Inside the law school classroom: Toward a new legal realist pedagogy

Vanderbilt Law Review

Volumn 60, Issue 2, 2007, Pages 483-513

  Mertz, Elizabeth ^a,b,c  

^a AMERICAN BAR FOUNDATION   (United States)

^b UNIVERSITY OF WISCONSIN LAW SCHOOL   (United States)

^c UNIVERSITY OF WISCONSIN   (United States)

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EID: 35349007621     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (152)

1. For a general description, see Howard Erlanger et al., Foreword: New Legal Realism Symposium: Is It Time for a New Legal Realism?, 2005 WIS. L. REV. 335,
2. and in particular, see Stewart Macaulay, The New Versus the Old Legal Realism: "Things Ain't What They Used To Be", 2005 WIS. L. REV. 365, 391-403.
3. Since 1964, the U.S. Law and Society Association has been working actively to bring together social scientists and law professors interested in interdisciplinary research on law and to publish peer-reviewed material in its flagship journal, The Law & Society Review. International interest in the area is apparent from the 2006 joint meetings to be held in Berlin which will bring together law-and-society scholars from around the world.
4. See American Bar Foundation, Home Page, http://www.abf-sociolegal. org (last visited Jan. 6, 2007). The opening paragraph of the ABF's Home Page reads: Established in 1952, the American Bar Foundation is an independent, nonprofit national research institute committed to objective empirical research on law and legal institutions. This program of socio-legal research is conducted by an interdisciplinary staff of Research Fellows trained in such diverse fields as law, sociology, psychology, political science, economics, history, and anthropology.
5. Id.
6. For example, Vanderbilt law professor Tracey George advocates "a model-based approach coupled with a quantitative method" as the preferred way of studying law empirically, urging that scholars combine "a positive theory of a law or legal institution," which should then be tested using "quantitative techniques developed in the social sciences." Tracey George, An Empirical Study of Empirical Legal Scholarship: The Top Law Schools 1 (Vanderbilt Univ. Law Sch. Law & Econ. Working Paper No. 05-20, 2005), available at http://ssrn.com/abstract=775864. However, ABF Director (and Northwestern sociology professor) Robert Nelson notes that "theoretically driven research that uses multiple methods can produce stronger validity claims, can better illuminate the social mechanisms through which law operates, and may lead to research findings that more readily translate to broader publics." Posting of Robert Nelson to Empirical Legal Studies, http://www.elsblog.org/the_empirical_legal_studi/2006/06/ combining_quant.html (June 21, 2006, 16:44 EST). Cornell law professor Michael Heise, a founder of Empirical Legal Studies, similarly notes: I've always been of the mind that different methodological approaches possess different blends of strengths and weaknesses and that none possess an exclusive lock on advancing knowledge. To be sure, certain research questions, designs, and data might lend themselves more appropriately to one methodology or another. But using 'multiple methods,' where appropriate and helpful, strikes me as a good idea. Posting of Michael Heise to Empirical Legal Studies, http://www.elsblog.org/ the_empirical_legal_studi/2006/06/combining_quant.html (June 21, 2006, 15:59 EST);
7. see also The New Legal Realism: It's Not About Breakfast Blog Forum, http://www.elsblog.org/the_empirical_legal_studi/blog_forum/index.html (June 19-23, 2006). There are a variety of ways of defining "empirical, " but what they have in common is an emphasis on experience and observation, which are core features of a variety of social science methods. In disciplines such as history, of course, the original data are of necessity more archival, but this can be true in other fields as well.
8. In their well-known text on the use of social science in legal decisions, Monahan and Walker discuss the way social science studies generally make trade-offs in methodological precision. When researchers attempt to achieve higher "internal validity" within a study, they use experimental kinds of methods that permit them to gain tight control of the research situation. When they do that, we can be more certain that the conclusions reached are true of this particular experimental situation. In other words, the effects of one kind of factor on an outcome are more certain because the researcher has created an artificial situation in which only that factor varies-as, for example, if two otherwise similar groups of college students are asked to complete the same task but given slightly different instructions. We are surer that the variation in instructions is the cause of any differences we find in how the students do the task, because we have held constant other kinds of factors that might influence the outcome. However, if we want to assume that the average juror will make a similar decision, we face some great difficulties, because the artificial experimental situation is not real life. Jurors are likely to be more diverse demographically. And we cannot assume that they will make decisions in the same way when faced with a real-life death penalty situation, for example, as they do when they are dealing with a hypothetical situation in an experimental setting. Researchers who aim for higher "external validity" want to be able to generalize what they find in their studies with more certainty to real-life situations. They may decide to settle for less internal validity in order to achieve this: Often a research strategy that yields results high in internal validity does so at the cost of leaving external validity questions unanswered, and vice versa. A study randomly assigning collegiate "jurors" [i.e., college students pretending to be jurors] to deliberate in groups of either 6 or 12 would have high internal validity as a test of the effects of jury size, but would be open to the external validity issue of generalization across persons (college students versus real jurors). A study of "naturally" occurring instances in which real juries have consisted of 6 as compared with 12 jurors would have high external validity, but would leave many internal validity questions (e.g., how were the cases tried . . . ?). The choice of which type of validity to maximize and which to sacrifice is a hotly debated issue in the social sciences. Usually, researchers reach some sort of pragmatic compromise. They trade-off a bit of internal validity to achieve a higher level of external validity, and vice versa. JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW: CASES AND METHODS 66 (6th ed. 2006).
