The Perils and Promise of Teaching Margaret Montoya’s Máscaras Article in the First Year Law School Curriculum
The Perils and Promise of Teaching Margaret Montoya’s Máscaras Article in the First Year Law School Curriculum
A Reflection on Margaret Montoya, Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women’s L. J. 185 (1994), 15 Chicano-Latino L. Rev. 1 (1994)
is rightly considered an icon in the literature of Critical Race
Theory. Twenty years after its publication it continues to offer
insights and serves as a quintessential example of the power of personal
narrative to decode embedded assumptions and structural features of
law. Montoya’s article is built, in part, on John Noonan’s insight, in Persons and Masks of the Law (1976), about the tendency of legal discourse to obscure or mask the humanity that underlies all case law.[2]
While Noonan looked at the more generic “masking” tendencies of the
law, Montoya connected that process with the more specific project of
“racing” the law through a mediation of her experience as a Latina first
year law student at Harvard. The result was a powerful piece that has
ongoing relevance to the jurisprudential theories seeking to describe
and better understand the interior connections of race and law. At the
same time the article provides a critique that predictably raises the
hackles of readers who are unfamiliar with or who might discount some of
the basic premises of Critical Race Theory.
I suspect that most of the readers of the Máscaras article—particularly those teaching in law schools and who assign the Máscaras article
to their students—do so in the context of a second or third year
elective course or seminar. As such, the law students who encounter the
article are invariably a self-selected group composed of people who have
an interest in, or at least have some intellectual curiosity about, the
implications of race and the law. In many cases they may well already
be persuaded by the literature of which Máscaras forms a part. A
different audience for the article—a tougher crowd perhaps—would be
composed of first year students reading the piece as part of a mandatory
course. In this comment, I share my experience in teaching the Máscaras article
to every entering class of the University of New Mexico law school
since 2005—aided by the article’s author, Margaret Montoya. That
experience highlights the challenges of introducing Professor Montoya’s
article to first year law students, but also suggests the value and
powerful force of sharing Máscaras with students at the start of their legal career.
First, some background is needed to place in context the experience of teaching Máscaras and
the viability of doing so as part of the first year law school
curriculum. In 1987 the faculty of the University of New Mexico law
school decided to introduce a required component of legal history into
the Fall semester of its first year curriculum and hired me to develop
such a course. Initially entitled “Historical Introduction to Law,” the
course and the materials developed for it reflected the title: an
initial exposure to the historical context of the common law. Gradually,
however, the focus of the course evolved and by Fall 2005, when the Máscaras article
was first added to the course materials, the course had been renamed
“Comparative and Historical Legal Perspectives” (CHLP). In this
iteration, and continuing up to the present, CHLP has the objective of
helping the entering class develop effectiveness and proficiency as law
students and ultimately lawyers. A dual approach is used to advance this
intensely practical objective of CHLP notwithstanding the use of
readings that inevitably strike the students as very different from the
sources being used to learn the “law” in their other first year classes.
The first approach is to help students develop an appreciation of the
intrinsic nature, characteristics, and particularities of the common
law tradition—what might be called the development of a “legal cultural
competency” in that legal tradition. American law students are
invariably told that the principal objective of their training and
education is to be able “to think like a lawyer.” While this platitude
has an element of truth, it is, of course, not strictly accurate and
begs a corrective. The statement should be modified to assert that
American law students need “to think like a (common law) lawyer.” A
reminder that the legal system students are being trained to enter is
derived from a particular legal tradition underscores the easily
overlooked fact that there are significantly different understandings of
the nature of “law” and the role that lawyers and judges play within a
host of other cultures and legal traditions. For law students, acquiring
the capacity to “think like a lawyer” in the common law tradition is
akin to developing fluency in a new and complex language. The ability to
communicate effectively and persuasively rests on a mastery of
vocabulary, grammar, syntax as well an appreciation of subtleties of
pronunciation, context, dialects, and specialized argot. CHLP challenges
students to immerse themselves and develop a sophisticated
understanding of the conventions and byways of particular legal culture
within which American lawyers and judges operate. Acquiring such a
“legal cultural competence,” it is asserted, is crucial to the
effectiveness of would-be practitioners within the American legal
tradition.
