The Language of Law School This page intentionally left blank

Theory of the Trial
; for examples of creative, alternative approaches to teach-
ing and studying legal discourse, see Amsterdam and Bruner, 
Minding the Law
; Cunningham,
“Lawyer as Translator”; Davis, “Law and Lawyering” and “Contextual Legal Criticism.” These
kinds of approaches open the door to one way that legal pedagogy could help transform
the profession, perhaps incrementally, from within; students would still learn the core
“grammar” of legal discourse, but would also receive extensive education on diverse ways
of deploying it in practice.
52. As Baker, who is quite critical of some aspects of legal pedagogy and discourse,
notes:
Although it is certainly possible, indeed likely, that rule-based reasoning . . . provides
an impoverished account of moral decision-making, it is difficult to imagine legal de-
cision-making that does not rely on some degree of abstraction. . . . Legal analogies
may debilitate and deform the more original and authentic accounts of the underly-
ing human conflict, but it is hard to see why legal analysts would not want to be guided,
at least in part, by the prior deliberations and vicarious exemplars of other legal pro-
fessionals. (Baker, “Language Acculturation Practices,” 145–146)
He goes on to add that an ability to conceive and articulate the arguments on each side of
a combative argument is a necessary skill for attorneys, and so must be taught in some
form or other (although he urges that professors become more thoughtful about this). In
other words, some of these features of legal discourse are indeed part of the core language
taught to all initiates.
53. Garth and Dezalay, 
The Internationalization of Palace Wars
; Goodale, “The Glo-
balization of Sympathetic Law”; Nader, 
The Life of the Law
; Santos and Rodriguez-Garavito,
Law and Globalization from Below
; Riles, 
The Network Inside Out
.
54. Lazarus-Black, 
The Vanishing Complainant
; Merry, 
Human Rights and Gender
Violence
.
55. See Greenhouse et al., 
Ethnography in Unstable Places
; Nader, 
The Life of the Law
.
56. See Winter, 
A Clearing in the Forest
, 331. One of the most interesting features of
legal language is its use of some very common linguistic features: analogy, for example,
and “reasoning through cases.” These features are found in other fields, including psycho-
analysis, medicine, and anthropology. Brenneis, “Telling Theories”; Forrester, “If 
p
, Then
What?” Yet the same forms lead to quite different overall discursive practices and results,
as can be seen if we contrast Hirsch’s description of education in anthropology with the
description here of legal education. Hirsch, “Making Culture Visible.” In anthropology,
analogy and serial case discussions are used to open a field for exploration, unsettling taken-
for-granted cultural canons and prejudices. Though there are certainly anthropology-
internal hierarchies and canons, there is no organized adjudication of the analogies used
by professors and students, nor is a particular sequence of cases inevitably prescribed as
the only possible official precedential genealogy. (Perhaps the closest parallel is the sequence
by which histories of the field and subfields are taught and described in scholarly writing,
proceeding inevitably through certain figures—Malinowski, say, or Boas. But if a profes-
sor chooses to skip them and start the history elsewhere, the class or text will not be in-
validated by a higher authority.)
Colleagues who study comparative professions have commented to me that they see
no difference in kind between legal and other professional discourses, pointing to some
basic structures of reasoning or closed expert terminologies that law shares with other fields.
I would not deny this, and there are some interesting insights to be gleaned by observing
these similarities. But it is also important to acknowledge some crucial contextual differ-
ences among the professions as well, so that, for example, in law the use of analogy and
274
Notes to Page 221

---

cases occurs in a quite singular linguistic-institutional context, which I have endeavored
to convey in this volume. There are certainly levels of authorizing hierarchy in most fields,
but the role of the state in monitoring and ratifying interpretive sequences in law, in com-
bination with the particular canons used for contextualizing written texts, give to legal
language a flavor all its own. (French and Italian, for example, share many features, and it
is important to take note of them. However, speaking French is not the same thing as speak-
ing Italian. See Morris, “Not Thinking Like a Non-Lawyer,” for a similar argument.) This
is not to exalt the form of legal reasoning as superior (in fact, I have indicated ways that it
closes and limits possibilities as compared with other, arguably similar discourses). But it
is to argue that one must not transpose an apparently similar semiotic form (analogy) from
one discourse to another, assuming transparency, without a careful look at the institutional
and metalinguistic contexts that give it meaning in each. I should add, lest the reader think
that I have singled out legal discourse for criticism, that social scientists who attempt to
study law without attempting to grasp the internal mandates of legal discourse can be no
less guilty of fundamental misreadings. It is, in fact, ironically possible that the very fact of
an open-textured semiotic style in fields like anthropology can blind its practitioners to
the strictures of a field like law when they attempt to make their own analogies in efforts
to analyze and understand legal practices.
57. Weinstein, “The Classroom as a Social Context.”
58. Id.; Gurin et al., “Diversity and Higher Education”; see also Hue-Pei and Mason,
“Social Organizational Factors in Learning to Read”; Barnhardt, “Tuning In”; Tharp,
“Psychocultural Variables.”
59. Orfield and Whitla, “Diversity and Legal Education,” 164. This study, which
achieved an 81% response rate, essentially replicated findings of an earlier study by the
authors that had a much lower response rate but also looked at more schools. The Michi-
gan and Harvard students in the later study agreed in substantial numbers that their legal
education had benefited in important ways from racial diversity in classrooms—and this
included white students as well as students of color. The students felt that diversity had
enhanced understanding of the kinds of legal or community issues they would encoun-
ter as professionals, of rights, of criminal justice, and of conditions in various social and
economic institutions pertinent to the legal issues they studied. Diversity in the class-
room was found to enhance how topics were addressed in a majority of their law school
classes. In addition, they reported an enhanced ability to work and get along with mem-
bers of other races and agreed that conflicts over race ultimately had positive or neutral
effects on their learning experiences. The idea that racial diversity and any hypothesized
accompanying need for “political correctness” on the part of white students stifled class
discussion found little support in this study, where no more than 9% of students in ei-
ther school agreed that classroom diversity had any kind of negative effect on class dis-
cussion.
60. One student commented that “cultural and ethnic diversity is more important
in law school than many other studies.” Id., 167. On the strength of numerous studies as
well as other arguments pointing to the beneficial role of diversity in education, the Su-
preme Court recognized the importance of diversity to education in general and law school
in particular in the 
Grutter
 case. The majority opinion took notice of
numerous expert studies and reports showing that . . . diversity promotes learning
outcomes and better prepares students for an increasingly diverse workforce, for
society, and for the legal profession. Major American businesses have made clear
that the skills needed in today’s increasingly global marketplace can only be devel-
oped through exposure to widely diverse people, cultures, ideas, and viewpoints.
Notes to Page 222
275

---

High-ranking retired officers and civilian military leaders assert that a highly quali-
fied, racially diverse officer corps is essential to national security. (
Grutter
, 3–4)
61. Sander, “Systematic Analysis.” Sander finds that only some of the difference be-
tween how white students and students of color fare can be attributed to divergences in
entering credentials. He attributes most of the remaining difference to the results of affir-
mative action, that is, that students of color are not well-matched with the law schools they
attend.
62. Id.; a number of the critiques of Sander’s study, his statistics, and the issue he
raises regarding affirmative action were published in the