One of the primary purposes of this blog is to summarize and comment on the existing literature related to the movement to humanize legal education.
An important starting point in this endeavor is Elizabeth Mertz’s 2007 book, “The Language of Law School.” Mertz, a Senior Research Fellow at the American Bar Foundation, based the book on the conclusions arising out of her systematic study of the intellectual and personal transformation experienced by law students as they move forward through their education.
These conclusions, which will be explored in the next series of posts, are quite stunning and, on some level, counter-intuitive. Perhaps most significant is Mertz’s conclusion that traditional modes of legal education diminish students’ capacities to assess the law from a moral perspective. This despite the fact that the legal profession is supposed to be shaped and guided by a rigorous ethical standard. True, individual moral values and professional ethics are not the same thing, yet it is difficult to imagine individuals following any particular ethical code in the absence of a personal moral commitment.
Let’s begin with Mertz’s own summary of the conclusions she reached through her study:
[B]oth in content and form, U.S. law school classrooms are perpetuating a vision of law and human conflict that in effect erases certain key aspects of social experience. In sum, the language of U.S. law works to create an erasure or cultural invisibility, as well as an amorality, that are problematic in a society seeking to be truly democratic.
This is how I would translate Mertz’s statement:
(1) There is a conceptual language and way of thinking that is common to law school classrooms.
(2) In learning to speak that language and “think like a lawyer,” law students must embrace an abstract, professional identity that is divorced from any sense of identity that is different or particular to a given community.
(3) In divorcing themselves from their identity and their community, law students also divorce themselves from the source of their morality and values, and instead embrace an amoral, “objective” view of human conflict.
(4) In this manner, even law students from diverse backgrounds are not empowered or given the voice to bring knowledge and understanding from their diverse backgrounds to the study of law. Rather, the law imposes its knowledge and understanding of the world on law students in a one-way interaction. Thus, law is an authoritarian rather than a democratic structure.
And this is how I would translate her contention into plain language:
(1) When you go to law school, you are expected to check your identity at the door.
(2) Students who succeed in law school do so in part because they are able to do this.
(3) Students who are unable or unwilling to leave their identity behind will struggle to speak and think “like a lawyer” and will have difficulty relating to their professors and other attorneys.
(4) While legal education might initially invite diversty in the door, it does not support diversity in practice, but instead seeks to homogenize it.
As always, I look forward to your comments.