The Language of Law School This page intentionally left blank

Transcript 6.4 [8/40/11]
Prof.:
His argument is: “Look, the very fact that a person goes in there and
says, ‘Well, after all this has happened, I want specific performance,’
all right, is itself an indication that there is not substitute,” all right.
He starts off with the position, “Hey, both undercompensation and
overcompensation are bad, really bad,” all right. Then he says, “Look,
specific performance, is it something people are going to really want?
Because, in order to harass the other person, which is the main reason
given for why people will want it, you’re gonna pay a big price

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On Becoming a Legal Person
111
yourself.” Before we get- is there a difference between the way
Schwartz looks at compensation and Scott looks at compensation?
What is it that Schwartz says about specific performance that Scott
probably would not say? Does Schwartz say that specific performance
undercompensates or overcompensates? This is important because it
goes to the fundament- again, of what we think it’s about. What we
think damages are about. What’s his argument about specific
performance?
So, once again, the world is configured around argument, and we can best
understand even abstract theories by pitting them one against the other in ar-
gumentative dialogue. There is no question that in pedagogical terms, this
creates a vivid tableau for students seeking to learn these theories. And one
can imagine professors in other disciplines employing a similar strategy. How-
ever, this pedagogical tool arguably has particular resonance and impact in
the context of the overall epistemology and form of reading that is character-
istic of law training. And in the process, the people in legal landscapes, even
the philosophers who theorize about law, are defined by their positions in
dialogic argument.
An obvious extension of this logic is the characterization of legal actors
in terms of these opposed positions in a philosophical argument, especially
when they are conforming to the logic of a particular philosopher:
Transcript 6.5 [8/14/8]
Prof.:
Now what would a more fierce judge- a generous judge says to
you, “Okay, they’re trying to manipulate you, all right, into
relying.” Okay? What might a fierce- Holmes, Hand- judge do?
Student:
()
Prof.:
“Hey, don’t sit around relying.” Do- what?
Student:
“Get a contract and make a bargain.”
Prof.:
“Get the bargain. Make the contract. By relying, you’re doing
what?”
Student:
Being unreasonable.
Prof.:
Hmmm?
Student:
You’re being unreasonable, the reliance is not reasonable, because
the other person doesn’t know that you have decided to rely.
This excerpt provides a marvelous example of the complexities of direct quo-
tation when used both for characterization and for pedagogy at the same time.
The professor begins with the predictable dialogic opposition between two
conflicting philosophers and philosophical positions: the person and the po-
sition are elided as they are voiced together through the direct quotations
“Okay, they’re trying to manipulate you, all right, into relying” and “Hey, don’t
sit around relying.” The direct quotation form begins to break down under
pressure from pedagogical function as the professor formulates the next ques-
tion: “‘Hey, don’t sit around relying.’ Do- what?” The phrase “Do- what?” is

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112
Similarity
no longer clearly a direct quotation, as the professor slides more clearly into
an intriguing mix of voices. The student supplies the missing direct quotation
in his answer, and this pattern is repeated in the next exchange (“by relying,
you’re”
doing what
? “Being unreasonable”). Notice that the professor’s initial
invitation had placed the student directly into a dialogic exchange with the
two judges (“a generous judge says to you”), but by the final student turn in
the excerpt, the student is speaking to himself in the judge’s voice (“You’re
being unreasonable”), an intriguing use of the pronoun “you”! Here the in-
teraction of the imagined dialogue between judges and student with the ac-
tual pedagogical dialogue between student and professor creates a fascinating
and complex layering of voice and footing. In the process, the student is un-
moored from even the once-removed self created by the imagined role-play.
The quickly shifting footing elevates fluency in speech-participant roles over
the anchoring of self in any particular position.
The professor goes on to describe the “fierce” judge’s position as the “market”
or “business” position, which she opposes to the “generous” or “bleeding-
heart” position. This neatly packages characterization into catchphrases cen-
tered on identity as defined by discursive position in an argument. The student
is invited to imagine himself caught between these two conflicting ideologies/
interlocutors, responding to a judge who is berating him for his approach to
the bargain. The issue is triply contextualized in a single, vivid move: we have
at once the context of the abstract legal subject bargaining, of conflicting
political-philosophical traditions in Anglo-American jurisprudence, and of the
student as role-player in a classroom drama.
28
(5) Finally, use of direct quotation and dialogue to define and character-
ize legal personae in this way also stresses the essential contestability of any
story or account of events, reminding students always to look to the other side,
to ask what could be said in rebuttal. In a sense, each person becomes (mini-
mally) half of a pair-part structure, whose salience and location are defined
by discursive position in an argument. (Of course, there can be more than two
positions in more complicated cases.) The only limit to contestability lies in
the chain of authoring authority whereby legal facticity and guiding principles
are established. And this chain itself is composed of nested sets of arguments
and interlocutors.
Thus, we see that a great deal of power is packed into the positioning of legal per-
sonae as competing interlocutors in arguments. From a metalinguistic standpoint,
it is actually a speaker’s discursive position that turns out to be that person’s key
defining attribute in this system. And this position is a function of strategic con-
siderations. Note that this is quite a reductive understanding; it reduces the vast
complexities of personality, motivation, and the construction of self to the easily
summarized contours of discursive position. Just as we saw in Chapter 4, a legal
reading takes very complicated social events, issues, and people and uses the sim-
plifying filters of doctrine, procedure, and, here, argumentative/strategic position,
to translate complexity into manageable propositions. These propositions—the
holding of the case, for example, or the position taken by the plaintiff or appellate

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On Becoming a Legal Person
113
judge—are generally summarizable in a single sentence. As we will see below, out-
side the precision of this legally defined frame, students are free to imagine what-
ever attributes they want to in speculating about characters in legal dramas, just as
they are encouraged to freely imagine the policy implications and social contexts
surrounding the cases they read. Additionally, through the process of character-
ization in legal training, law students become increasingly comfortable with the
elision of animator, author, and principal footings as they prepare for a career in
which they must put words into people’s mouths without too obviously appear-
ing to do so. We have already seen that this involves speaking in the voice of par-
ties to the case, creating characters in a drama, in addition to characterizing those
people in particular ways. Later in this chapter, we will return to the question of
how role-play of this kind influences the conceptualization of people and self con-
veyed to students through legal education.
ECONOMIC MAXIMIZERS AND STANDARD AVERAGE FARMERS
:
READING PEOPLE THROUGH DOCTRINAL CATEGORIES
We turn now to those aspects of a legal reading, as it is taught in these class-
rooms, that frame people in more doctrine-specific ways, ways that may in large