The Language of Law School
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The Language of Law School
Learning to “Think Like a Lawyer”
Elizabeth Mertz
1
2007
3
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Mertz, Elizabeth, J.D.

During the first year of law school, students are reputed to undergo a trans-
formation in thought patterns—a transformation often referred to as “learning to
think like a lawyer.” Professors and students accomplish this purported transfor-
mation, and professors assess it, through classroom exchanges and examinations,
through spoken and written language. What message does the language of the law
school classroom convey? What does it mean to “think” like a lawyer? Is the same
message conveyed in different kinds of schools, and when it is imparted by profes-
sors of color or by white women professors, and when it is received by students of
different races, genders, and backgrounds? This study addresses these questions,
using fine-grained empirical research in eight different law schools.
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I
n a fashion that ought to please followers of Carol Gilligan, I began composing
the acknowledgments to this volume long before I started the book itself. This
was because I have at all points felt deeply how much the work depends on a web
of relationships, on the contributions of so many people to whom I feel profoundly
indebted. Before I attempt to do justice to this rich relational context, let me thank
two institutions, the American Bar Foundation and the Spencer Foundation, for
the generous funding that made this project possible. Some of the material from
Chapter 2 is reprinted by permission of The Yale Journal of Law and the Humani-
ties, Vol. 4, pp. 168–173; portions of Chapter 4 appeared originally in Natural
Histories of Discourse, edited by Michael Silverstein and Greg Urban (University of
Chicago Press, pp. 229–249; © 1996 by The University of Chicago. All rights re-
served). Chapter 6 contains material from Language Ideologies: Practice and Theory,
edited by Bambi Schieffelin, Kathryn Woolard, and Paul Kroskrity (pp. 149–162,
used by permission of Oxford University Press; © 1998 by Oxford University Press),
as well as material that is revised by permission from Democracy and Ethnography:
Constructing Identities in Multicultural Liberal States, edited by Carol J. Greenhouse
(The State University of New York Press, pp. 218–232; © 1998 by State University
of New York. All rights reserved). Thanks to the editors who worked on these

curiosity in working across quantitative and qualitative aspects of the study
brought a unique and exciting dimension to the results. And a heartfelt thanks
to the exceptionally talented individuals who did the work of coding, inside and
outside of the classrooms: Jacqueline Baum, Nahum Chandler, Janina Fenigsen,
Leah Feldman, Christine Garza, Carolee Larsen, Mindie Lazarus-Black, Jerry
Lombardi, Kay Mohlman, Robert Moore, and Shepley Orr. Steve Neufeld, Carlos
de la Rosa, and Tom Murphy worked on the quantitative analysis. The tiring task
of transcription was undertaken with care by Diane Clay, Leah Feldman, and Zella
Coleman and her group.
I also thank the “subjects” of this research, the professors and students in the
eight classrooms we studied. Inviting researchers with tape recorders and coding
sheets into one’s classroom takes guts, and the professors who did so deserve com-
mendation for their willingness to take some risks in order to help advance our
understanding of the teaching process. Having now taught law school classes my-
self, I have a better appreciation of the courage it took to allow us to observe and
record in their classrooms.
I feel deeply grateful to the American Bar Foundation, my home since the
project began and one of the major funding sources for this research. The Foun-
dation has provided a uniquely congenial setting for this kind of work, with one of
the premier groups of sociolegal scholars in the country. I have enjoyed and learned
from my colleagues in that community, and I thank them for providing such an
encouraging and intellectually rich context in which to do research. I am particu-
larly grateful to the director of the Foundation during the time of this project, Bryant
Garth, for substantial support and encouragement, and for the vision of interdis-
ciplinary community that he has helped to make real. I owe much to all of my
colleagues, past and present, at the ABF for their incisive critiques and their humor,
Acknowledgments
xi
and above all for their exercise of maturity, reason, and care in managing the ups
and downs of institutional life. For colleagueship above and beyond the call of duty,

