The Language of Law School This page intentionally left blank

parts of societies. However, Whorf teaches us that even these shifts will occur in
and through language, and thus can be studied there.
Another contribution of this tradition is an insistence that we examine more
than just words or concepts in studying language, so that we can capture the ha-
bitual patterning of cultural understanding that occurs through the use of whole
systems of language (grammars) day after day throughout speakers’ lives. Current
work in anthropological linguistics warns against a focus on individual words, as

---

18
Introduction
if they could by themselves embody realms of thought, or as if meaning inhered in
those segmented chunks of language rather than emerging from the active, cre-
ative use of a whole web of related sounds and meanings.
22
 Thus, if we are to un-
derstand how language shapes our social world, our focus must be not on mere
combinations of words, but on a complex linguistic structure that conveys meaning
in multiple interconnected ways. In addition, we must take account of the fact that
meaning is conveyed and created by the way linguistic structure is operationalized
in the actual 
use
 of language every time we communicate. This adds yet another level
to the analysis. Some schools of thought in essence throw up their hands when it comes
to language use, by implication viewing it as too unsystematic or vast or unimpor-
tant to be included in a theory of language meaning. By contrast, research in an-
thropology and sociolinguistics has elucidated the regularities and processes at work
in actual language use. I will briefly summarize key aspects of this approach.
We first visit the level of language structuring with which the Whorf-Sapir
tradition concerned itself: that of a background grammar or structure to language
categories. Building from work by Whorf and Sapir, Ferdinand de Saussure, Charles
Sanders Peirce, the Prague School, Roman Jakobson, and others, recent scholar-
ship by Michael Silverstein and other linguistic anthropologists has proposed an
exciting reversal of the usual ideas about grammatical structure.
23
 At the broadest
level, this shift moves us to a greater focus on the centrality of pragmatic, or con-
textual, meaning in language.
24
 Much previous work on grammar had proceeded
as if the main point of language structure were to convey static concepts, proposi-
tional information, or meaning that exists apart from any particular context. (A
noun, we can all recite in unison—paying homage to our grammar(!) school days—
refers to a person, place, or thing.) However, Silverstein’s work has clarified the
many ways that the social and expressive functions of language—the contexts of
culture and social relations, of prior texts and immediately surrounding language,
of specific speech situations and uses—are actually pervasive in linguistic struc-
ture.
25
 Grammatical structure is at every point responsive to the fact that it is a
system created in use, for speaking, for carrying on social relationships and consti-
tuting cultures.
26
 Far from being constituted solely of the static rules and abstract
categories we associate with our old grammar books, grammatical structure can
be conceptualized as the ever changing web of relationships between sounds and
meanings immanent in the millions of uses to which speakers put their language
every day.
27
 It is the most social aspect of language, in the sense that it is the com-
mon structuring that brings us close enough that we can find some way to com-
municate our private meanings in a shared tongue. And that is precisely why a view
of grammatical structure as constantly shaped and renewed in crucial ways by its
use in social context makes such good sense.
This socially grounded grammar provides a reservoir from which flow the more
and less predictable acts of speaking that constitute so much of our daily interac-
tion. It is through the creative use of this shared structure that we can forge rela-
tionships, hurt someone’s feelings, rupture the normal order of a meeting, or
interpret precedent in a novel way. But we have, of course, only begun to under-
stand these processes when we have analyzed grammatical structuring, even using
this new heavily contextual approach. Much of the meaning we create when we

---

Law, Language, and the Law School Classroom
19
speak depends on the subtle structuring of large stretches of discourse in particu-
lar contexts, and on the actual mobilization of many levels of language in each usage.
Thus, we move to several other considerations that are important to our analysis.
In looking at the structuring of whole chunks of discourse, we move beyond
the skeletal background framework of grammar to the richer, still more contex-
tual domain that has been heavily studied by sociolinguists. Larger stretches of
discourse are responsive to contexts of many kinds: social (e.g., we are people of
unequal social power speaking in a classroom), generic (e.g., I am using the genre
known as storytelling, building on a shared cultural sense of stories we both have
heard), intralinguistic (e.g., I am playing this new image against the images of
my immediately preceding utterance, or using poetic structure to convey mean-
ing), speech-contextual (e.g., I am referring to previous contexts of speaking,
28
or to the one I am currently creating as I speak), and many more. Sociolinguist
John Gumperz has analyzed how speakers rely on subtle “contextualization cues”
to orient ongoing communication by pointing to these layers of context; linguistic
anthropologists such as Brenneis, Duranti, and Goodwin have looked at wider social
and metalinguistic structures and ideologies as also playing a crucial role.
29
 This
larger structuring of discourse is not always something of which speakers are con-
sciously aware, so that conversation involves an astonishing coordination of back-
ground (often unselfconscious) cultural and linguistic knowledge with ongoing
conscious language use.
Here, then, is a meeting place for individual creative language usage and so-
cially shared structuring of language, at a level that is deeply cultural and only par-
tially available to conscious awareness.
30
 How intriguing it is that so many of the
key political and ritual discourse forms in other cultures can structurally mirror,
in very subtle and complex ways, the very model of society or language that they
attempt to reinforce.
31
 And, having recognized this link in “others,” anthropolo-
gists have returned to analyze a similar connection between language and politics
in the United States.
32
 As we trace the ways that language and the polity mirror
one another, the line between linguistic structure as a “model of ” and a “model
for” the social world can blur, so that our analysis reveals the mutually reinforcing
role of political language and politics itself.
33
Taking this perspective into the legal
field as it is revealed in the law school classroom, we would similarly want to in-
vestigate the general structure of “law school classroom speech.” Is there a mes-
sage conveyed by law school classroom discourses? What kind of relationship to
different contexts, both inside and outside of the classroom, is set up by the struc-
ture of law school language?
Finally, even an examination of the contextual structure of discourse in the
abstract is a step away from the study of actual language use—which is a form of
action, of practice. What happens when speakers put these structures of grammar
and discourse to use? Some language theorists have neglected this question alto-
gether, perhaps viewing actual language use as entirely idiosyncratic or incapable
of being theorized.
34
 However, in current scholarship, anthropological linguists and
sociolinguists are developing systematic ways to analyze linguistic performance,
examining the moment when speakers translate language structures and regulari-
ties into everyday use.
35
 Along with some social theorists, philosophers, and legal