The second approach in helping students develop into effective legal
practitioners involves instilling a critical and self-conscious approach
to the study and understanding of law. Such a critical perspective is
needed to resist the tendency of students to take what they are
encountering for granted, as something that is inevitable and
inexorable. I offer the metaphor that first year law students (under the
conventional pedagogy followed by American law schools) are dropped
into an ocean of “law” where they quickly encounter a bewildering array
of strange denizens in that watery legal world and in which they are
largely left to their own devices to navigate and understand.
Notwithstanding the fact that as sentient creatures law students know
they have been dropped in this ocean, there is a strong tendency to
lose sight of this fact and begin to take the process of legal education
and the content of law for granted and at face value. Much like the air
we breathe, the legal “water” that surrounds first year law students
can easily become invisible to their eyes. CHLP challenges students to
become “flying fish” who rise above the legal sea they find themselves
in and attain a critical perspective from which they are encouraged to
ask what they are doing in their other first year classes, how they are doing it, and why
they are doing it. In addition to becoming critical consumers of their
legal education, students are urged to embrace the central insight and
legacy of legal realism: that legal rules and doctrines are not
inevitable, that law rests on underlying and often implicit assumptions,
reflects particular values, and ultimately is a construct that is
shaped, not something that is inexorably or neutrally developed.
Developing a self-critical mindset in their approach to studying law is
the essence of the call for first year law students to strive to become
“flying fish.”
CHLP seeks to advance these dual approaches in five interrelated units
of readings. The first unit provides an overview of the common law and
civil law tradition and starts with three appellate judicial opinions
drawn from the highest civil court in France, the highest civil court in
Germany, and from the Michigan Supreme Court. All three courts address
an identical issue (the applicability of the principle of joint and
several liability in the context of a tort suit) and each reaches the
same result in applying the principle. Even so, the form of the judicial
opinions varies widely. Considering the judicial opinions as
“artifacts” of the legal systems that produced them—the first two from
the civil law tradition and the last from the common law
tradition—offers dramatic contrasts in terms of length, sources of law
relied upon, and the nature of judicial persona and argumentation.
Differences in the shape of the opinions invite an exploration of how
the history and nature of the civil law tradition helps account for the
shape of the French and German opinions. Although the first unit serves
to introduce students to the civil law tradition, the purpose of the
comparative approach is to highlight features of the Michigan decision
that are characteristic of the common law approach to judicial
law-making and that students might otherwise take for granted. The
Michigan case serves as a typical example of the appellate opinions that
form the staple of what students are reading for their other classes,
but allows them to reflect upon how the American opinion suggests a
different world-view of the nature of law and the legitimate sources of
law.
The second CHLP unit turns to selected aspects of the history of the
common law tradition, including the unification of law in England
through the rise of the royal or central courts operating under the writ
system and the emergence of the court of Chancery, along with the
legacy of the law/equity distinction and the ultimate procedural
“merger” of law and equity. The readings dealing with medieval English
legal developments and American law reform in the 19th century do not
pretend to offer an overview of English and American legal history.
Rather, they serve as a means through which students can identify
contributing factors that have shaped the common law tradition and
imparted it with particular characteristics and features. The comparison
of the three judicial opinions that open the class continue to provide
benefits as students are able to identify further parallels between the
Michigan opinion and the appellate opinions they are studying in
criminal law, torts, and contracts.
CHLP’s unit three is entitled, “The Role of Law and Lawyers” and
shifts gears by introducing some “non-Western” concepts of law,
including dimensions of Chthonic legal traditions and Navajo justice
concepts. The unit offers the opportunity to contrast the common law and
civil law traditions with other cultural contexts in which the meaning
of “law” and the role of lawyers—if any—is rather different from what
lawyers within either common law or civil law tradition would take for
granted. This third unit also explores expectations about law and
lawyers in the American common law tradition, the contours of an
ideology of advocacy, and the broad trends in the rise of “Alternative
Dispute Resolution.” Inevitably, cultural understandings about the
nature of “law” not only shape the potential role for lawyers, but have
implications for how law is taught.
Unit four turns to the question that many first semester law students
tend to ask themselves at this point: where did the pedagogy for the
legal education they are experiencing come from? The unit permits a
brief exploration of the arc of legal education from a practical,
apprentice-based approach, exemplified by training in the Inns of Court
and by “reading law,” to a combination of academic study and
apprenticeships to Christopher Columbus Langdell’s concept of law as a
“science.” Exploring the rise of the modern law school in terms of the
study of law introduced with Langdell’s deanship at Harvard Law School
in 1870 helps satisfy the curiosity of students about the birth of the
“socratic method.” At the same time, that story permits an introduction
of a jurisprudential perspective of American law by exploring the
premises, methods, and purposes of Langdell’s legal education. The
philosophy and understanding of law that underlay Langdell’s 19th
century “revolution” in legal education set the stage for the ultimate
rejection of “Langdellism” in the critiques of the Legal Realists.
