Learn to squirm less with legal language
Context matters when we're dealing with language that makes us uncomfortable
In my first year of law school, I read the first case I found distressing. It’s an experience I believe nearly every law student has had at least once over those three years.
This particular case included graphic depictions of a seven-year-old boy being sexually assaulted and beaten to death with an old car battery by a seventeen-year-old boy. Something about it and the subsequent discussion caused the image to stick in my brain and haunt me for days after. While I had and have no plans to enter the world of criminal law at present, reading and discussing material that made me physically uncomfortable was an essential part of my law school experience. Over the next three years, I would read cases involving distressing fact patterns, and racist, Antisemitic, and homophobic language, including a deep dive into American case law in a research paper which led me to a case from the 1800s upholding the purchase and sale of enslaved people. Law can be distressing because life can be distressing.
Legal writing is not exactly subject to daytime television standards and practice restrictions. It is more often than not crucial in making a full argument or rendering a judgment that the exact wording of threats, letters, and conversations is included in various legal documents. These are the same documents that enter the public record, and that lawyers and law students will go on to interact with as precedent for future cases. One of the lesser talked about parts of law school is learning to get comfortable discussing material that may make you uncomfortable. For example, when talking about the murder of Cindy Gladue, it’s important to get comfortable with the word “vagina” because it’s key in understanding the events leading up to her death.
In general, students appear to be reasonably comfortable with the use of racial slurs and other offensive language and material when it comes from judges in the context of relaying events as they transpassed to write a judgment. I have yet to hear of a student complaining about the inclusion of cases with this rhetoric in a case book, though these complaints may exist. Problems tend to arise in the discussion of these cases in the classroom involving references to and mention of offensive language and content. When it comes to the school, foul language, even when contextualized by the source material from whence it arose, has become taboo to the extent of formal apologies and suspensions.
Though it may be difficult, I’m going to resist the urge to say that students need to grow a thicker skin. This answer, despite containing some truth, is too reductive. As soon as you enter professional life, the tone of the conversation changes. Client files don’t come with content warnings. Neither do clients or other lawyers, for that matter. Preparing for the shift to professional life is not as much about developing a thick skin as it is about finding the tools to keep moving forward when encountering upsetting language and material.
To be clear, I am not saying we should condone every use of offensive slurs or language in the classroom as acceptable in common parlance or as part of preparing for the real world. It would be entirely hypocritical of me to suggest this as a student who did take professors and university administration to task for inappropriate comments about Jews and Israel in class. I am talking about the use of this language in the discussion of legal material that uses this language. Because, context matters.
In Warman v Grosvenor, the plaintiff was subject to vicious Antisemitic harassment, a fair amount of which is transcribed in the judgment. Depending on the context of the discussion, a discussion of this case could very well necessitate the use of some of this language, even slurs like “kike” (written out in full here because, as we’re discussing, context matters). The use of this language when talking about Warman is entirely different from if this language were to be used casually by my professor when delivering a lecture on an unrelated topic or in conversation with a student.
Context needs to come first when dealing with offensive language in the classroom. But so often, this isn’t happening.
The current trend of students sending out letters and asking clubs and faculty to sign on to statements after offensive language is used in a classroom discussion fails to prepare students for professional life. It creates a circumstance where they are not challenged to think deeply about a situation that they found distressing and build the emotional or psychological toolkit to handle those feelings. By all means, take offence when someone refers to you by a racial slur or uses a derogatory term casually. But know the difference between casual racism and intellectual discussion. In law, there are many times when language will be everything. We need to graduate law students who are comfortable navigating the perils of language, even when it makes them personally uncomfortable, just like we graduate law students who are comfortable reading about brutal murders and discussing them in a nuanced and even-mannered way.
Right now, schools are failing at this. They have stopped holding the line when it comes to sensitivity to language. In an industry that is, in so many ways, all about words, the desire to control language is an undercurrent of everything from the academic environment to contract negotiations. Suppose academic freedom is as vital as schools purport that it is. In that case, this means that the language used in classrooms should receive some protection when it is directly relevant to the material being discussed. When students come forward with statements calling out a classroom discussion of an offensive term used in a case, rather than acquiescing to the demand, it may be worth engaging in a conversation about dealing with abusive material in such a way that students will be truly prepared for life beyond the classroom.
Excellent piece!