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[T]he law lives through language and we must be very careful about the language we use.1
INTRODUCTION
Law students learn the law and the language of the law from casebooks - casebooks filled with Supreme Court opinions. So, for example, when students begin Constitutional Law they will read Chief Justice John Marshall's influential 1803 opinion in Marbury v. Madison and learn that:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.... [The] government of the United States has been emphatically termed a government of laws, and not of men.2
Continuing through the Constitutional Law text about 500 pages, law students will read Lochner v. New York, written 100 years after Marbury, and discover that:
In every case that comes before this court, therefore, [the] question necessarily arises: Is this a fair, reasonable and appropriate exercise of the [police power], or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?3
Jump ahead another century to Melendez-Diaz v. Massachusetts,4 an important case from the 2008 Supreme Court Term,5 likely to appear in future casebooks. Here, students will be confronted with a description of a constitutional right framed in language that excludes women:
The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so.... It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. [Citations omitted.] There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial.6
What students learn from these opinions may not be limited to what the authors intended. They will learn that "male" is the norm,7 even in the world of law, and they might wonder if Marbury and Lochner were even intended to apply to women, since both cases predate female suffrage.8 Marbury and Lochner reflect their historical time in their use...