The Language of Law School This page intentionally left blank

Text as Process
Just as research on language structure has led to an emphasis on the crucial role of
context and language use in organizing how language in general conveys meaning
(see Chapter 2), studies of the ways written texts carry meaning in human societ-
ies have similarly demonstrated the importance of contextual analysis to under-
standing the significance of these texts. However, following initial work that simply
emphasized the importance of context to textual interpretation, recent work is
“in the midst of a radical reformulation wherein ‘text,’ ‘context,’ and the distinc-
tion between them are being redefined.”
4
As part of this reformulation, researchers
like Bauman, Briggs, and Silverstein have questioned a clear-cut division between
text and context, casting doubt on the utility of such a reified and static concept-
ualization. Rather, building from a new framework centered on language prag-
matics, scholars analyzing written and other texts now focus on processes,
analyzing “contextualization” of texts rather than “context,” “entextualization”
(the process by which texts are created) rather than “text.”
5
The action discussed under the rubric of entextualization is a first step in the
process by which text is recontextualized; it is simply “the process of rendering
discourse extractable, of making a stretch of linguistic production into a unit—a
text
—that can be lifted out of its interactional setting. A text, then, from this van-
tage point, is discourse rendered decontextualizable.”
6
 It follows that the word
“text” in this sense can refer to units derived from spoken as well as written dis-
course, as with a myth that is passed down through oral tradition. Silverstein dis-
tinguishes between the “
text-artifact
, such as a graphic array on the printed page”
(i.e., the physical object),
7
 and the varieties of more 
abstract text
 connected with
these text-artifacts, for example, the “denotational text” (roughly, what this stretch
of discourse “means” in a denotational or semantic sense), which can be differen-
tiated from the “interactional text” (again roughly, what this stretch of discourse
“means” as an instance of social interaction: what it “does” socially).
8
 In this book,
I generally distinguish the text-artifacts of legal cases by referring to them as “writ-
ten texts,” as opposed to discussions of text or textuality, or of the “meaning of
texts” in a more abstract sense.
This new approach to the study of textuality allows researchers to examine the
dynamic process through which interpreters invoke features of texts in creating and
shaping their contexts of use. Here text does not exist entirely apart from context, as
something that is then acted upon by contextual factors; rather, features of the text
influence and form a part of interpretive context. This new approach problematizes
the creation of texts as detachable chunks of discourse, asking about the process by
which speakers segment discourse into texts that can then be removed from one
context (decontextualized) and put into another (recontextualized). Note, as well,
that the move to examine process also highlights human agency to a greater degree,
reminding us always that texts are created and recreated through people’s actions
and interpretations.

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46
Similarity
One need only think of the process by which legal texts become precedents to
understand this approach. An important aspect of the authority of the legal opin-
ions issued by U.S. courts is their appeal to prior cases as precedents. Thus, a judge
writing a new legal opinion will commonly draw on previous cases; each citation
or quote is essentially a claim that this new decision rests on previously established
principles and law.
9
 It would be possible to understand the text of a case that is
invoked as precedent as a statically conceived entity that exists apart from context—
a chunk of case law easily extracted and placed in various settings. This kind of
static model might indeed proceed to consider the role of context, but it would
begin by assuming the unit of analysis—the precedent—as prefigured, defined
apart from its contexts. Even if the meaning of that static text is thought to de-
pend on some aspects of context—typically the “original” context of its writing—
the precedent would nonetheless be thought to exist apart from any subsequent
invocation. Instead, the new reformulation emerging from linguistic studies
would understand the creation and use of precedent as a complex interactive
process wherein our very perception of the original text as a precedent depends
on a segmentation of some part of the precedential text that removes it from its
setting in the prior case and recontextualizes it in a subsequent legal case. It is in
a very real sense not a precedent until it is reconstituted as such. In this creative
process, the precedential text as it is now conceptualized is in one sense recre-
ated and reconfigured.
10
 At the same time, aspects of the precedential text (includ-
ing features of the prior context it is deemed to carry with it) now shape the new
textual context in which the prior text is being invoked. There is a blurring of the
line between text and context. Interestingly, legal actors’ self-understanding of this
process vacillates between a fairly naïve conception (in which the new opinion is
really just taking a set precedent from the older case) and one that accepts the idea
that invocation of precedent involves an inevitable transformation at some level.
11
The linguistic anthropological framework, as we have seen, also points to the
centrality of ideology, of metalevel understandings of what it is we are doing when
we use spoken language (see Chapter 2). This is no less the case when the language
in question involves written texts. Here as well, researchers have come to see the
ideologies of text and language at work in particular settings as crucial to the in-
terpretive process.
12
 The ideas that speakers and readers have about spoken and
written language are not neutral, and they shape how that language is understood
and used. Through analyses of the use of written and oral texts across societies,
scholars have isolated a core ideology that has governed much of Western think-
ing about textuality, an approach that could be characterized as a “referentialist”
or “textualist” ideology. This ideology, which is explored below in greater depth,
views written texts as in a sense self-contained, as carrying determinate meaning
that inheres in the written words themselves. What is central about texts, in this
view, is their referential or semantic content, and that content or meaning exists
within the writing, the written text.
Anthropological linguists and sociolinguists have demonstrated, however, that
when written texts are mobilized for human use, they necessarily depend on and
create context in order to have meaning.
13
 This has drawn increased scholarly at-
tention to the way written texts connect with their contexts of use, as, for example,

