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 law 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 anthropology, 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.