9. Anthropologist Clifford Geertz, for example, long ago made the case that anthropological methods do a better job of capturing what is happening on the ground than do more removed methods. If we want to understand how people perceive their own lives, we may have to stand for a moment in their shoes, rather than imposing our own analytical categories (as will increasingly occur when we move to more structured research instruments). We find this argument in Geertz's famous essay, Local Knowledge: Fact and Law in Comparative Perspective, (first given as the Storrs Lectures at the Yale Law School), where he states: [Fields like anthropology] may have more to offer us in making our way through such perplexities as the shape-shifting nature of the fact/law distinction across cultural traditions and historical phases than supposedly more 'scientific' enterprises, where everything that arises must converge. If there is any message . . . , it is that the world is a various place, various between lawyers and anthropologists, various between Muslims and Hindus, . . . and much is to be gained, scientifically and otherwise, by confronting that grand actuality rather than wishing it away in a haze of forceless generalities and false comforts. CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 234 (3d ed. 2000). In other words, it is easier to catch and understand the divergence between our own thought and that of our research subjects when we live beside them for an extended time, absorbing their way of life and attitudes.
10. See supra note 4 (on the issue of combining methods);
11. see also CHARLES C RAGIN, CONSTRUCTING SOCIAL RESEARCH: THE UNITY AND DIVERSITY OF METHOD 26, 47-52, 78-79, 99-100 (1994) (discussing, inter alia, benefits of data triangulation in which results obtained by use of various methods are brought together, and explaining how to choose research methods to fit questions asked). For an example of a discussion of methodological tradeoffs in the context of a particular kind of research-here,
12. network analysis-see Karen Zwijze-Konnig & Menno de Jong, Auditing Information Structures in Organizations: A Review of Data Collection Techniques for Network Analysis, 8 ORGANIZATIONAL RES. METHODS 429, 435, 437 (2005) (noting that self-report methods are subject to distortions such as producing socially desirable (rather than accurate) answers, forgetting, telescoping, differing interpretations of the questions asked, etc.).
13. See ELIZABETH MERTZ, THE LANGUAGE OF LAW SCHOOL: LEARNING TO "THINK LIKE A LAWYER" (paperback ed. 2007);
14. see also Elizabeth Mertz, Wamucii Njogu & Susan Gooding, What Difference Does Difference Make? The Challenge for Legal Education, 48 J. LEGAL EDUC 1 (1998).
15. As with any study of this scope, the research was conducted by a team that worked to tape and code classrooms, create and code transcripts, and help in phases of data analysis. I am most fortunate to have worked with a very gifted team in this study, including the two Project Managers, Susan Gooding and Nancy Matthews, and Wamucii Njogu, who oversaw the quantitative analysis.
16. Anthropological linguistics and sociolinguistics focus on the details of linguistic interchanges, tracing how language interacts with its social context to convey meaning and impact social events. See generally ALESSANDRO DURANTI, LINGUISTIC ANTHROPOLOGY (1997);
17. PETER TRUDGILL, SOCIOLINGUISTICS: AN INTRODUCTION TO LANGUAGE AND SOCIETY (4th ed., Penguin Books 2000) (1974).
18. For discussions of how these techniques are used to study education, see LINGUISTIC ANTHROPOLOGY OF EDUCATION (Stanton Wortham & Betsy Rymes eds., 2002); THE SOCIAL CONSTRUCTION OF LITERACY (Jenny Cook-Gumperz ed., 2006).
