As previously explained, Elizabeth Mertz’s book, “The Language of Law School,” sets forth the results of her systematic study of the common language used at eight different law schools, by eight different professors, in teaching a first-year section of contracts.
Like any good lawyer, Mertz doesn’t make you wait for the punchline, but summarizes her primary conclusions at the outset of the book, in what she describes as “seven relatively simple propositions.”
In my humble opinion, these propositions—while insightful—are not necessarily simple, either conceptually or in terms of how they are expressed.
Accordingly, I will attempt to translate these into plain language, and try to articulate examples of the dynamics Mertz is describing as I understand them.
At the outset, Mertz presents her seven propositions under the heading “Legal Epistemology and Law Teaching.” What does this mean?
The Merriam-Webster Online Dictionary defines epistemology as: “the study or a theory of the nature and grounds of knowledge especially with reference to its limits and validity”—a definition that I do not find particularly helpful.
Referring to my long-past days as an undergraduate studying political philosophy, I understood epistemology to refer to how we know, as opposed to what we know. While this is a complex and high-minded concept, there are mundane examples that can illustrate the gist of it.
For instance: let’s say you have two sources of the same knowledge. The substantive knowledge is the way a car accident happened. The two sources of knowledge are (1) your client’s recollection of the incident and (2) a videotape of the incident from a camera mounted at the intersection where it happened.
An epistemology that privileges technology and objective ways of knowing would prefer the videotape as the most accurate account of the accident.
By contrast, an epistemology informed by skepticism of technology and sensitivity to the possibility of manipulating technology might privilege the client’s account.
Same event, but two different ways of knowing it.
From another angle: epistemology is a central theme in the film Blade Runner, directed by Ridley Scott. Think of the pivotal scene where Deckard examines photographs purporting to be of Rachael’s childhood, only to discover that the photographs are artful fabrications. He tells Rachael—who up until that point does not know she is a replicant, or that her memories have been fabricated just as the photographs—and Rachael is devastated. This moment challenges an epistemology common to most of the Twentieth Century: implicit trust in the truth and accuracy of photographic images. Presciently, the film predicted a world in which the virtual and the actual are indistinguishable, which forces the search for a new epistemology. (In the film, the new epistemology—which is specifically aimed at distinguishing humans from replicants—is one based on the experience of human emotion and its physical hallmarks, rather than the external appearance of humanness.)
Now that was have a working understanding of the concept of epistemology, we can see how it pervades the intellectual exercise of law school. In law school, we are perpetually confronted with questions, and it almost matters less the substance of our answers but whether we rely on the right sources in reaching them. In other words, what matters is how we know the answers, which means how we know the world, the people within it, and the difference between right and wrong.
So, when Mertz titles this section, “Legal Epistemology and Law Teaching,” she is contending, I would argue, that when we are taught to read, talk, and thing like a lawyer, the real agenda is to teach us a new way of knowing.
This then brings us to Mertz’s first proposition:
(1) There is a core approach to the world and to human conflict that is perpetuated 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.
(Mertz at 4)
This single proposition in fact represents several:
– Legal education presents a common vision of the world that is expressed in a common language.
– That common vision consists of multiple elements.
– The first element is to prioritize form over content. In other words, from the standpoint of practical consequences, it matters more if the plaintiff filed her complaint on time, and whether she pled her claims with sufficient particularity, than whether she has an inherently legitimate grievance that the law should address.
– The second element is to prioritize authority over morality. In short, to solve human conflict, we look to external authority (the law) rather than internal morality (our own values and those of our community).
– The third element is to prioritize legal-linguistic contexts over social contexts. In other words, we look to the text of the law, and specifically the text of binding precedent, to resolve human conflict. Thus, in a tort or contracts case, abstractions about what a reasonable man should be expected to know prevail over what, for example, an actual elderly woman with English as a second language would know.
(The caricature above refers to a case from my own first year torts class, taught by the formidable Judge Guido Calabresi, co-author of the seminal text, “One View of the Cathedral.”)
It occurs to me that this first proposition alone could be used to analyze any number of core cases we study in the first year of law school. But for the moment we will proceed with examining Mertz’s initial propostions.