- Id. In his helpful comments on this study, Baker also suggested how the struc-
ture of law school language as described in this research might reinforce the marginalization
of traditional outsiders, while also leaving them with a sense of internal conflict and alien-
ation. Id., 137–140. He counsels against despair, however, pointing out that outside of the
first-year classroom there are numerous other possible sites in law schools for resistance
to the dominant vision conveyed in formal training. - Hirsch, “Making Culture Visible,” 127–128. Hirsch contrasts the core pedagogy
of anthropology, which pushes students to problematize their own cultural assumptions,
with that of law. - I include both students from traditionally excluded groups and scholars from
other disciplines in my category of “outsider” here. - Winter, A Clearing in the Forest, 331. In an insightful passage, Winter takes criti-
cal legal theorist Duncan Kennedy to task for ceding the ground of unconscious cultural
categorization by concentrating too much on judges’ overtly political motivations: “The
truly radical insight is that judges are ideological precisely when they are not acting in
an overtly political way. The insight that categorization is socially motivated means that
categorization... is always a normatively loaded process.” Id., 331. Susan Philips has
demonstrated that this tacit ideological loading goes beyond processes of categorization
to the structuring of language in use. Philips, Ideology. Thus, from multiple directions,
there is support for the idea that the apparently abstract process of legal reasoning is
actually deeply imbricated in social context and change. Here I would agree with Winter’s
critique of attempts by legal theorists such as Sunstein to delineate an abstract structure
of legal reasoning without adequately theorizing a social dimension; in this respect,
Edward Levi did indeed do a better job than many of his successors (although I would
also agree with Winter when he dissents from Levi’s “uncritical celebration of analogi-
cal reasoning in law”; just because this reasoning process does incorporate changing social
norms over time does not mean that it does so fairly; Winter, A Clearing in the Forest,
257–258). - For further discussion of “normative importation” in law, see Yovel, “The Lan-
guage beyond Law,” “What Is Contract Law ‘About’?,” and “Rights and Rites.” - Philips,“The Language Socialization of Lawyers.”
- Elkins, “The Legal Persona.”
- Woolard, “Language Ideology,” 27.
- Silverstein, “The Uses and Utility of Ideology,” 128–129.
- Gal and Irvine, “The Boundaries of Languages and Disciplines.”
- Morris, “Not Thinking Like a Non-Lawyer.” Morris shares my view that there is
a distinctive linguistic approach associated with law, which lawyers generally attempt to
summarize in the somewhat misleading phrase “thinking like a lawyer.” (Note the inter-
esting folk-Whorfian theory iconically associating language and thought; for more com-
mentary on this issue, see Mertz, “Language and Mind.”) As Morris notes, lawyers have
no corner on the market of rigorous thought, but like all professionals they have a special-
ized professional discourse; they “think like lawyers” when they employ this discourse just
as doctors “think like doctors” when they use the discourse and accompanying orienta-
tion to which they are professionally trained. - Hirsch, Pronouncing and Persevering, 234–235.
- Matoesian, “Law and the Language of Identity,” 41.
- Philips, Ideology, 82.
- Williams, Alchemy.
- This is the case because use of law by definition invokes the power of the state to
resolve actual or potential disputes, allocate benefits, exact punishment, and so forth. See
270 Notes to Pages 214–217