19. THE CARNEGIE FOUNDATION FOR THE ADVANCEMENT OF TEACHING, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (forthcoming 2007) (draft report manuscript, on file with the author). I thank the Carnegie researchers for sharing their results with me prior to official publication. Their study of law school education was conducted under the aegis of their "Preparation for the Professions Program," which also sponsored studies of clergy, engineering, medical, and nursing training.
20. See The Carnegie Foundation for the Advancement of Teaching, Program Areas, http://www.carnegiefoundation.org/programs (last visited January 6, 2007). A team of typically four researchers from the Carnegie Foundation visited sixteen law schools in the United States and Canada. The schools were diverse along a number of dimensions: public versus private, geographical region, selectivity or status ranking, freestanding versus part of a university, historically devoted to black or Native American people, or noted for educational innovation. The research team spoke with personnel, and visited classes of every type; they also examined assessment methods, and interviewed students in each school. In addition, they consulted with well-known scholars of law and of legal education. EDUCATING LAWYERS, supra (manuscript at xxi-xxii (Introduction)). The Carnegie report will be published by Jossey-Bass in 2007 as a book co-authored by William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, and Lee S. Shulman.
21. I here treat the indigenous status hierarchy as the equivalent of any social caste system: it is a system-internal way of differentiating among members, and socially constructed. By contrast, people inside these hierarchical systems understand the status categories as "natural" or as tracking inherent worth.
22. Because of the intensive nature of this research, the usual practice in classroom ethnographies of this kind is to study only one or two classrooms. By expanding to classrooms in eight different schools, we created a larger range of comparative cases than has been generally obtained in this sort of research. The result is obviously not a random sample of the kind used by sociologists as a basis for standard statistical analyses, but rather a rich comparative data set. On the other hand, because we coded each turn, we can analyze the interactions quantitatively, in general using descriptive statistics.
23. One of the many enjoyable aspects of doing this kind of research is that it has inadvertently put me into a kind of tacit conversation with law students at a number of law schools, who thus far seem to be the only other source of extensive observational reporting on law school classroom dynamics. Enterprising law students at Yale, Harvard, and the University of Chicago have organized to track gender dynamics at their law schools. The Yale students have now in fact performed a second wave of the research. See YALE LAW WOMEN, YALE LAW SCHOOL FACULTY AND STUDENTS SPEAK ABOUT GENDER: A REPORT ON FACULTY-STUDENT RELATIONS AT YALE LAW SCHOOL (2002), available at http://www.yale.edu/ ylw/YLW%20Gender%20Report.pdf (last visited January 6, 2007);
24. Adam Neufeld, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13. AM. U. J. GENDER SOC. POL'Y & L. 511 (2005) (detailing a study of how female and male experiences at Harvard Law differ and exploring what factors play a role in these differences);
25. Catherine Weiss & Louise Melling, The Legal Education of Twenty Women, 40 STAN. L. REV. 1299 (1988) (describing both anecdotally and statistically the experiences of twenty female Yale Law students and offering suggestions to improve legal education);
26. Karen Wilson & Sharon Levin, The Sex-Based Disparity in Classroom Participation, THE PHOENIX, Nov. 26, 1991, at 3 (reporting, in a University of Chicago Law School student newspaper, that men speak in class about twice as often as women). Although student-run efforts generally do not cover large numbers of class sessions for any individual class (nor can they perform more complex research tasks such as tracking timing of turns, etc.), they do manage to report on a wide variety of classes within each school. Later studies have added innovations such as having a male and female coder simultaneous code in any class session that is being observed, tracking whether turns were volunteered or called-on, and reporting outcomes as ratios rather than as raw numbers. I have very much enjoyed following the growing conversation among law students as to how best to study and track classroom dynamics, which I view as one hopeful avenue for encouraging an engaged and more sophisticated exposure to empiricism for law students: As an anthropologist who is also participating in the research in this area, I have watched with great interest a process by which student-run observational work appears to have built on itself over the years, with each new study incorporating and improving on innovations from prior efforts (as well as from other sources). At a time when there is a great deal of discussion of how best to encourage empirical work in the legal academy, I think we should take note of this kind of process; it is tempting for trained social scientists to express only skepticism about efforts by legal professionals in this regard, but absent formal graduate social science training for everyone involved, it might be important to view the public discussion itself as a forum for genuine interdisciplinary communication and advancement.
27. MERTZ, supra note 8, at 266 n.84. In this regard, some of the students may be ahead of their professors in coming to understand some of the real difficulties and intricacies of using empirical research to address policy issues.
28. See Elizabeth Mertz & Bernard Weissbourd, Legal Ideology and Linguistic Theory: Variability and its Limits, in SEMIOTIC MEDIATION: SOCIOCULTURAL AND PSYCHOLOGICAL PERSPECTIVES 261, 265 (Elizabeth Mertz & Richard Parmentier eds., 1985);
29. Elizabeth Mertz, Tapping the Promise of Relational Contract Theory: "Real" Legal Language and a New Legal Realism, 94 NW. U. L. REV. 909, 922 (2000).
30. Examples of pragmatic anchoring of speech include what linguists call "deictics," which locate us in time and space as we communicate. Thus, locatives such as "here" and "there," personal pronouns such as "I" and "you," and verb tense ("I will tell him" versus "I told him") depend on their contexts of use for important parts of their meaning.
31. There is an interesting debate over the issue of how or whether to analyze power dynamics when looking at language. See MARIANNE CONSTABLE, JUST SILENCES 45-56 (2006). My book on the language of law school notes that: Of course, where law intercedes, issues of power are never very far away. But it is important to recognize as well how linguistic mediation introduces an irreducible dynamic of its own, imbued with cultural creativity and responsive to particular contexts and people. In this sense, I take seriously Constable's admonition against reducing our understanding of law and justice to a monolithic focus on power.
32. MERTZ, supra note 8, at 217.
33. The Carnegie Foundation team visited sixteen different law schools, which permitted observation of classes across a still wider variety of schools and topics (although for shorter periods of time), and, as noted above, came to some quite similar conclusions. EDUCATING LAWYERS, supra note 11 (manuscript at xxi (Introduction)).
34. See Elizabeth Mertz, Recontextualization as Socialization: Text and Pragmatics in the Law School Classroom, in NATURAL HISTORIES OF DISCOURSE 229, 245-46 (Michael Silverstein & Greg Urban eds., 1996);
35. Elizabeth Mertz, Teaching Lawyers the Language of Law: Legal and Anthropological Translations, 34 J. MARSHALL L. REV. 91, 101-02 (2000).
36. For a discussion of the concept of "liminal" states, which characterize the period of initiation into a new social status, see ARNOLD VON GENNEP, THE RITES OF PASSAGE (1960), and also VICTOR TURNER, DRAMAS, FIELDS, AND METAPHORS (1974).
37. See Peter Finkelstein, Studies in the Anatomy Laboratory: A Portrait of Individual and Collective Defense, in INSIDE DOCTORING 22, 22-23 (Robert H. Coombs et al. eds., 1986).
38. Id.
39. Actually, more accurately, I should say "metapragmatic" here, but I have found that this particular technical word has a very adverse affect on many legal audiences. (Something I have trouble understanding, given that legal professionals deal with all manner of arcane technical vocabulary.) By "metapragmatic," anthropological linguists mean to indicate the way language functions at a "meta" level to monitor and transmit information about the pragmatic meaning that we convey continually when we communicate. For example, if I say, "I don't want to fight with you, I'm just trying to explain," I am attempting to use the metapragmatic level to reorient your understanding of the ongoing flow of our speech. I am saying, "Don't interpret the contextual signals I am sending as angry, please, interpret them as a mere attempt to explain." This is a meta-level linguistic signal (language referring to itself).
40. Richard Parmentier describes this phenomenon in Belauan political oratory. See Richard Parmentier, The Political Function of Reported Speech: A Belauan Example, in REFLEXIVE LANGUAGE 261, 284 (John Lucy ed., 1993). Michael Silverstein, from whose work many of these ideas originally developed, discusses the issue in his early paper.
41. See Michael Silverstein, Metaforces of Power in Traditional Oratory, Lecture to the Yale University Anthropology Department (Feb. 1981) (transcript on file with the author).
42. See, e.g., James Collins, Differential Treatment and Reading Instruction, in THE SOCIAL CONSTRUCTION OF LITERACY 138, 144 (Jenny Cook-Gumperz ed., 2d ed. 2006);
43. James Collins, Language and Class in Minority Education, 14 ANTHROPOLOGY & EDUC. Q. 299, 315-17 (1988).
44. See James Collins, Socialization to Text: Structure and Contradiction in Schooled Literacy, in NATURAL HISTORIES OF DISCOURSE 203, 211 (Michael Silverstein & Greg Urban eds., 1996).
45. See id. at 207-08 (asserting that teacher and peer corrections, disruptions, and use of questions affect the way children orient to reading).
46. Id. at 221.
47. Mertz, Recontextualization as Socialization, supra note 19, at 242.
48. Id. at 240. The professor could rely on semantics - the content of what is said - to convey this message, simply lecturing and telling the students that they must now pay attention to different aspects of the texts that they are reading. But instead, when using uptake structure, the professor is using the pragmatics - the contextual structuring of talk - to focus students' attention on particular aspects of legal texts.