and taught me about the problems and possibilities of the law school environment,
as did many other friends, including my Articles Office “family”: Rick Sander, Krista
Edwards, Sue Tuite Kirkpatrick, and Mark Challenger. As my third-year research
supervisor, David VanZandt encouraged my initial interest in this project. While
a professor at Northwestern, I also benefited from the intellectual insights and
support of the short-lived but productive “Friday Faculty” group, including my
friend and coauthor Cynthia Bowman, Jane Larson, Bob Burns, Clint Francis,
Stephen Gardbaum, Ray Solomon, and Len Rubinowitz (known to generations of
Northwestern law students and junior faculty, including me, as an exceptionally
supportive colleague and friend). I warmly thank Michael Perry and Kathy Abrams,
fellow NU departees, for sharing their perspectives in discussions pertinent to this
work, and a number of other colleagues on whom I leaned for insights and advice,
including Vic Rosenblum, Marshall Shapo, Theresa Cropper, Laura Lin, Charlotte
Crane, Helene Shapo, Dick Speidel, Judy Rosenbaum, and Ron Allen.
xii
Acknowledgments
To the inspiring groups of students in my Law and Language, Law and An-
thropology, Legal Process, and Legal Profession classes at Wisconsin and North-
western, my gratitude for their invigorating discussions and research on topics
pertinent to this study. I have also gained fresh perspectives from the graduate stu-
dents with whom I’ve worked, with particular thanks to Jonathan Yovel, Jason
Freitag, Susan Gooding, Mark Goodale, Elizabeth Hoffman, Maud Schaafsma, and
Scott Parrott.
Outside of my home institutions, I have drawn on a wealth of knowledge and
support from a network of colleagues from whom I have been so fortunate to learn:
Martha Fineman, scholar and mentor extraordinaire, to whom I owe a special debt
of gratitude; David Wilkins and Joyce Sterling, my “legal profession” buddies;
Martha Minow, who provided invaluable practical aid and encouragement at the
outset of the project; and the gifted group of legal anthropologists, law-and-
society scholars, and anthropological linguists from whom I continue to learn: Carol

my family, often providing the missing pieces we needed to keep schedules and
lives running smoothly: Eva, Karen, Joe, Jim, Kathy, Carol, Jeanne, Dave, Laurie,
Acknowledgments
xiii
Dean, Connie, Terry, Mary Jo, and the rest of the Skokie extended family who have
been part of the “village” that has helped to raise my children. I will also always
remember with appreciation and great affection the invaluable support I received
from Katherine Shea, including her tireless renditions of Irish lullabies for my
colicky newborn Becca as I struggled in that time to balance work and family.
And to my children, Jenny and Becca, I owe the debt of all working moth-
ers—that they have shared me with my work, and that my connection with them
continually brings renewal and joy to my life. Becca, born after I received my JD,
knows the law school as one of the places where I work, and she is a veteran of many
office visits, which she has weathered with characteristic good humor and artistic
contributions. I have learned from her about resilience and resourcefulness in the
face of change. Jenny was two years old when I began law school, and she experi-
enced much of it with me, from Estates and Trusts class to the Law Review office.
From her early willingness to last through the occasional Legal Writing class to her
current vibrant concern about politics and injustice, I have learned alongside and
from her about law and society. I dedicate this work to my daughters.
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Contents
Notes on Transcription xvii
I INTRODUCTION
1. Entering the World of U.S. Law 3
2. Law, Language, and the Law School Classroom 12
3. Study Design, Methodology, and Profile 31
II SIMILARITY
:
LEGAL EPISTEMOLOGY

(.) Enclosed dot indicates a very short untimed pause.
// // Parallel lines indicate overlapping speech.
[[laughter]] Double brackets indicate backchannel sounds, laughter,
etc. (Occasionally backchannel comments are indicated
this way for ease of reading; more usually they are
indicated using //parallel lines// to mark overlapping
backchannels.)
emphasis Underlining indicates emphatic stress.
() Single parentheses indicate inaudible or barely audible
speech.
[says name] Italicized material in italicized brackets is descriptive
commentary, summaries of omitted portions, and
metacommentary from EM regarding transcript, as well
as paraphrases and substitutes where necessary to protect
confidentiality.
[ . . . ] Ellipses in italicized brackets indicate omitted material.
*oh* ((*sarcastically*)) Italicized material in double parentheses describes
aspects of speech delivery (intonation, etc.); asterisks
mark the relevant transcript passage.
You- Hyphen indicates a cut-off, usually one that is turn-
internal.
I--
--you Parallel dashes refer to coordinated speech, where one
speaker stops before finishing an utterance, and another
speaker begins speaking smoothly immediately thereafter
(i.e., immediately latched utterances).
Notes on Transcription
xvii
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I

erasure or cultural invisibility, as well as an amorality, that are problematic in a
2
Introduction
society seeking to be truly democratic. Yet, at the same time, we can see a genius
to some aspects of this at once abstract and concrete legal language.
We begin, in Part I, by setting the scene for the rest of the book. Chapter 1
outlines the central conclusions of the study and then takes the reader into the law
school classroom, stepping into the shoes of law students who are beginning to learn
legal language. Chapter 2 provides a more detailed statement of the study’s research
agenda and of the cross-disciplinary perspectives that inform it. Chapter 3 explains
the methodology used and sketches an initial profile of the data.
Entering the World of U.S. Law
3
1
..
Entering the World of U.S. Law
3
M
uch has been written about the first year of law school. There have also been
many attempts to define core aspects of U.S. legal reasoning. This book
considers these two issues together, using a study of the initial law school expe-
rience to shed light on legal worldviews and understandings. One focus of this
research is the content of U.S. legal epistemology (i.e., distinctively legal ways
of approaching knowledge), as revealed in the training of initiates into the
world of law. The study uses close analysis of classroom language to examine the
limits that legal epistemology may place on law’s democratic aspirations. It also
asks whether legal training itself may impact the democratization of the legal
profession—that “public profession”
1
that figures so prominently in the govern-

