The Language of Law School This page intentionally left blank

what’s
fair
 to 
what the law says you can or can’t do
.
At the end of your first semester comes exam time. Now you have a chance to
demonstrate your newly acquired legal vision of the world. In exam after exam,
you are asked to respond to hypotheticals, stories made up by your professors. These
stories are often replete with pathos and drama. Your job is to ignore as much of
the emotional content as you can while hunting for the details that are relevant to
the legal tests and frames, steadfastly averting your gaze from the human perfidy,
misery, justice, or injustice found in the story. Once you’ve done that, if you’re
very careful, you can throw in a little discussion of fairness, disguised as a “policy”
argument, and sometimes get some extra points.
Your criminal law exam involves a hypothetical in which a woman is “beaten,
raped, and killed in descriptions pornographically detailed.”
13
 If you have yourself
been beaten or raped, you may find this question a bit difficult to answer. But your
performance will depend on your ability to dispassionately analyze the details pro-
vided to you for traces of “facts” needed to satisfy one or another legal test. Your
constitutional law exam requires you to read “the lengthy text of a hate-filled po-
lemic” filled with racist slurs against African American and Jewish people, and then
to argue why such a polemic should be protected by the First Amendment.
14
 Again,
if you are African American or Jewish (or someone with strong feelings about rac-
ism), this may require an internal struggle of some dimension, but only those stu-
dents who can rise above such emotional reactions to the lofty heights of legal
analysis will ace the exam. You may be able to succeed despite this internal struggle
by putting aside your reaction for the moment and promising yourself that you
will attend to it at some future time. You may even join a small group of students
afterward in protesting the use of such questions on exams. But note that at the
moment of demonstrating your newfound skill at legal thinking, you have found
a way to put aside emotion and social context in order to fit facts to legal tests in
dispassionate fashion.
You may find yourself feeling somewhat ambivalent about this newfound
ability to rise above the heated details of social conflict. On the one hand, it gives
you a very useful tool; in employing this somewhat removed vision, this legal frame,
you can on some occasions rise above your own prejudices and predispositions.
This new habit may actually force you to hear perspectives and ideas that you might
previously have dismissed too rapidly. Before rushing in to take one side or the
other, you find that you can stand back and weigh aspects of the problem at hand
with an eye to realistic solutions and possibilities. Perhaps in a perfect world no
one would ever cheat customers. But given that this happens, what level of cheat-
ing are we going to permit before we bring the full apparatus of the law to bear?
Given that in the real world, it takes lots of time and money to go to court, and

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Entering the World of U.S. Law
11
that courts make mistakes, do we really want the legal system to police this or that
kind of injustice or unfairness? To what degree are we going to require a certain
level of maturity, to respect individuals’ rights to make their own choices—which
also means expecting them to accept the consequences of their own decisions? On
the other hand, when are we going to recognize that the playing field isn’t always
level, and that certain players lack the fundamental power required for their deci-
sions to be truly voluntary? And so on. Sometimes you may feel pleased that your
thinking now allows you to overcome initial passionate, but perhaps misguided,
reactions. At other times, you wonder if, trapped in the maze of “ifs” and “thens”
and “maybes,” you’ve lost touch with some fundamental aspects of what brought
you to law school in the first place: concerns with justice, fairness, or helping
people.
15
 You entered law school with the ambition of helping people and eventu-
ally performing public interest work aimed at improving poor people’s access to
justice. But more and more, you find yourself thinking that maybe you’ll just start
out in a lucrative job in a large law firm, at least for a little while—maybe just until
you pay off some of your massive law school debt.
16
To introduce the kinds of issues with which this study is concerned, I have
painted a stark picture, omitting many of the nuances and complexities. Although
this portrait does not do justice to the wide variations in emphases, teaching styles,
and attitudes to be found in today’s legal academy, it captures some core aspects
of the initial law school experience and of the change required of law students during
their initiation into the legal arena. The detailed discussions to follow provide more
of the subtleties and complications needed for a fuller understanding of the law
school process.

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12
Introduction
2
.
.
Law, Language, and the Law
School Classroom
12
I
n this chapter we survey the literatures and scholarship that provide the theo-
retical and empirical foundations for this research, focusing on issues of language
and law. It is through language that social problems are translated into legal issues.
At the broadest level, this study brings together two related inquiries: Is there a
distinctive approach to translation embodied in the canonical legal language taught
to law students? And if so, how do people learn to use that distinctive language as
they become legal professionals—in their first months of training to be the law-
yers and judges whose voices and writings perform the act of legal translation? To
address these questions, we need to develop an understanding of how language op-
erates in legal and other social settings. After all, it is through language that the law
works to shape our lives, and it is through language that people, including profes-
sionals, come to understand the world in particular ways.
Thus, in the law school classroom, a seemingly narrow domain, we actually
find a fascinating nexus of wider processes. This study uses a close analysis of law
school language to ask broad questions about the role of language in the constitu-
tion of selves, law, and society. It is obvious that an adequate reply to such ques-
tions would demand interdisciplinary investigations; accordingly, this research
bridges a number of divides. At the theoretical level, I draw on work in linguistics,
anthropology, legal theory, social theory, educational research, and psychology.
In terms of methodology, this study unites interpretive, linguistic, and quantita-
tive analyses to uncover overarching patterns in the classrooms as well as the nu-
anced meanings that animate those patterns. This chapter provides a brief overview
of scholarship that has examined the role of language in society and culture, in
socialization practices, and in education; it concludes with a discussion of the role
of language in law, legal reasoning, and legal education. The resulting synthesis of

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Law, Language, and the Law School Classroom
13
insights from multiple disciplines provides the foundation for the model of lan-
guage in social context used in this study. We begin by delineating the central
questions animating this project, and then proceed to locate these questions within
frameworks provided by previous scholarship.
Similarities and Differences
As noted in Chapter 1, this study focuses on Contracts classes in eight law schools
from across the country. Included among the law schools were some of the most
elite in the country and some with more local reputations, public and private, urban
and rural, small and large, and schools with night classes for part-time students.
The professors in the study also varied in background, philosophy, age, race, and
gender, as did the students. Coders taped and took notes on interactions for an
entire semester in these classes. To capture the initial stage of students’ introduc-
tion to legal approaches, we always observed during the first semester. The tapes
were then transcribed and analyzed both qualitatively and quantitatively. I asked
two fundamental questions of the data we collected: What (if any) similarities are
there across the widely variable classrooms of this study? And what is the shape of
any differences among them?