49. See MERTZ, supra note 8, at 84-140 (Chapters 5 and 6). Chapter 5 tracks the way a similar underlying message on textual authority is conveyed in classrooms with apparently quite different discourse structures (modified Socratic, short exchange, and predominantly lecture). In Chapter 6, I demonstrate how quite similar underlying dialogic or pair-part structures pervade professorial talk in all classrooms, whether enacted between professor and student in one ongoing exchange, between professor and students in multiple exchanges on the same case, or within professor turns during lectures.
50. Id. at 43-83 (Chapter 4).
51. For example, in the following transcript excerpt, the professor interrupts a student who is responding to a request that she state the facts of a case by trying to "tell the story" of the case in a more usual, layperson's narrative frame: Transcript 4.6 (3/3/3) Prof.: Hi. Um, can you start developing for us the arguments for the plaintiff and the defendant. (.) Um, Ms. N.? Ms. N.: Um, that the plaintiff was a young, youthful man // with // Prof.: // great // the plaintiff was a beautiful man ( ). [[class laughter]] Is that what you said?
52. Id. at 69 (use of //parallel lines// signals overlapping speech). It is quite usual to begin a story by introducing the characters, in part by describing details of their physical appearance. The professor, however, interrupts and then directs the student to skip this kind of narrative introduction and move straight into a discussion of the legal issues: Okay, all right, so there's a lot at stake in the choice of which branch of this rule to apply in this particular fact situation. And all I'm interested in, Ms. N., is what the arguments are, um, for cost of completion, which is what the plaintiff wants in both cases, and what the arguments are for diminution in value, which is what the defendant wants in both cases, all right? I want the argument, okay? (3/3/4).
53. Id.
54. Id. at 43-96 (Chapters 4 and 5).
55. Id. at 65-66.
56. See id. at 75-79;
57. see also EDUCATING LAWYERS, supra note 11 (manuscript at 16-17 (Chapter 2)).
58. This is by no means to cast aspersions on the students' practices, but rather is simply an observation on the different kind of tradition of documentation and reasoning to which they are being trained. They are by now quite expert in the legal tradition that requires precise textual documentation. They have not been trained to assess, for example, the merits of one kind of social science methodology over another, and so are not (and should not be) expected to perform the role played by peer reviewers of social science journals (who are generally professors with many years of training and research experience with the methods in question). Those same peer reviewers, of course, would usually not be well-trained in assessing whether a legal citation is correct. Thus we are talking about different kinds of expertise in different professional traditions.
59. ERVING GOFFMAN, FORMS OF TALK 128 (1981).
60. Id. at 144-45.
61. Id. at 128.
62. GREGORY MATOESIAN, LAW AND THE LANGUAGE OF IDENTITY: DISCOURSE IN THE WILLIAM KENNEDY SMITH RAPE TRIAL (2001).
63. MERTZ, supra note 8, at 102.
64. Direct quotation in this instance retains the linguistic markers of an "original" speech setting: of a reported speech setting that is distinct from the current, reporting context. Therefore, when we directly quote someone (He said, "I'll go now"), we represent the speech that we are reporting using the same pronouns, tense, etc. as the supposed original utterance. If we were to indirectly quote someone (He said that he would go then), we alter these deictic markers ("I" to "he," "will go" to "would go," and "now" to "then"). For this reason, direct quotation gives the impression of reanimating an original utterance with greater accuracy.
65. For an eloquent discussion of this issue that resonates with this view of "legal personae," see JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW: CARDOZO, HOLMES, JEFFERSON, AND WYTHE AS MAKERS OF THE MASKS (Univ. of Cal. Press 2002) (1976).
66. MATOESIAN, supra note 41, at 105, 155-59.
67. See, e.g., MERTZ, supra note 8, at 54 ("It was appealed, you say. Did you find that word anywhere . . . ?");
68. id. at 69 ("Does the court ever say . . . 'And then we know for a fact that Dr. McGee said, quote . . .' Does the court ever say that?");
69. see also EDUCATING LAWYERS, supra note 11 (manuscript at 26-28, 35 (Chapter 2)) (giving examples of law school dialogues centered on the precise wording in cases and on terms such as "firm offer" and "illusory promise").
70. MERTZ, supra note 8, at 84-96 (Chapter 5).
71. Note that it is the attorney's job to figure this out and put the appropriate words in the characters' mouths.
72. This is obviously much more the case with well-prepared direct examinations of "friendly" witnesses than with overtly hostile cross-examination of the opposing side's witnesses.
