The Language of Law School This page intentionally left blank

Individual Strategists, Economic Optimizers, and Standard
Average Farmers: “Character”izing Legal People
How, then, do professors “character”ize the people we find in the legal landscapes
of first-year Contracts classes? There is obviously a double meaning involved here.

---

100
Similarity
On the one hand, professors attribute particular qualities to these people, thus
“characterizing” them in quite specific ways. At the same time, these people actu-
ally become “characters” in narrated stories, legal personae who speak to us through
reported speech. In this process, they are stripped of some of the characteristics
that they themselves might deem important to their personalities and selves and
are objectified in a process that highlights features important to their construction
as actors in a legal drama, as characters in legal stories.
We can identify from the study data at least three kinds of influence that the
norms surrounding legal readings exert on the conceptualization of legal personae.
First, a core trope organizing legal readings is that of argument, particularly where
the case law genre is concerned. When they write legal texts or opinions, judges are
deciding which of two competing sides and arguments has won, and in doing so are
presenting arguments of their own. When professors discuss the people who appear
in legal narratives, they frequently present them in terms of the arguments they must
make, could make, are making, and so on, whether the people are parties involved in
the case, attorneys, or judges. Notice that in the process, legal narratives convert people
into speaking subjects whose primary identity is defined by their location in an ar-
gument (plaintiff, defendant, appellee, appellant, party, plaintiff’s attorney, judge,
public defender, prosecutor, drafter, etc.). With this focus comes a concomitant, often
tacit characterization of people as strategists: as organized around a strategic calcu-
lus regarding which arguments or actions will put them in the best position to win.
Thus, professors will often invite students to speculate about what a particular per-
son must have been thinking when she drafted the contract using certain words, or
when he behaved in a particular way. They also initiate the students themselves into
these identities, inviting them to take the positions of different parties or to make
strategic arguments. Through role-play and hypotheticals, students themselves be-
come people defined primarily by their ability to argue and strategize.
These two influences of a distinctive legal reading on conceptualizations of
the person would hold true regardless of which kind of subject matter or doctrine
was under discussion. However, there is a third kind of influence that is likely to
take different forms depending on areas of law (i.e., depending on whether we are
dealing with contracts, criminal law, torts, etc.): the definition of people in terms
of doctrinal requirements. In Contracts class, we are focused on economic trans-
actions that lie at the heart of capitalist exchange, and thus, arguably, at a very in-
teresting nexus of law and social structure. That the people who emerge from the
texts of contracts cases are characterized as economic maximizers, or in terms of
their occupational status or worldly belongings, is hardly surprising. On the one
hand, the language of economics has gradually infiltrated many other areas of law,
moving beyond cases dealing with strictly economic transactions to use an “eco-
nomic maximizer” calculus when analyzing family relationships and other inter-
actions formerly thought to center on noneconomic principles. This move has,
obviously, been the subject of a great deal of debate. Anthropologists might argue
that it is not at all surprising; just as a capitalist calculus has managed to work its
way increasingly into domains once considered relatively more autonomous from
the economic system, so an economic logic is (in ever more overt ways) coloniz-
ing areas of law once deemed independent.

---

On Becoming a Legal Person
101
The wildly successful introduction of economics into law school teaching
overall may well mean that what we observe in the Contracts classroom will be
generalizable to other classes. However, it is important to note that we can expect
somewhat different nuances to appear depending on the central features of perti-
nent doctrinal developments. In Criminal Law classes, for example, students will
have to learn what features of an individual’s behavior might suffice as evidence
that crimes were committed intentionally, or in the heat of passion, and so forth.
In Family Law, students will begin to untangle the unwieldy mess surrounding legal
attempts to discern the “best interests” of a child. In all of these cases, what is im-
portant about people is dictated by legal doctrine, as deciphered through a geneal-
ogy of analogies. Each area of law will pose its own dilemmas for students, requiring
them to separate some things that might otherwise be assumed to be linked in stan-
dard cultural accounts (someone’s prior behavior, perhaps, from one’s assessment
of how he acted in this particular instance).
I want to stress again that this is a double-edged process: the very same legal
norms that may strip a story of arguably important social context may also require
that we set aside biases against people based on background or past behavior that
should not be part of the judgment in a particular instance. But in either case, stu-
dents must prioritize doctrinal definitions of the person, setting aside other kinds
of information and approaches. As we will see, some kinds of cultural information
will be let in, in somewhat sneaky fashion, through the analogical process of doc-
trinal definition; others will not. Not surprisingly, it will be easier for the cultural
assumptions of the dominant group in society to make their way into a legal calculus
than it will be for other viewpoints. Nonetheless, to avoid any overly simplistic
mischaracterization of the process of legal reading being taught, it is important to
note that there is still an open texture to this reading that allows competing infor-
mation to enter at times, and yet also a rigidity to the frame that can discourage
some forms of open prejudice. At the same time, the effects of other forms of co-
vert social prejudice and power are disguised through a focus on layered legal-
linguistic frames.
PEOPLE WHO ARGUE AND STRATEGIZE
:
REPORTED SPEECH
,
FOOTING
,
AND FRAMES
We begin with the first two approaches to delineating legal personae, those that
cross doctrines and areas of law. These approaches define people’s central identi-
ties in terms of their roles as sources of argument and strategy. One of the most
ubiquitous characterizations of the people occupying the legal landscapes dis-
cussed in law school classrooms involves their capacity to make arguments and
to strategize. The parties, or people, whose disputes are described in the cases,
the lawyers who bring the cases, the judges deciding the cases, and the students
discussing the cases all share this central characteristic. They may make better or
worse arguments, may strategize with more or less acumen, but these activities are
central to who they are in legal narratives. Predictably, one common method of
focusing students’ attention on the centrality of strategic argument is to invite them
to occupy the roles of attorneys, judges, and parties—to make these characters’

---

102
Similarity
arguments for them. We will return to this aspect of characterization later, in the
discussions of role-playing and legal landscapes.
Not coincidentally, given the centrality of argument to defining legal perso-
nae, we also find that reported or quoted speech is a tool used ubiquitously by
professors in their characterizations. The speech being quoted is frequently fictional
or imputed, and may be either talk that would have been spoken out loud, or al-
ternatively, can be talk that is uttered internally, to oneself. The following example
is typical: