Resistance is Futile: How Legal Writing Pedagogy Contributes to the Law's Marginalization of the Outsider Voices

Abstract

This article tackles the question of whether the methods of instruction in legal research, writing and analysis courses can add to the alienation of outsider law students. Using the socio-linguistic theories of "muting" and linguistic determinism, the article argues that the two dominant pedagogies of legal writing instruction, the process view and the social view, can stifle the voices of outsiders in the legal academy. In linguistic terms, legal education, by teaching in the voice of the socially powerful, can force outsiders to distort their ideas in order to be heard, or can even render those ideas nonexistent.

The methodologies of teaching legal writing demonstrate the problem starkly. By teaching students to focus on persuading the audience when framing the legal question and determining relevant facts, for example, legal writing pedagogy effectively prevents the law student from communicating an outsider viewpoint. The formalities of legal writing remove individual perspective by requiring writers to communicate in an abstract, "objective" style. Similarly, both the vocabulary and register of legal language is often biased against outsider perspectives. Thus, by becoming fluent in the language of the law, the outsider risks losing her individual perspective.

The article recognizes the dilemma inherent in making any systematic changes to a practice-based course like legal writing. The goal of the course is to teach the realities of practice; the dilemma is how to do so without draining the law of the valuable voices of outsiders. The article suggests that a good first step would be to incorporate concepts from critical theory such as narrative theory, "multiple consciousness" and "positionality" into the first year of law school, even within the legal writing course. This would at least acknowledge the existence of the problem, show students that others have confronted the same dilemma and have considered it important and relevant enough to write about, and give students some guidance for how to cope with the problem.

Keywords: outsiders, legal education, legal writing, pedagogy, linguistics, linguistic determinism, muting, critical legal theory, law and language, voice, marginalizing

JEL Classification: K10