73. MATOESIAN, supra note 41, at 107.
74. There is a difference between two-part discourse structure in question-answer form and true dialogue. Dialogue, as delineated in seminal work by literary theorist Bakhtin, is typically understood to embody two distinct voices, whereas it is possible for two people to use question-answer structure to produce a story that is essentially told in a single voice. See MIKHAIL BAKHTIN, THE DIALOGIC IMAGINATION 284 (1981) ("In any actual dialogue the rejoinder also leads such a double life: it is structured and conceptualized in the context of the dialogue as a whole, which consists of its own utterances ['own' from the point of view of the speaker] and of alien utterances [those of the partner]."). I am indebted to Michael Silverstein for this observation.
75. MERTZ, supra note 8, at 106-07.
76. Id. at 108.
77. Note that this is one of the times when replicating the exact wording is important.
78. Lee Epstein and Gary King, The Rules of Inference, 69 U. CHI. L. REV. 1, 9 (2002).
79. See supra notes 11 & 18 for descriptions of the Carnegie Report's approach to gathering information.
80. EDUCATING LAWYERS, supra note 11 (manuscript at 3-6 (Chapter 1), 29 (Chapter 2)).
81. Id. (manuscript at 5 (Chapter 1)).
82. Id. (manuscript at 29 (Chapter 2)).
83. Id. (manuscript at 14 (Chapter 1)).
84. Linguistic anthropologists would speak of this as an "indexical icon"; that is, the speech at once points to and mirrors ("iconism") what it seeks to convey. See MERTZ, supra note 8, at 58, 245 n.38;
85. Mertz, Recontextualization as Socialization, supra note 19, at 231;
86. Parmentier, supra note 24, at 281, 284;
87. Silverstein, supra note 24, at 9;
88. see also supra text accompanying note 24. The core terminology derives from the work of Charles Sanders Peirce. CHARLES S. PEIRCE, COLLECTED PAPERS OF CHARLES SANDERS PEIRCE (Charles Hartshorne & Paul Weiss eds., vols. I-VI, Belknap Press of Havard University Press 1974) (1931-1935).
89. For more technical discussions, see Michael Silverstein, Indexical Order and the Dialectics of Sociolinguistic Life, 23 LANGUAGE & COMM. 193, 203 (2003);
90. Michael Silverstein, The Poetics of Politics: "Theirs" and "Ours", 61 J. ANTHROPOLOGICAL RES. 1, 3 (2005).
91. EDUCATING LAWYERS, supra note 11 (manuscript at 53-54 (Chapter 2)).
92. Robert Burns gives a powerful analysis of how the trial can function to balance competing demands in the U.S. system of justice, and of the role of narrative in this balancing. ROBERT BURNS, A THEORY OF THE TRIAL 35-72 (2001).
93. EDUCATING LAWYERS, supra note 11 (manuscript at 53-54 (Chapter 2)).
94. Id. (manuscript at 54 (Chapter 2)).
95. Id.
96. MERTZ, supra note 8, at 220.
97. See, e.g., Wendy Espeland, Legally Mediated Identity: The National Environmental Policy Act and the Bureaucratic Construction of Interests, 28 LAW & SOC'Y REV. 1149 (1994);
98. Susan Staiger Gooding, Place, Race, and Names: Layered Identities in United States v. Oregon, Confederated Tribes of the Colville Reservation, Plaintiff-Intervenor, 28 LAW & SOC'Y REV. 1181 (1994).
99. Anthropologists have made similar points about the way that the importation of Western legal norms has at times erased alternative legal measures and epistemologies abroad. See, e.g., LAURA NADER, THE LIFE OF THE LAW: ANTHROPOLOGICAL PROJECTS (2002);
100. Mark Goodale, The Globalization of Sympathetic Law and Its Consequences, 27 LAW & SOC. INQUIRY 595 (2002).
101. MERTZ, supra note 8, at 97-137 (Chapter 6).
102. Of course, individual law professors may be quite modest and careful about the limits of legal training in preparing them to pick up and appropriately use information from other fields or areas. But when this occurs, it is not because they are employing a systematic method to which their profession trained them. Nor does law school teach legal professionals to think about how what they are learning might actually impair their ability to comprehend alternative epistemologies or approaches. Anthropologists, by contrast, are trained specifically to think about how working unquestioningly through their own cultural or professional categories could impair their ability to achieve top-notch analyses of other cultures (or systems of ideas of whatever kind).
