The Language of Law School This page intentionally left blank

Rules
versus Relationships
 (views of small claims court judges); Pierce, 
Gender Trials 
(views of
attorneys and paralegals); Sarat and Felstiner, 
Divorce Lawyers
 (views of divorce attorneys
about law and the legal system); Sarat, 
When the State Kills
 (views of death penalty defense
attorneys).
9. Scholars in sociolegal studies have for some time been demonstrating that law in
the United States is anything but a level playing field. Galanter, “Why the ‘Haves’ Come
Out Ahead.” In the legal academy, other successors to the legal realist movement from the
fields of critical legal studies, feminist jurisprudence, and critical race theory, along with
other critical scholars, have added strong critiques pointing out the ways that apparently
neutral aspects of law are in fact heavily value-laden. See, e.g., Bartlett and Kennedy, 
Femi-
nist Legal Theory
; Cover, 
Justice Accused
; Crenshaw et al., 
Critical Race Theory
; Fineman,
Illusion of Equality
; Kelman, 
Guide to Critical Legal Studies
;
Critical Legal Studies 
special
issue;
1
 Williams, 
Alchemy
. There have been allied critiques of the methods and content of
American legal education. See, e.g., Bell, “Black Students in White Law Schools”; Hantzis,
“Kingsfield and Kennedy”; Kalman, “To Hell with Langdell!”; D. Kennedy,
 Legal Educa-
tion and the Reproduction of Hierarchy
; Menkel-Meadow, “Portia in a Different Voice”;
Romero et al., “The Legal Education of Chicago Students.”
10. See, e.g., MacKinnon,
 Feminism Unmodified
; Althouse, “The Lying Woman”;
Ansley, “Race and the Core Curriculum in Legal Education”; Frug, “Re-Reading Contracts”;
Lawrence, “The Id, the Ego, and Equal Protection”; Matsuda, “When the First Quail Calls.”
There are actually three issues here: (1) the “on the ground” administration of justice
in multiple legal and quasi-legal settings; (2) the implicit skewing hidden within formal le-
gal categories, epistemology, and forms of discourse; and (3) the differential inclusion of
“outsider” students and perspectives from law school classroom discussions. Interestingly,
the second issue, which is the discourse structure of legal language, mediates the other two;
it is one of the most obvious bridges connecting the two quite different social settings (law
in practice, law school training). I would argue that the invisibilities and silences that emerge
during the inculcation of legal language in law school classrooms become hardened and
habitual through multiple means in the administration of justice (linguistic and nonlinguistic,
to be sure, but at least one of the linguistic means is the core of formal metalinguistic struc-
turing outlined in this volume). In the process, it becomes less relevant what a student’s
background is, for once someone has thoroughly internalized the metalinguistic system of
legal reasoning, she or he will begin to habitually marginalize some aspects of social context
and morally grounded reasoning. (This does not mean that he or she will inevitably turn
away from alterative languages and points of view—even within the rich realm of diverse
legal professional “dialects”—but it does mean that a new kind of “bilingualism” will be
necessary, and it will take some additional effort to maintain these multiple perspectives.)
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Notes to Page 14

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11. After feminist scholars called attention to this particular doctrinal problem, there
was a move away from a “reasonable man” and toward a “reasonable person” standard.
However, a mere lexical substitution may not do the trick if the unmarked category “per-
son” still tends (as unmarked categories often do) to indicate the assumptions associated
with the hegemonic stereotype of a typical “person,” that is, a male. On marked and un-
marked categories, see Silverstein, “Language and the Culture of Gender”; Mertz, “Beyond
Symbolic Anthropology.” On the issue of how these unconscious assumptions infiltrate
the notion of the reasonable man or person, see, e.g., De Cosse, “Simply Unbelievable:
Reasonable Women”; Nourse, “Passion’s Progress.”
12. Some anthropologists and others may doubtless insist that what I describe as
“gender” here should properly be denominated “sex.” I have chosen to follow the domi-
nant convention used in the legal literature, from formal doctrines regarding gender dis-
crimination through the scholarly literature on gender in law and law schools, partially
with an eye to rendering the text more accessible. On issues of essentialism, see, e.g.,
Spelman,