adequately encompassed using quantitative models (although I’m always open to being
convinced to the contrary!).
- See discussion above, and in Chapter 8. As this book went to press, I had the
exciting opportunity to read a draft of the forthcoming Carnegie Foundation book report-
ing the findings of its own recent study of legal education, entitled “Educating Lawyers.”
The Carnegie Foundation research’s conclusions dovetail with my study’s findings in many
respects and also incorporate current perspectives from educational research to suggest
possible shifts in legal pedagogy and assessment. It will undoubtedly serve as an impor-
tant source for law teachers who seek new ideas for improving legal pedagogy. - If law schools were to take this direction, then the jolt that they have received as
a result of the Sander study could be turned to positive effect. The extreme path of elimi-
nating affirmative action could in a sense be understood as giving up on real integration
of law schools, a patently undesirable and undemocratic result in a racially diverse society
largely run by lawyers. But Sander is correct that an alternative strategy of integration
without appropriate concern for the students of color who might fall by the wayside is also
unacceptable. All the demonstrated benefits of diversity to law schools and white law stu-
dents, as well as to successful law students of color, do not obviate the imperative to con-
sider the needs of the overall population of law students of color. One obvious step to
prevent a Scylla-and-Charybdis choice—between resegregation of the most powerful, elite
sector of the profession, and sacrifice of too many black law students along the road to
integration—is for law schools to pay more attention to the strategies that have worked in
other educational settings and to be more willing to develop innovative pedagogy that will
benefit not only students of color but all students. - As Davidson notes, this more contextual approach to understanding educational
settings also permits a more sophisticated understanding of race itself: as “scholars in-
creasingly recognize previously unpredicted manifestations of race,” a careful analysis
of school- and classroom-level contextual factors can help us to “incorporate the more
fluid, situational conceptions of social categories” and thereby to achieve more accu-
rate analysis of “the reproduction of social inequality” in educational settings.Davidson,
Making and Molding Identity, 17–18. - Here again, in Silversteinian terminology, I am arguing not for “translation” but
for even just a very rudimentary attempt at laying the groundwork for “transduction.” For
an economist’s call for more humility in the interpretation and use of social science by
those in legal arenas, see Donahue, “The Case for More and Better Empirical Research.” - For a discussion of the empirical evidence revealing growing alienation and cor-
responding differences in orientations between attorneys and laypeople, see Daicoff, Law-
yer, Know Thyself. Elkins’s early article pointed out the problematic character of the lawyer’s
persona: “The lawyer considers himself a neutral, rational, and objective problem solver
... representing certain events in the world... [by] structuring all possible human rela-
tions into the form of claims and counterclaims.” Elkins, “The Legal Persona,” 739. Un-
fortunately, as Elkins points out, the “myth of rationality in the legal profession is founded
on a model of human behavior” that omits unconscious and nonrational motivation and
behavior: “Like classical economic theory, it views man as totally rational and influenced
in his decisionmaking only by external objective factors,” whereas both lawyers and their
clients operate in the world using a combination of internal and external, rational and other
guideposts. Id. See also Menkel-Meadow, “What’s Missing,” on the importance of the
“human arts” of lawyering, and Noonan, Persons and Masks of the Law, on the importance
of viewing rationality in the context of larger humanity. This may have contributed to the
ironic situation that current legal thinking has moved closer to that of economics at the
price of more realistic understanding of (and communication with) law’s intended sub-
jects, who, as Daicoff points out, tend to differ considerably in their orientation.
Notes to Pages 222–223 277