103. See Mertz, Njogu & Gooding, supra note 8, at 45, 62. We use the term "minority" here to reference a literature that deals with students of color, noting however that the term itself has limitations; obviously people of color are in a "minority" only in certain societies and settings (particularly elite settings in the United States). On a world-wide level, the picture is quite different.
104. See infra notes 72-79 and accompanying text.
105. For detailed tables and discussion, see Mertz, Njogu & Gooding, supra note 8, at 45-56. Male students in these six classrooms took proportionately from 10% to 54% more turns than did female students, and from 12% to 38% more time speaking.
106. Id.
107. This result has been largely consistent in self-report studies from 1986 through the present. See LANI GUINIER ET AL., BECOMING GENTLEMEN: WOMEN, LAW SCHOOL, AND INSTITUTIONAL CHANGE 27-84 (1997);
108. YALE LAW WOMEN, supra note 14, at 13-19, 29-33, 81;
109. Taunya Lovell Banks, Gender Bias in the Classroom, 38 J. LEGAL EDUC. 137, 141-44 (1988);
110. Taunya Lovell Banks, Gender Bias in the Classroom, 14 S. ILL. U. L.J. 527, 540 (1990) [hereinafter Banks 2];
111. Suzanne Homer & Lois Schwartz, Admitted but Not Accepted: Outsiders Take an Inside Look at Law School, 5 BERKELEY WOMEN'S L.J. 1, 50 (1990);
112. Joan Krauskopf, Touching the Elephant: Perceptions of Gender Issues in Nine Law Schools, 44 J. LEGAL EDUC. 311, 314, 325-326 (1994);
113. Neufeld, supra note 14, at 540-41, 548-50;
114. Janet Taber et al., Gender, Legal Education, and the Legal Profession: An Empirical Study of Stanford Law Students and Graduates, 40 STAN. L. REV. 1209, 1239 (1988);
115. see also LINDA WIGHTMAN, WOMEN IN LEGAL EDUCATION: A COMPARISON OF THE LAW SCHOOL PERFORMANCE AND LAW SCHOOL EXPERIENCES OF WOMEN AND MEN 54-59 (1996);
116. Marsha Garrison et al., Succeeding in Law School: A Comparison of Women's Experiences at Brooklyn Law School and the University of Pennsylvania, 3 MICH. J. GENDER & L. 515, 520, 525 (1996);
117. Roseanna McCleary & Evan Zucker, Higher Trait-and State-Anxiety in Female Law Students than Male Law Students, 68 PSYCHOL. REP. 1075, 1075-77 (1991);
118. Daniel McIntosh et al., Stress and Health in First-Year Law Students: Women Fare Worse, 24 J. APPLIED SOC. PSYCHOL. 1474, 1483-90 (1994);
119. James Ogloff et al., More Than 'Learning to Think Like a Lawyer': The Empirical Research on Legal Education, 34 CREIGHTON L. REV. 73, 195 (2000);
120. E.R. Robert & M.F. Winter, Sex-Role and Success in Law School, 29 J. LEGAL EDUC. 449, 450, 452-54 (1978).
121. But see Mitu Gulati, Richard Sander & Robert Sockloskie, The Happy Charade: An Empirical Examination of the Third Year of Law School, 51 J. LEGAL EDUC. 235, 251-54 (2001) for a study that found diminution of student distress generally by the third year.
122. On Yale faculty comments regarding an improving situation for women, see YALE LAW WOMEN, supra note 14, at 13, 15.
123. There have been very few efforts at observational research. See YALE LAW WOMEN, supra note 14, at 6;
124. Alice Jacobs, Women in Law School: Structural Constraint and Personal Choice in the Formation of Professional Identity, 24 J. LEGAL EDUC. 462, 462-63 (1972);
125. Neufeld, supra note 14, at 522;
126. Weiss & Melling, supra note 14, at 1299;
127. Wilson & Levin, supra note 14, at 3;
128. Mary Becker, How to Do a Gender Study at Your Law School (And Why It Might Be a Good Idea) 14-15 (1999) (unpublished manuscript, on file with author) (reporting results of study at University of Chicago Law School). For an overview of the relevant literature on women's experiences in law school, see MERTZ, supra note 8, at 185-95.
