The Language of Law School This page intentionally left blank

macro
structural accounts that consider broader social and cultural patterns and
less reductive 
micro
level accounts that capture the complex and creative dynamics
at work on the ground in educational settings.
73
 As Yon explains, during the 1990s
research in the area followed “an increasing move away from essentialism toward
a view of race, gender, and class as social processes linked to competing interests
in education and society.”
74
 One of the key conceptual tools in this antiessentialist
move is the concept of “schooling as a discursive space,” in which the 
micro
 and
macro
 interact in complex, nondeterminist ways.
75
 Scholars such as Stanton
Wortham who are working in the area of language and education have pointed
to the analysis of indexical structuring in discourse as an important tool for
achieving this 
micro-macro
 synthesis.
76
This study, then, examines underlying cultural and power dynamics at work
in the language of the law school classroom, but also considers ways that legal
training might transcend or gain some measure of autonomy from these dynam-
ics. The analysis brings together two different approaches: psychologists’ and
linguists’ focus on how the language of education interacts with the formation
of social epistemologies and identities, and sociologists’ and anthropologists’
broader concern about the role of education in reproducing power relations.
Drawing on a Silversteinian framework, we will pay careful attention to indexi-
cal structuring and the creativity of real-time discursive processes in an effort to
bridge the 
micro-macro
 analytic divide. Thus, building from a strong tradition
in anthropology, sociolinguistics, and linguistic ethnography of education, this
study examines the details of classroom interactions to understand the larger
dynamics at work in educational processes.

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26
Introduction
The Role of Language in Law, Legal Reasoning, and Legal Education
The centrality of language and language structure to legal reasoning has long been
recognized by legal theorists. From John Austin’s conceptualization of law as the
“command” of a sovereign through Ronald Dworkin’s insistence on the centrality
of interpretation to law, jurisprudence has grappled with the place of language in
legal decision making.
77
 Legal scholars investigating the structure of legal reason-
ing from a variety of angles seem inevitably to wind up asking questions about
legal language or rhetoric and how it works.
78
 In an interesting early attempt to
map the language of an evolving doctrine, Edward Levi showed how phrases such
as “imminently dangerous” and “inherently dangerous” took on a life of their own
over time in legal reasoning, going through messy periods of linguistic evolution
during which jurists themselves became somewhat unclear about the meaning of
the obstreperous legal categories.
79
 James Boyd White has suggested that in the lan-
guage of judicial opinions, judges constitute communities and engage in con-
versations that can foster or discourage democracy.
80
 And scholars like Patricia
Williams and Duncan Kennedy have looked at the law school classrooms in which
this language is taught as prisms through which we can see, in crystallized form,
the language of law in action—though the landscape they discern is very bleak
indeed, reinforcing existing power asymmetries, sexism, and racism.
81
Indeed, over the years, a great deal has been written about law school educa-
tion by legal academics, much of it taking the form of a debate over the relative
benefits and detriments of particular approaches to law school education.
82
 Ever
since 1870, when Christopher Columbus Langdell introduced his new revolution-
ary approach at the Harvard Law School, law school teaching has had its own dis-
tinctive “Socratic method” genre of teaching. Langdell linked this method for
teaching with an overall substantive theory of law, predicated on the idea that there
are foundational legal principles, analogous to scientific law, that are discernable
through analysis of the raw data of appellate cases. Although it is not clear to what
extent people using the label “Socratic method” are actually talking about the same
kind of speech genre,
83
 commentators continue to speak of Socratic teaching as
the signal approach to law school pedagogy.
84
 The stereotypic picture of this genre
is that professors question students on the cases assigned for a particular class,
so that information is imparted not through lecture or explanation but through
an ongoing stream of questions designed to challenge unquestioned assumptions
and reveal underlying legal principles.
85
 There have been numerous critiques of
Langdell’s formalist philosophy and pedagogical system—most notably from the
legal realist school of the 1930s, which also pressed for more clinical education
in law schools,
86
 and more recently from critical scholars within the legal acad-
emy.
87
 However, despite a number of arguably successful attacks on the substan-
tive underpinnings of Langdell’s approach, the method itself appears to have
outlasted its theoretical rationale.
88
Central themes in critiques of Socratic method teaching in law schools have
been that it fails to impart moral values, that it imparts the wrong moral values,
that it is not functionally adequate even for teaching doctrine, that it causes un-
necessary and harmful stress, that it favors white male students, that it fosters in-