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Learning to Read Like a Lawyer
47
when the written script of a play is performed. In performances, it becomes quite
clear that the meaning of written text is conveyed not only through the semantic
content of the words, but also through myriad linguistic features connecting the
text to contexts
14
 (frequently to prior contexts as well as to the current one). These
features can be as subtle as a shift in intonation patterns or as an attitude conveyed
through facial expressions. We can all think of examples in which the “same” word
can carry quite divergent meanings in different recontextualizations; thus, it be-
comes vital to examine the different social functions that the “same” text might
be serving.
To make the point more vivid, let us take as an example several possible read-
ings of a seemingly identical written text—in semantic terms, the same words.
Imagine, for example, a high school teacher intoning with reverence to his class in
2006 the phrase “We hold these truths to be self-evident: that all men are created
equal.” Here the performance of an important written political text in the United
States conveys a meaning that is only partially dependent on the abstract meaning
or content of the words.
15
 Who, for example, is the “we” here? What does the use
of the present tense “hold” and “are” mean when repeated in this way in this time?
The meaning of the written text in this context depends in part on the role of the
speaker (teacher), the situational context (a classroom), the purpose of the speak-
ing (didactic, and in a sense political), and on many verbal cues indicating that the
utterance is to be taken seriously—not to mention many other aspects of the con-
text as well. It also depends on a relationship between this context and prior con-
texts—minimally, the context in which the original version of this political text
was written, but also the ongoing contexts that contributed (through history and
in the audience’s lives) to its current cultural valence. Implicit in the way that the
context of the first writing is invoked (or indexed), there may be a profound mes-
sage about a perceived continuity between the original authors and the current
readers, an assumed mingled identity in the word “we.”
16
 (There are likely also many
other assumptions invoked here about the relationships among text and various
contexts: for example, about the relationship between elites and all of “the people,”
and about the use of written text to embody timeless political ideals.) Through his
performance of the text, the teacher may be viewed as attempting to impart core
values of the polity to which he and his students belong.
Imagine now the identical words being repeated by a professor of history whose
great-grandparents were slaves and who has just described to her graduate students
aspects of slaves’ lives on plantations in the southern United States; picture her
repeating these words with angry irony, perhaps, or as an impassioned plea. Do
the words mean the same thing as when they were uttered in our first example?
Now who is the “we,” and what does the phrase “all men” mean? What are the
messages about the authority of the original authors, about inclusion or mingled
identity, about atemporal ideals embodied in political texts, about the just or noble
character of the polity, about democracy?
In one sense, we could say that the words say the same thing in both of these
contexts, that a reduced core meaning is arguably conveyed in both cases. The words
may in each case be understood to express a core aspiration for the American pol-
ity, and that aspiration could be roughly summarized as a democratic one: that all

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48
Similarity
members of the polity should be regarded as equal, accorded the same level of re-
spect, treated with the dignity owed all others. This could be viewed as a “residual”
semantic or referential meaning, a portable meaning that is carried from context
to context with this phrase. (We can locate this kind of residual meaning even in
the most context-dependent words, words such as “this” and “that,” for example.
The word “this” standing alone conveys little to us without more knowledge of the
context in which it was uttered, and yet we know that it probably referred to an
object that was closer to the speaker than any object introduced by the word “that.”
This sense of reference to something closer rather than farther is a residual seman-
tic, or context-independent meaning that is part of our interpretation of the word
“this” wherever it is used, despite its heavily indexical or pragmatic character.
However, to understand the meaning of any particular use of the word “this,” we
need to know a great deal more about the context in which it is being used.)
In similar fashion, we can point to a core semantic meaning carried by the
phrase “all men are created equal.” However, this residual acontextual meaning
does little to elucidate the full-blown import of the words as spoken in the two
contexts described above, and focusing on this context-independent meaning
would leave us with little understanding of what each utterance actually “meant”
to its speaker or audience. A textualist or referentialist ideology would focus our at-
tention on such residual, decontextualized aspects of meaning, to the exclusion of
the more contextually dependent aspects of meaning. However, anthropological lin-
guists and sociolinguists have convincingly demonstrated that such an approach
cannot accurately map how language conveys meaning; language is always relying
on both semantic (decontextual) and pragmatic (contextual) features to accomplish
this. Thus, it is necessary to combine attention to the meanings that are carried across
contexts through use of written texts with attention to the fact that textual meaning
is always dependent on context. This requires that we take account of the continual
process of extraction and recontextualization of the meaning of those written texts,
a process wherein what appears to be the same text changes and takes on somewhat
different meaning by virtue of new connections with novel contexts (i.e., through
heavily pragmatic or contextual aspects of meaning).
This view of textuality and written texts leads us to ask not only about the sta-
bility of written language across contexts, but also about how chunks of text become
extractable from their foundation in a particular written version, decontextualized
and recontextualized, in a highly social and somewhat destabilizing process. Through
what kind of process can judges extract phrases and portions of previous case texts?
Can they pick any old words out; can they transpose or alter the words; do all sets
of words from previous cases carry similar weight? And what is the overall ideology
of texts, writing, and language that gives any weight at all to some extracted chunk of
verbiage derived from a text written at a previous time under different circumstances
by certain judges? At the same time as they have argued for studying the detachabil-
ity of texts from previous contexts, however, language scholars like Richard Bauman
and Charles Briggs have also stressed that we should pay attention to the material
that “the recontextualized text bring(s) with it from its earlier context(s).”
17
Thus, in
addition to maintaining some decontextualized 
general
 meanings that are more
readily detached from specific historical contexts, ongoing recontextualizations of

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Learning to Read Like a Lawyer
49
written texts may also continue to rely on aspects of their previous contexts of origin
and use for the more