the turns in each class. They also qualitatively assessed aspects of developing class-
room dynamics. The overall results provide our first detailed observational data
on racial dynamics in law school classrooms; they also are the first to allow com-
parisons across a full range of diverse law schools. Although there has been more
observational study of gender dynamics in law school classrooms than of race,
previous studies of gender did not use methods that permitted fine-grained analy-
ses of aspects of talk in classrooms beyond broad tallying of numbers of turns.
Working from transcripts, we have been able to track both differences and simi-
larities among a broad range of law school classes. A combination of qualitative
and quantitative methods allows us to explicate in detail the language of U.S. law
as it is taught in diverse law schools.
4
The first part of this chapter presents, in summary form, the core argument of
the book. The second part takes the reader inside the law school classroom, sketch-
ing more concretely the kind of discourse found in U.S. law teaching. Our focus is
on the very first semester of law school, when students are initiated into a new way
of thinking and talking about the conflicts with which they will be asked to deal as
attorneys.
Legal Epistemology and Law Teaching
Although much of this book deals with the nuances and complexities of analyzing
U.S. legal language, its central conclusions can be stated in seven relatively simple
propositions:
1. There is a core approach to the world and to human conflict that is per-
petuated through U.S. legal language. This core legal vision of the world and of
human conflict tends to focus on form, authority, and legal-linguistic contexts
rather than on content, morality, and social contexts. We can trace this view
through close analysis of the content and structure of the language found in
law teaching and written law texts, as law professors inculcate this distinct
approach and as law students learn to speak it. In the law school classroom,
initiates to the legal profession take their first steps into a world in which the

that are used to bridge concrete cases and abstract doctrines. A standard legal
reading conceals the social roots of legal doctrines, avoiding examination of
the ways that abstract categories, as they develop, privilege some aspects of
conflicts and events over others. Instead, the core issue is one of textual analy-
sis—of parsing written legal texts for the correct reading, which is focused on
issues of linguistic authority. A new orientation to the world is subtly conveyed
through the filtering linguistic ideology implicit in law school training.
4. There is a “double edge” to the approach found in U.S. legal language; it
offers benefits but also creates problems.
5
One benefit of this approach is that
the language appears to ensure the same treatment for everyone, regardless of
the specifics of their situation, and this appearance can sometimes become a
reality. U.S. legal language also generates an enormously creative system for
processing human conflict, one that can at times provide the flexibility needed
to accommodate social change and the demands of different situations while
also promoting some stability and predictability. However, there are also prob-
lems with this approach. In some cases, it obscures very real social differences
that are pertinent to making just decisions; it can also create an appearance of
neutrality that hides the fact that U.S. law continues to enact social inequities
and injustices. Through an anthropological lens, we can identify these twin
difficulties as a simultaneous problem of “cultural invisibility and dominance”;
that is, some aspects of context and cultural viewpoints become invisible while
others dominate (and this process itself is largely invisible, hidden beneath the
apparent neutrality of legal language and approaches to reading written texts).
6
6
Introduction
Similarly, legal language in many ways discourages students from overt con-
sideration of morality, while still packing a hidden normative punch.

temology, furthering attempts to uncover and explicate a basic structure to U.S. legal
reasoning begun some time ago by scholars such as Edward Levi.
8
This part of the
analysis is, in my view, distinct from the ensuing examination of the power dynam-
ics and capitalist epistemology that I hypothesize as specific to U.S. law. Taken on its
own, the linguistic analysis maps the way language interacts with and embodies so-
cial worldviews and institutional practices, and as such speaks to issues of language
and epistemology apart from any consideration of power. When it focuses on the
nonneutral character of legal language and reasoning, this study does move on to
also consider the interaction of language with social power and democratic ideals,
building from scholarship in anthropological, legal, and social theory. However, I
also argue that the language of law has its own dynamics that are not transparently
reducible to issues of power or social structures. In this sense, this analysis rejects
visions of legal language as either an entirely autonomous arena, divorced from so-
cial impacts, or as a mere reflex of external social forces. Rather, combining both lin-
guistic and social perspectives, we can find in the first-year law school classroom a
fascinating prism through which to view a part of the world of U.S. law.