The Language of Law School This page intentionally left blank

Part IV
1. Schlegel, “Walt Was Right,” 604.
Chapter 9
1. See, e.g., Frug, 
Postmodern Legal Feminism
; Abrams, “Title VII and the Complex
Female Subject”; Coombe, “Contesting the Self”; Larson, “Imagine Her Satisfaction.”
2. Even the title of an article reporting findings from the study makes this generaliz-
ing premise evident: see Boersma et al., “Sex Differences in College Student-Teacher In-
teractions: Fact or Fantasy?” This title presupposes that the results of a single study can
definitively answer the question whether or how gender works in all classrooms.
3. Id., 783.
4. Constantinople et al., “The Chilly Climate,” 549.
5. Smith, 
Cognitive Styles
, 131.
6. Id.
7. Zemans and Rosenblum, 
The Making of a Public Profession
, 57.
8. Granfield, 
Making Elite Lawyers
; McGill, “Producing Lawyers.”
9. See Mertz, “A New Social Constructionism for Sociolegal Studies,” 1246–1248.
10. Catherine Krupnick has urged a similarly complex and contextual approach to
creating more egalitarian sites for learning. Krupnick, “Women and Men in the Class-
room,” 25.
11. R. Austin, “Bad for Business.”
12. Auerbach, 
Unequal Justice
, 276.
13. Elkins, “The Legal Persona,” 742–743. Note the covert nature of this semiotic
mediation, which characterizes a very social categorization process as above subjectivity,
thereby concealing its own social origins. Elkins draws on Scheingold’s observation that
the legal worldview is “more deluding than some other[s]” in that it perpetuates a myth
that “thinking like a lawyer” is actually the equivalent of performing objective analysis that
“strip[s] a problem, any problem, down to its essentials.” Scheingold, 
Politics of Rights
,
161, cited in Elkins, “The Legal Persona,” 740–741. Ironically, subscribing to this myth
means that those trained to “think like a lawyer” have no training that would allow them
to “critically analyz[e] and assess[] the assumptions underlying the lawyer’s peculiar view
of the world.” Id.
14. Postone, 
Time, Labor, and Social Domination
, 144–160.
15. Merry, 
Getting Justice and Getting Even
.
16. Williams, 
Alchemy
, 163–164.
17. Galanter, “Why the ‘Haves’ Come Out Ahead”; R. Austin, “Bad for Business”;
Winter,
A Clearing in the Forest
. Fish describes law as “at once thoroughly rhetorical and
engaged in effacing its own rhetoricity.” Fish, “The Law Wishes,” 195.
18. Baker, “Language Acculturation Practices,” 134–135.
19. Id., 134.
20. Id.
Notes to Pages 203–214
269

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21. Id. In his helpful comments on this study, Baker also suggested how the struc-
ture of law school language as described in this research might reinforce the marginalization
of traditional outsiders, while also leaving them with a sense of internal conflict and alien-
ation. Id., 137–140. He counsels against despair, however, pointing out that outside of the
first-year classroom there are numerous other possible sites in law schools for resistance
to the dominant vision conveyed in formal training.
22. Hirsch, “Making Culture Visible,” 127–128. Hirsch contrasts the core pedagogy
of anthropology, which pushes students to problematize their own cultural assumptions,
with that of law.
23. I include both students from traditionally excluded groups and scholars from
other disciplines in my category of “outsider” here.
24. Winter, 
A Clearing in the Forest
, 331. In an insightful passage, Winter takes criti-
cal legal theorist Duncan Kennedy to task for ceding the ground of unconscious cultural
categorization by concentrating too much on judges’ overtly political motivations: “The
truly radical insight is that judges are ideological precisely when they are not acting in
an overtly political way. The insight that categorization is socially motivated means that
categorization . . . is always a normatively loaded process.” Id., 331. Susan Philips has
demonstrated that this tacit ideological loading goes beyond processes of categorization
to the structuring of language in use. Philips,