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[Remainder
of 5.05 turn omitted]
In this passage, the professor explains and clarifies a legal principle distinguishing
enforceable contractual agreements from gratuitous promises. Along the way, he
applies this principle to several specific fact situations, using examples to demon-
strate the doctrine. The beginning of the excerpt specifically points to a case previ-
ously discussed, involving “thirty-seven years with Mrs. Feinberg.” It contrasts the
situation in that case (where “there is no way to say there is consideration there
and make a plausible argument”) with the situation in the case currently being
discussed (“this one, there’s ways to argue it both ways”). Thus, the passage also
involves application of law to the specific facts of several cases and synthesis of these
cases in terms of an overarching legal principle. (And indeed, the professor moves
on immediately to discuss and apply the facts of the case at hand in more detail.)
88
Similarity
In the process of bringing the two cases together, the professor highlights for stu-
dents the facts on which they must concentrate if they want to use analogies to argue
for the validity of the agreement in the case before them. He is also demonstrating
how legal principles depend on and develop from factual situations—at the same
time as they constrain the telling of new legal stories.
In one sense, this is but a rather marked extension of structures found in other
classes of the study. All of the professors at times launch into mini-lectures, espe-
cially when clarifying legal points. And though this professor does rely heavily on
lecture, he also asks the students questions, and then often incorporates their an-
swers into the ongoing lecture. However, the overall proportion of lecture far ex-
ceeds that in other classes, and the professor does a great deal more of the work of
discussing all aspects of the cases, from factual exegesis to policy considerations.
By calling on the students at particular moments, the professor retains a much
attenuated version of the dialogue found in other classes. This, at least to some
degree, conveys a sense that this dialogic process is an important part of thinking
through and discussing legal texts. However, because he is taking on so much more
of the discursive load, the professor will also carry on the dialogue himself, inter-
nally to his turns. By asking rhetorical questions (“That’s starting to look like ex-
change, isn’t it?” and “What lies behind all of this?”), the professor can retain
something of a dialogic structure while limiting actual exchanges with students.
Here, as well, there is some continuity with the other classrooms, in which the other
professors also frequently ask questions that they answer themselves, albeit within
the span of much shorter turns.
Note also that the professor is conveying a number of metalinguistic messages.
First, he is instructing the students on how to order their own legal texts (i.e., ex-
amination answers) and arguments: they must “demonstrate” to him that they
understand when there is a “closer call, a close question.” Some fact situations pose
no-brainers; in these instances, there is really no credible way to argue two differ-
ent positions. Understanding when this is the case involves a highly developed sense
of which kinds of analogies work in legal settings and which would be considered
frivolous. And this entails making metalinguistic judgments about the limits of legal
categories, evolving in their ever changing genealogies through lines of cases and
of fact patterns.
Second, the professor directs students’ attention to forms of reported speech,
the talk that forms the basis of contractual agreements. He urges students both to
pay attention to the precise wording of agreements made between parties and to
look beyond the wording to find aspects of the situation that would indicate in-
tent. In the remaining portion of that turn (not included in the excerpt here), the
professor proceeds to spell out still further the metalinguistic rules governing this
kind of analysis, noting that the law will not attempt to divine the “subjective in-
tent” of the speaker. Instead, the law will focus on the “reasonable expectations”
that could be generated from a particular speech act, on “intent that you measure
from the objective manifestations.” Embedded in this instruction is a theory of the
relationship between language, context, and speaker intent filtered through shared
cultural assumptions about which kinds of language, in which contexts might rea-
sonably be interpreted to constitute a bargained-for exchange versus a gratuitous
Epistemology and Teaching Styles
89
promise.
3
Thus, students’ education in the techniques of legal reading contains an
abundance of subtle lessons in metalinguistics, always reorienting their gaze away
from the more accustomed warrants underlying a standard semantic deciphering
of stories, while creating new layers of filtering dictated by legal warrants and texts.
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