The final unit of the course, entitled “Changing Perceptions of Law
in America,” traces the emergence of the Legal Realists and some of
their intellectual heirs including the Critical Legal Studies movement,
Feminist Jurisprudence, and Critical Race Theory. Rather than an
abstract discussion of some of the schools of post-realist
jurisprudential thought, the final unit explores this thought through
narratives focusing on accounts of the first year law school experience
and their significance for understanding the nature of law. Prior to
2005, CHLP featured Duncan Kennedy’s critique of law school as training
for hierarchy as well as Ann Scales’ feminist critique of legal
education.[3] After 2005, Margaret Montoya’s Máscaras was
added to round out three very personal, but different takes on legal
education and in particular each author’s reflection on the law school
experience at Harvard. The materials in the final unit inevitably
trigger strong reactions among the students, particularly as they
respond to the experiences characterized by the authors in the light of
their own experience and reactions to their first semester of law
school. The presentation of Professor Montoya’s Máscaras article
in this context has proved challenging, but it has also provided
evidence of the promise of generating candid classroom discussion by
first year law students on difficult questions raised by race and the
law.
From the time the Máscaras article was included in the course materials, Professor Montoya has routinely given a guest lecture on the ideas raised in Máscaras. Her presentation and the Máscaras
article—along with the Kennedy and Scales pieces—has triggered both
positive and negative reactions. Invariably some students express their
gratitude for finally hearing “their voice” and experiences echoed in
the Máscaras article, while others sometimes react skeptically
and at times dismissively. The tendency of some students, particularly
white males, to react defensively to the themes in Máscaras and
thus to stifle an open consideration of its ideas has lessened over
time. Part of that tendency I attribute to a clearer articulation of how
the Máscaras article relates to CHLP’s objective of developing
among students a self-critical perspective of law and legal education.
While to some individuals the themes of Máscaras is like
“singing to the choir,” there has been a discernable shift in the
willingness of potential skeptics of its message to give it serious
consideration after emphasizing its place in the enterprise of
maintaining a self-critical perceptive about law and the legal system.
The final unit—including the Máscaras article—has worked better
over the years after I began challenging any member of the class to
deny that they were not in a real sense “post-Langdellians.” In other
words, virtually no students at this stage of the course are apt to
express the view that law is inexorable, simply destined to be and
inherently neutral in nature. And I point out that if that is not the
case, then all of them have to be willing to concede the need to examine
what has shaped law and the legal system. The forces
potentially shaping law are manifold, including power, class, economics,
gender, and race, among a wealth of other things. If students are
forced to acknowledge the need to think about law in that wider critical
context, there is a greater potential for Máscaras to be seen
as introducing the dimension of race and gender as part of the
development of a critical perspective rather than as a political
manifesto that speaks to a like-minded subset. It is within this
analytical framework (along with the fact that the entire first year
class is part of the discussion) that Máscaras has enormous potential to contribute to legal education.
At the same time, because Máscaras is discussed in a session
involving the entire entering class of around 115 students, the
dynamics of personal vulnerability and risk work against meaningful and
candid discourse. Each time Professor Montoya has given her joint
lecture, we have tried to think of ways to encourage a more open and
fruitful discussion. In the past, Professor Montoya has given her
presentation (sometimes using a power point presentation that was
subsequently shared with the class) prefaced with an invitation to ask
questions during and after the presentation. In addition, we have
invited students who might have a particular interest in the ideas of Máscaras to
raise questions ahead of time or meet with Professor Montoya before the
presentation. While these approaches were useful, they never generated
the type of discussion we both really hoped for—until, that is, Fall
2012.
At the end of last year, Professor Montoya and I met with a half dozen students before the joint session to discuss Máscaras in
anticipation of those students serving as a volunteer panel that might
help stimulate class discussion. At that preliminary meeting someone
posed the question, “How might or could white males participate in
discussing Máscaras without themselves feeling silenced?” The
underlying assumption was that the intent of the article was not to
silence white males and turn the tables on them after years of being the
dominant voice in the legal dialogue. That question prompted a useful
discussion about how hard and difficult the questions raised by Máscaras were to discuss—particularly in a large classroom with students speaking in front of all their peers.