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Law, Language, and the Law School Classroom
27
civility and overly competitive attitudes, and that it leaves students unprepared for
the realities of practice. Johnson, for example, notes that as law schools adopted
the Socratic method, there was a shift from the model of lawyers as moral decision
makers to an image of law as a technical field of expertise.
89
 Zemans and Rosenblum
similarly note the move away from moral considerations involved in Langdellian
scientism.
90
 Critical legal theorists like Duncan Kennedy take this insight one step
further, insisting that the shift to technical expertise itself embodied a morality,
but in a negative sense.
91
 In a somewhat different vein, James B. White character-
izes current law school training, with its emphasis on “doctrine in a vacuum,” as a
failure, and proposes instead a more egalitarian and creative training.
92
 Implicit in
White’s critique is also the notion of functional, as well as moral, failure: that the
Socratic method and accompanying approaches to law school education, when
losing the interest and destroying the confidence of law students, fail to effectively
impart even the more abstract conceptual aspects of legal training.
93
 Another long-
standing criticism has been that law schools turn out lawyers not equipped to prac-
tice law.
94
 This criticism, though it did not end the use of Socratic training, did
contribute to a partially successful movement for clinical education in law schools.
95
Today, some of the most innovative ideas about improving law teaching can be
found in the scholarship of clinical and legal writing law professors.
96
Specific critiques of the Socratic method have emerged from psychological,
sociological, and educational research. For example, psychiatrist Alan Stone used
a combination of personal observation and interviewing to assess the advantages
of this teaching method.
97
 Although he concluded that there were some advan-
tages for “channeling group emotions into structured academic inquiry,” Stone
also expressed concern about the negative effects of the Socratic method on stu-
dents’ interpersonal relations and sense of self-esteem, a theme echoed in current
studies of psychological distress among law students.
98
 Studies have also highlighted
the limits of Socratic teaching in reaching students with diverse learning styles,
personalities, and backgrounds.
99
 Susan Daicoff connects the shift to more imper-
sonal reasoning encouraged by legal training with lawyer dissatisfaction, lowered
public trust in the legal profession, and declining professionalism.
100
 In addition,
Taunya Banks, Lani Guinier, and others have indicated ways that Socratic teach-
ing might operate to differentially exclude women and students of color, results
given support by an ABA report on the subject (see discussion in Chapter 7).
101
In contrast, supporters of the Socratic method maintain that the method bears
a special relationship with the style of reasoning required by lawyers, that it is effi-
cient in large classrooms, that it stimulates active involvement on the part of stu-
dents, that it prepares students for the adversarial debates and quick retorts required
of practicing attorneys, that it is not necessarily more dominating and manipula-
tive than the methods used in clinical teaching, and that it conveys at once the
guiding principles and indeterminacy of the law in a way that lectures could not.
102
Elizabeth Garrett, for example, highlights the utility of Socratic teaching as a method
for fostering active learning and critical thinking.
103
 Along with Stropus and other
defenders of Socratic teaching, she distinguishes the Socratic method itself from
unduly harsh or uncivil classroom dynamics and suggests ways to encourage a less
intimidating atmosphere in the law school classroom.
104
 On the other hand, Vitiello

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28
Introduction
repudiates the purported benefits of “gentle” pedagogical approaches in law schools,
insisting that one of the virtues of true Socratic teaching is its acerbic edge, which
prepares students for “demanding judges who are impatient with attorneys who
are not well prepared or who do not answer their questions directly.”
105
 In this study,
I present analyses that demonstrate a different potential congruence between the
canonical Socratic method and legal thinking—not an argument for greater teach-
ing efficacy, certainly, given other results of the study, but an argument for a strong
resonance or linguistic fit.
106
Some social science research has attempted to assess specifically what skills are
imparted in law school by particular methods and how that might vary across law
schools. Several studies found differences among law schools according to pres-
tige ranking of the school, with elite schools less likely to emphasize rigid rules and
more likely to emphasize analytical thinking and theory.
107
 Interestingly, however,
regardless of where they went to law school, lawyers in one study overwhelmingly
agreed that “‘ability to think like a lawyer’ was the most important knowledge
imparted by law schools.”
108
 This knowledge includes specific skills such as “fact
gathering,” “capacity to marshal and order facts to apply concept,” and “ability to
understand and interpret opinions, regulations, and statutes.”
109
 These results were
confirmed in research by Garth, Martin, and Landon on current attitudes among
urban and rural attorneys.
110
 The one area that practitioners across the board agreed
was important to practicing lawyers, and that they agreed was relatively well ad-
dressed by law school teaching, was legal reasoning: “There are some relative suc-
cesses in teaching the specifically legal skills of legal reasoning, legal research,
substantive law, and now also professional responsibility.”
111
 A question that re-
mains is whether any particular teaching methods are important to attaining this
reported success.
Studies of teaching method have often produced negative results; there is little,
if any, relation found between the method used and the results. Thus, controlled
experiments in which first-year classes were divided into separate groups, some
taught Socratically and others not, resulted in generally similar performances.
112
When Bryden attempted to test the difference between first- and third-year abili-
ties to perform functional analysis applying concepts to facts, to distinguish hold-
ing from dicta, and to construe ambiguous statutes, he found less difference than
would be expected, given that third-year students had had a number of years of
training using the Socratic method.
113
From a linguistic standpoint, to bring our discussion back to its starting point,
the Socratic method can be understood as an oral genre or speech style, and this
study tackles the issue of teaching method from that standpoint. It may be obvi-
ous that children are learning new orientations when their parents and teachers
teach them spoken and written language, but adults can also undergo similar
transformations. Building on Whorf’s insights about the orienting power of lan-
guage structure, we can expand beyond the effects of grammatical categories on
speakers’ habitual perceptions to examine the effects of the contextual organiza-
tion of language as a system in use. Viewed in this way, linguistic ideology and
metapragmatic structuring can be understood as powerful influences shaping law-
yers’ orientations. As we will see, learning to read written legal texts is one key

