classroom interac- limits of their atically what their method cannot tion and the closed linguistic do, or where the limits of their structure of law school instruction, approach lie.” approach lie,” Mertz notes. Sec- where the emphasis on legal and ondly, students would benefit if textual authority relegates the professors integrated this openness details of social context and social safely abstract layers of legal into their classrooms, by calling difference to the margins. The categories and authorities, regard- attention to the limitations as well relative silence of students of color less of social identity or context.” as the strengths of law’s linguistic and women in law school class- system as they teach. Finally, law rooms raises questions about However, while this move school professors and administra- “cultural invisibility and domi- toward abstraction can counter tors should pay close attention to nance.” Mertz raises the concern those aspects of social context that classroom “culture and context.” that “if students of color and female lead to bias, at the same time “this While more research is needed, students tend to be more silent in process conceals the ways legal Mertz’s study suggests that it may law school classrooms, then any results are often quite reflective of be important to consider the effects differences these students bring existing power dynamics, while of minority professors and minor- with them in terms of experience or simultaneously pulling lawyers ity student cohorts on how stu- background are not given voice in away from grounded moral dents of color fare in law school. the crucial initial socialization judgment and fully contextualized Students of color can also add process. To the extent that these considerations of human conflict.” alternative voices to classroom differences in experience reflect Thus, “the legal system itself, while discourse. race, gender, class, or other aspects purporting to serve all citizens of social identity, we again see equally, can hide behind the screen Elizabeth Mertz is a Senior Research aspects of social structure and provided by its legal-linguistic Fellow at the American Bar Foundation difference pushed to the margins of filter, concealing even from itself, and Professor of Law at the University legal discourse.” the way that inequalities are of Wisconsin Law School. In addition to Toward a New Legal Pedagogy integral to its structure.” support from the ABF, Mertz’s research Despite their limitations, Mertz The increasing diversity of on law school education was funded by does not advocate discarding American society, as well as the the Spencer Foundation. Mertz reports teaching methods, including the spread of the “rule of law” in an on her research in The Language of Socratic method, that perpetuate increasingly interconnected world Law School: Learning to “Think Like a law’s closed linguistic system. promise to bring into even greater Lawyer” (Oxford, 2007) and in “Inside Students continue to need to learn relief the conflicts inherent in the the Law School Classroom: Toward a this legal “lingua franca” in order “double edge” of the linguistic New Legal Realist Pedagogy,” to function as attorneys. And law’s structure of American law. How, Vanderbilt Law Review, Vol. 60, No. 2, linguistic system contains positive then, to best prepare lawyers for 2007 aspects. Mertz notes that “there is their future roles in a “democratic without question a certain genius state and diverse world”? Based on to a linguistic-legal framework that her research findings Mertz offers treats all individuals the same, in some recommendations for im-

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