What transformed this year’s presentation on Máscaras, however, was
what Professor Montoya did in class—essentially throwing away the
script of her traditional lecture presentation. Instead of describing
the ideas in the article, she asked the panel members for their personal
reactions to Máscaras. After a few of the panelists spoke,
hands started raising in the class. What ensued thereafter was a
remarkable fifty-minute discussion in which several dozens of students
proved willing to express views and experiences that took considerable
personal courage. What underlay the occasion was the tone set by
Professor Montoya, who underscored the emotional risks that make
discussions of race so difficult. Her moderation of the discussion was a
tour de force that included a gentle but firm corrective to one female
student of color who expressed skepticism towards a white male who
declared himself to feel vulnerable during these kinds of discussions.
“When someone says they feel vulnerable and at risk,” Professor Montoya
said, “we need to take that concern seriously.” Recognizing the feelings
of vulnerability and acknowledging how hard it was to share honest
feelings in such a context encouraged an unprecedented amount of student
discussion. Numerous students prefaced their comments with, “I’m going
to be hated for saying this…” The poignancy and authenticity of the
conversation prompted one first-year law student to exclaim toward the
end of the session, “These are the kinds of conversations we should have
been having from the start of the semester!” True enough, I had to
agree, but all in all, the discussion led by Professor Montoya was one
of the most remarkable conversations I have witnessed in the formal law
school classroom setting. For hours after the class was over, students
continued the discussion in the Forum outside the lecture hall, with
intense conversations among students who normally did not talk to one
another.
This extraordinary exchange prompted by the reading of Máscaras
could be attributed to the fact that it was Margaret Montoya who led
the discussion of her article. However, while Professor Montoya was a
truly impressive presence in the class room that day, I believe that a
consideration of Máscaras has the potential to stimulate similar conversations in other law schools even without her physical presence. Placing Máscaras squarely
in the context of challenging students to engage in a critical analysis
of law and their legal education, as well as frankly acknowledging how
hard it is to talk about race honestly, would seem to be a good
prescription for encouraging such discussions. The article has a
relevance that goes far beyond the literature of Critical Race Theory.
In the end, Máscaras has remarkable potential as a catalyst for discussing important questions about the nature of law in America.
Cite as: Christian G. Fritz, The Perils and Promise of Teaching Margaret Montoya’sMáscaras Article in the First Year Law School Curriculum, Harv. J. L. & Gender (Feb. 2013) (reflection on Margaret Montoya, Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women’s L. J. 185 (1994), 15 Chicano-Latino L. Rev. 1 (1994)).
[1] Margaret E. Montoya, Máscaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women’s L. J. 185 (1994), 15 Chicano-Latino L. Rev 1 (1994).
[2]
John T. Noonan, Jr., Persons and Masks of the Law: Cardozo, Holmes,
Jefferson, and Wythe as Makers of the Masks 6–9 (1976). Noonan’s
insistence on the importance of taking into account the inevitable “back
story” of appellate cases—the daily diet of first year law students—was
poignantly underscored by Professor Montoya’s experience with her
criminal law class discussion of the tragic circumstances that led to
the manslaughter prosecution of Josephine Chavez. See Montoya, supra note 1, at 201–06, 18–23.
John T. Noonan, Jr., Persons and Masks of the Law: Cardozo, Holmes,
Jefferson, and Wythe as Makers of the Masks 6–9 (1976). Noonan’s
insistence on the importance of taking into account the inevitable “back
story” of appellate cases—the daily diet of first year law students—was
poignantly underscored by Professor Montoya’s experience with her
criminal law class discussion of the tragic circumstances that led to
the manslaughter prosecution of Josephine Chavez. See Montoya, supra note 1, at 201–06, 18–23.
[3] Duncan Kennedy, Legal Education as Training for Hierarchy, in The Politics of Law, 40 (David Kairys, ed., 1982) (critiquing the law school curriculum); Ann C. Scales, Surviving Legal De-Education: An Outsider’s Guide, 15 Vermont L. Rev. 139 (1990)
(providing a feminist perspective on the law school curriculum and
suggestions on how to get more out of legal education).
(providing a feminist perspective on the law school curriculum and
suggestions on how to get more out of legal education).
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