129. Mertz, Njogu & Gooding, supra note 8, at 62.
130. For a more detailed overall analysis of race and classroom participation, see id. at 61-75.
131. Id. at 62.
132. Id. at 67. I analyze the classroom dynamics in this particular class in great detail in MERTZ, supra note 8, at 141-73 (Chapter 7). The participation profile in this course stands as a useful reminder of the complexities involved in analyzing classroom dynamics; this professor is particularly expert in providing facilitating frameworks for students (aspects of which would, in the Carnegie report's language, be termed "scaffolding" and "coaching"). Our results suggest that a number of factors are likely at work in creating encouraging environments for students of color; the presence of professors of color provides a source of role modeling that may help redefine "outsider" status, while the skillful use of pedagogical tools, even in combination with Socratic dialogue, may also be useful. This only underscores a general point made in the literature, which is that the very same steps that build a better learning environment for women and students of color will often benefit all students.
133. See, e.g., Banks 2, supra note 73, at 535-36 (finding students of color more likely to report lack of respect and offensive humor by professors); GUINIER ET AL., supra note 73, at 135 n.114 (explaining that students of color report racially intimidating language in law school classrooms);
134. Homer & Schwartz, supra note 73, at 47-55 (stating that white male students report higher levels of classroom participation, self-esteem, and positive reactions to law school pedagogy than other students);
135. Krauskopf, supra note 73, at 314 (concluding that students of color differentially report harassment and silencing).
136. Mitu Gulati, Richard Sander, and Robert Sockloskie found that students of color were generally satisfied with their law school experiences, but that minority students were overrepresented among the small pockets of students who reported deep dissatisfaction. Gulati, Sander & Sockloski, supra note 73, at 255.
137. See, e.g., William Boyd, Legal Education: A Nationwide Study of Minority Law Students 1974, 4 BLACK L.J. 527, 539, 542 (1975) (noting that law schools "which have more experience with minority students have learned how to provide effective academic assistance where it is needed, but less experienced institutions have not," and also that the "lack of minority presence fosters the sense of being unwanted and isolated");
138. Timothy Clydesdale, A Forked River Runs Through Law School: Toward Understanding Race, Gender, Age, and Related Gaps in Law School Performance and Bar Passage, 29 LAW & SOC. INQUIRY 711, 744 (2004) (finding that key factors influencing final law student GPAs include "quality instruction, faculty race diversity, and faculty gender diversity");
139. Portia Y.T. Hamlar, Minority Tokenism in American Law Schools, 26 HOW. L.J. 443, 532-54, 576 (1983) (explaining that minority students who are tokens experience differential stress and silencing in law school, and citing a MALDEF study that discusses need for "critical mass" in order for minority law students to feel comfortable);
140. Cathaleen Roach, A River Runs Through It: Tapping into the Informational Stream to Move Students from Isolation to Autonomy, 36 ARIZ. L. REV. 667, 675 (1994) ("Minority law students [in predominantly white law schools] experience acute isolation, which in turn, produces serious psychological and academic ramifications.");
141. Kenneth Tollett, Black Institutions of Higher Learning: Inadvertent Victims or Necessary Sacrifices?, 3 BLACK L.J. 162, 165-167 (1973) (finding that Black higher educational institutions provide uniquely supportive environments for African-American students, including better role models, superior cultural and psycho-social settings, and "educational enclaves" that help them transition to the largely white professional mainstream). In his article, Professor Clydesdale further wrote: Those students with higher final GPAs were more likely to report better instructional quality, more minority instructors, and more women instructors. . . . Faculty at most law schools must follow standardized grading distributions; thus, one can reasonably infer that students who have race and gender diverse instructors actually perform better academically. This is an important finding, as it supports the 'critical mass' argument in the Grutter decision and deserves thoughtful attention by legal educators and social scientists alike.
142. Clydesdale, supra, at 744.
143. In other higher educational settings, studies have shown that African-American students who attended black colleges are more successful. JACQUELINE FLEMING, BLACKS IN COLLEGE: A COMPARATIVE STUDY OF STUDENTS' SUCCESS IN BLACK AND IN WHITE INSTITUTIONS (1984).
144. Mertz, Njogu & Gooding, supra note 8, at 46.
145. Id. at 48-49;
146. MERTZ, supra note 8, at 190-96.
147. Mertz, Njogu & Gooding, supra note 8, at 65.
148. Id. at 66-67.
149. For a more extended discussion of this issue, see MERTZ, supra note 8, at 220-22.
150. Mertz, Njogu & Gooding, supra note 8, at 77-86.
151. See SUSAN DAICOFF, LAWYER, KNOW THYSELF 24-50 (2004) for a discussion of the arguable gap that exists between lawyers' understandings and those of the laypeople they purport to serve.
152. Carol Weinstein, The Classroom as a Social Context for Learning, 42 ANN. REV. PSYCHOL. 493, 519 (1991).