The Language of Law School This page intentionally left blank

Lesson One: Be Cautious When (as You Must)
You Essentialize Context
In a sense, this study’s results demonstrate the very practical utility of these
contextualist approaches in making sense of empirically observable patterns. For
example, some research on gender in college classrooms has assumed that re-
sults from studies conducted in different schools addressed the same phenom-
enon. In one case, for instance, a study that did not find significant gender effects
at a “large northwestern university” represented its result as contradicting ear-
lier studies in other schools that did find gender effects.
2
 There are several diffi-
culties with this approach, and each involves an essentializing step.
First, in assuming that findings in any given school or classroom can, in trans-
parent fashion, be used to talk about 
the
 college (or law school) classroom, this
kind of approach takes a particular school or classroom as an “essential” or typical
class. The authors of the “large northwestern university” study proclaimed, “Our

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209
data suggest there are not major sex-related behavior differences in the college class-
room.”
3
 But what they in fact found was that there were no major sex-related be-
havior differences in a set of classrooms in one university. It seems obvious that
this does not mean that previous authors who found sex-related differences in other
settings were wrong. In many of these studies we have no detailed information about
key aspects of the schools’ contexts: their histories, status, or general cultures, for
example. In a refreshing, if unusual, attempt to acknowledge the potential impact
of such factors, a later study that did not find gender differences raised the possi-
bility that the school’s particular history and situation might be affecting its find-
ings: the school was Vassar, a longtime women’s college that had only recently begun
admitting men.
4
 Similarly, in my discussion of the findings of the present study, I
have identified aspects such as school status, class size, and professorial style and
identity as potentially important factors.
There are additional difficulties with viewing studies conducted in different
schools as contradictory if they reach differing results on gender or race. Gender
or race may mean something different in different class settings, depending on
the particular configuration of the school and classroom settings; perhaps gen-
der may be salient in one arena but not in another. Indeed, even the same con-
textual features—small class size, for example, or a Socratic style of teaching—can
take on different meanings depending on nuances of context. Of course, some
form of essentializing of context is necessary in order to compare across class-
rooms, but the point here is that we must work toward more sensitive and fine-
grained understandings, while not abandoning the effort to step back and see
larger patterns.
Thus, the first lesson about context to be drawn from this research is that careful
delineation of the fine-grained aspects of context—school, class, teacher, students,
discourse style—is necessary if we are to understand what combinations of con-
textual factors help to produce more inclusive classrooms. We have seen that
smaller, more informal classrooms do not necessarily produce gender equality, and
that there are nuanced differences among Socratic teachers that can contribute to
quite different senses of context for students. In the move to a more complex view,
we can draw on the work of scholars who have written on race and identity, such
as María Lugones and Kimberlé Crenshaw. These writers have argued that the
experience of people at the margins of society can contribute to our understand-
ing of human experience in general, because certain aspects of the formation of
identity that are problematic for everyone are brought into still sharper relief in
the experience of those who must negotiate across more boundaries in our soci-
ety. If all of us possess a multiple sense of identity, if all of us must at times trans-
late across different worlds, then perhaps those for whom these processes are a
continuing, urgent necessity can be our best teachers about the way context and
identity shape human interactions. One lesson we can learn from these experts is
to listen more carefully for everyday forms of multilingualism, becoming more
aware that the same person can and often does speak differently in different con-
texts. Thus, if we observe an individual in only one context and imagine that we
have a complete picture, we will be mistaken. Again, there is a direct contribution
to fairly mundane empirical problems here, for this means that it is possible for

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210
Conclusion
two people to become fluent in the language of the law while feeling quite different
senses of comfort or ownership.
Some scholarship has indicated that there are differences among law schools
in terms of typical pedagogical style, overall goals of legal training, and law school
cultures. A study of students and professors at 22 law schools by Alfred Smith
found “significant differences in cognitive styles among law schools.”
5
 Teaching
at elite schools was not as rigidly focused on rules, but “aim[ed] to cope with
legal ambiguities and alternatives,” whereas lower-status schools tended to be
“oriented to law practice and black letter law.”
6
 Zemans and Rosenblum simi-
larly noted that graduates of elite schools were more likely to “emphasize ana-
lytical thinking and the theoretical basis of the law” than those of “non-national”
law schools.
7
 Robert Granfield makes a similar point in his comparison of Harvard
and Northeastern law schools, as does Christa McGill in her contrast of three law
schools that differ in status.
8
 Although my study does provide some support for
this view, finding somewhat more emphasis on theory in the more elite class-
rooms (with some exceptions, however), it also provides some important cau-
tionary notes.
First, law professors in all of the first-year classrooms of this study are heavily
focused on teaching a legal reading of cases, which is a genre unlike any students
had likely encountered before law school. During this initial exposure to law in
the first semester of law school, we see some striking similarities in overall em-
phasis in these classrooms. Although it is important to notice status-based dif-
ferences, a full picture must also take account of these empirically observable
similarities in first-year classroom discussions across diverse law schools. It seems
likely that differences among the schools will become more marked during sub-
sequent semesters, after students have assimilated the rudiments of the new genre,
and will also be more noticeable in the overall curricula of the schools. But the
initial task facing law students during their first semester is the same across law
schools of different statuses, and this is reflected in the classroom discussions
when carefully analyzed.
Second, there are differences among schools of similar rankings. A local law
school in a city may be quite different from one located in a rural area, as might be
a large state university (i.e., regional) law school located in the farm belt from a
smaller, regional law school in an urban center. Thus, generalizations about insti-
tutions based only on status rankings may elide other distinctions that are also
having an impact on schools’ priorities and cultures.
Third, there are individual differences among professors that do not map
neatly onto traditional status hierarchy divisions. Several of the professors in this
study who taught in local or regional law schools had a keen interest in aspects
of legal theory, which they conveyed to their students, whereas one of the pro-
fessors in a very elite law school downplayed theoretical discussions. As we have
seen, professors teaching at lower-status institutions who were trained at elite
law schools may turn out to share some aspects of pedagogical style regardless of
where they are teaching. In addition, professors as individuals do not always re-
main in one kind of law school throughout their careers. Indeed, one of the pro-

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fessors in this study who taught at a local/regional school subsequently moved
into teaching at an elite/prestige law school. Thus, it would not be surprising
to find some differentiation among professors based on their career aspirations.
It seems important, then, to give full weight to differences among law schools
by status while also acknowledging the complexities that do not permit us to paint
a completely deterministic picture of their impact. This picture would contain
a balanced view of similarities and differences in pedagogy across different kinds
of law schools, rather than erasing one part of the picture in favor of the other.
This study, then, demonstrates that school status, race, gender, and other as-
pects of social context all matter, but they have their effects in complex interactions
that require careful contextual analysis. The social differences among students and
classrooms affect the interactions and learning that occur in law school in ways that
can be characterized as “underdeterminate”;
9
 that is, race and gender are important,
in some ways formative, but not completely determining aspects of classroom ex-
changes. Students of different race or class backgrounds, of different genders or sexual
preferences or ages can be simultaneously “different” and the “same”: they may re-
spond similarly to some aspects of context but differently to others. Professors of
different backgrounds or generations may approach teaching differently even within
the same institution. As we struggle with this more complicated picture, we have to
use more particular and careful questions, asking how the mixture of school profile,
discourse style, teacher profile, class composition, student profile, interactive dynam-
ics, and the content of discussion may have combined to create more or less egalitar-
ian sites for learning and discussion.
10