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Law, Language, and the Law School Classroom
29
component of this orienting practice, conveyed in the process of the particular kind
of language socialization that we find in legal education. Learning the language of
law, then, involves a reorientation not only in how students speak, but also in how
they approach written language. (See Chapter 4 for further discussion of how an-
thropologists approach the practices associated with written and performed texts.)
Linguistic anthropologists, sociolinguists, and others studying language in
social context have developed a considerable literature on the social ramifications
of different discourse styles or genres, and on the role of language in classrooms.
In particular, linguistic anthropologist Susan Philips characterized what happens
in law school classrooms as “acquiring the ‘cant’ ”: as learning a new way of speak-
ing.
114
 Empirical researchers have also delineated the distinctive shape of legal lan-
guage in courtrooms, law offices, and other legal settings. Recent books in the area
by John Conley and William O’Barr, Susan Hirsch, Gregory Matoesian, and Susan
Philips have shown that legal language plays a crucial, nontransparent role in me-
diating social conflict, social change, and the distribution of power in societies.
115
Matoesian and Conley and O’Barr clarify the ways social power affects and is trans-
lated through the language of law. They do not, however, depict legal language as
a simplistic reflex of social structure, but analyze it as a complex resource with its
own dynamics.
116
 However, along with scholars like Charles Briggs, they do also
stress that legal discourse can operate to reinforce social inequality, while essen-
tially hiding its own tracks.
117
Philips and Hirsch examine the impact of culture and ideology on how legal texts
are differentially contextualized and used in court. Philips demonstrates the com-
plicated ways that politics can be filtered through metalinguistic structure to affect
judicial behavior, so that judges with different political ideologies operationalize the
very same textual language quite differently. Hirsch combines analyses of the dis-
courses of Islamic law, Swahili ethics, spiritual health, and Kenyan law in studying
how marital disputes are discussed in a Kenyan court. In keeping with Philips’s ear-
lier research on Tongan law, Hirsch resists the idea that there is a single, uniform,
state-enforced ideology regimenting Kenyan courtroom discourse. Instead, she
stresses that legal negotiations involve multiple layers of language and ideology,
which interact with one another in sometimes unpredictable ways.
118
Sally Merry reached similar findings in her study of working-class plaintiffs in
U.S. courts. She shows how the intertwining discourses of law, morality, and therapy
interact to frame the claims that litigants bring to court, accepting some as valid and
dismissing others as “garbage cases.”
119
 Paradoxically, litigants have to accept state
intervention in their lives as they attempt to gain power through perceived legal en-
titlements. As Sarat and Felstiner have documented, in this process, the imposition
of legal discourse requires that people separate aspects of their experience and selves
from others; Merry explains that “the construction of some kinds of identity and
effacing of others is a fundamental aspect of the power of the law in the present as
well as the past.”
120
We see this dynamic in the law school classroom as well.
Greenhouse’s landmark work among the Baptists of “Hopewell” took this issue of
identity and law up to the level of community, tracking how legal discourse can mark
the line between insider and outsider, between past and present, between acceptance
and exclusion.
121
 Thus, anthropologists have provided us with an in-depth picture

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30
Introduction
of the complicated role of legal language in mediating between the wider social
world that litigants inhabit and the narrower confines of legal institutions.
122
Summary
In the rest of this volume, I build from these literatures and from previous studies
of law school classroom methods and discourse, as well as from research on texts
and textuality, to develop a detailed analysis of law school classroom language.
123
The strands of scholarship that I have brought together in this chapter together
provide a rich foundation for an analysis of law school classroom language. First,
work on the social foundations of language urges us to examine the way language
itself might embody a worldview or epistemology. This scholarship also indicates
the importance of studying the interaction between discourse structures and pat-
terns of language use. Second, studies of language socialization have uncovered the
ways that linguistic routines and practices can shift children’s and adults’ under-
standings and orientations in the world. Studies of classroom language have re-
vealed that distinctive cultural worldviews are at work in educational processes,
and have inquired into the power dynamics at work when worldviews clash. Fi-
nally, scholarship on law school teaching has debated the relative value of distinc-
tively legal teaching genres, most notably the Socratic method. In general, studies
have suggested that law teaching is most successful in conveying legal reasoning,
though commentators have disagreed as to whether that is a desirable result. And
empirical researchers studying language in other legal domains have demonstrated
the socially powerful effects of legal language in shaping legal results. The remain-
der of the book draws these strands together in an examination of similarities and
differences in the language of eight Contracts classrooms. We begin with an expla-
nation of the methodology involved.

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3
.
.
Study Design, Methodology, and Profile
31
T
his opening section outlines the particular synthesis of methodological ap-
proaches used in this study. In addition, it describes the site selection process
and the trajectory of the research as it developed. Finally, it outlines some of the
complexities involved in coding turn-taking in law school classes.
Design and Methodology