---

20
Introduction
scholars, researchers studying language are stressing the centrality of social con-
text and human creativity in the analysis of how the potentials inherent in language
structures actually play out in everyday life. Previous work had, for the most part,
investigated the aspects of language structure or usage that are in some sense pre-
supposed when we speak.
36
 We could concentrate, for example, on the fact that
using a highly formalized register of speech tends to convey social distance and
reinforce or create authority (“Yes, sir”). This is an aspect of meaning that is pre-
supposed before and apart from any particular instance of speaking. However, as
Silverstein’s research has demonstrated, exclusive focus on this dimension of speech
use can lead us to underestimate the creative, contextual, and contingent aspects
of human social interaction and speech. So, to continue our example, use of a highly
formalized register (“Yes, sir!”) in a joking tone, suddenly, with someone you have
just gotten to know a bit better, could actually convey and create intimacy. (Note
that it would do so by pushing both of you to suddenly focus on dimensions of the
context that cause the use of distant, formal language to seem anomalous—a con-
text that is continually emerging in the ongoing interaction between you.) This
aspect of meaning is contingent, created in the moment by particular speakers.
Obviously, any adequate model of linguistic meaning would need to consider both
presupposed backdrops and ongoing creativity in language use in order to achieve
a thorough understanding of how we forge, rupture, and maintain social relation-
ships in and through language.
Another interesting discovery emanating from the systematic study of language
use is the growing interest in the reflexive, or 
meta
level of language: the way lan-
guage is pointing to itself as it is used. We see this, for example, when we examine
indigenous speakers’ own understandings of how language works, otherwise known
as their “linguistic ideologies.” As Kathryn Woolard and Bambi Schieffelin explain,
summarizing several strands of thought in the field, the concept has been used in
a number of ways:
Linguistic/language ideologies have been defined as “sets of beliefs about language
articulated by users as a rationalization or justification of perceived language struc-
ture and use” . . . with a greater social emphasis as “self-evident ideas and objectives
a group holds concerning roles of language in the social experiences of members as
they contribute to the expression of the group” and “the cultural system of ideas about
social and linguistic relationships, together with their loading of moral and political
interests” . . . and most broadly as “shared bodies of commonsense notions about the
nature of language in the world.”
37
On the one hand, language ideology can operate at a broad, conscious level,
as when a social group is consciously linked with a form of speech that is taken to
mirror their identity (if a stigmatized subgroup of a population, for example, is
linked with a “lower” form of speech). Susan Gal and Judith Irvine would charac-
terize this as a form of iconicity or mirroring, one of several distinctive semiotic
processes that they identify as part of the process of linguistic ideologization.
38
 On
the other hand, language ideology can also operate at a more subtle microlevel. It
turns out that how we conceive of the details of speaking is a central part of the
structuring of everyday discourse, not just an accidental or incidental aspect.
39
 At

---

Law, Language, and the Law School Classroom
21
all points, our ongoing language use depends on an equally ongoing assessment of
what it is we are doing (e.g., having a fight, explaining a legal doctrine, giving tes-
timony, using technical language to exclude nonexpert listeners). We draw on
preexisting notions and categories of discourse (e.g., fighting, explaining, testify-
ing), and these are also always up for reinterpretation or even contestation (e.g.,
“No, I won’t fight with you” or “You’re not explaining a legal doctrine, you’re
perpetuating the violence inherent in legal categorization!”). This framing of in-
terlocutors’ understanding of “what we are doing as we speak now” actually im-
pacts the very meaning of the words we speak: I can say “Oh, the hell with you,
then” and have it mean the end of a relationship, a moment of joking repartee, a
crestfallen admission that I’ve lost an argument, a powerful moment of refusing to
let someone bully me. And much of this meaning will be given by the multiple layers
of context (where, with whom, how, why, with what background, etc. I am speak-
ing) in combination with my (and my interlocutors’) metalevel understandings of
what it is we are doing when we are speaking. This is subject to continual negotia-
tion, not set in stone. Large shifts in meaning may depend on small shifts in into-
nation, the raising of an eyebrow, or the use of one pronoun rather than another.
Thus, there is presupposed, shared cultural knowledge but also ongoing social cre-
ativity always at work as we speak. And nothing less than the ongoing structure of
our relationships, societies, and selves are at stake in this process.
This vision of language meaning—as multiple and overlapping, structured and
contingent, shared and individual, presupposed and creative; as emergent from the
use of language in context; as culturally forged and shaped in a practice of speak-
ing that is different in different cultures and languages; as central to social institu-
tions like schooling and law—is a vision that lies at the heart of much of the most
exciting current work in linguistic anthropology.