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[ . . . ]
Transcript 6.9 [6/5/2]
Student:
The plaintiff was a courier and he was supposed to go- he was hired to
go on a trip with um the defendant and right before um the trip the
defendant canceled the arrangement and said that he would not- that he
was not making the trip and did not- no () no longer using the
plaintiff’s services.
As one professor explained:
Um, one of the things that I find useful to do is to think about the people who are
suing each other in terms of their classification. So remember I’ve said that there are
three kinds of contract cases that we tend to take up, um, there are contracts for uh,
construction contracts, there are contracts for uh, employment, and there are con-
tracts for the sale of goods, all right. So one of the things that may be useful is to trig-
ger that: so are we dealing with a buyer and seller; are we dealing with an owner and
a contractor, are we dealing with an employer and an employee? All right, so that it
On Becoming a Legal Person
115
may be useful simply because- remember you may find that the rules are going to
differ depending on which category you’re in, okay? (3/3/6)
This succinctly summarizes how legal categorizations that emanate from rules
governing economic transactions can shape what will be foregrounded about
people’s identities in subsequent legal analysis.
At times, this abstract individual loses even the specificity of occupational
categories and becomes simply a buyer or seller, an offeror or offeree, a party to
the transaction:
30
Transcript 6.10 [3/3/6]
Student:
Ah, the plaintiff, uh the buyer is suing the () seller.
Transcript 6.11 [1/9/5]
Student:
I disagree. That- if the- it would be the offeree knew that the car was
burned up, the car was sold, or that the offeror had changed his mind
and said, “Hey, I’m not going to sell this”; if the offeree knew that, or
should have known that, I think that’s revocation of the offer.
Transcript 6.12 [5/24/21]
Prof.:
No, he doesn’t have to buy the land, but if he does, he has to sell it to
the other party.
Here people and problems are located in and as individuals operating against the
odd acontextual context of a legal geography, two contracting parties interacting
with one another, even speaking in the first person singular (“Hey, I’m not going
to sell this”), against the backdrop of legal rights and doctrines. One wants to buy
something, the other wants to sell: except for (presumably reflexive unmarked usage
of) gendered pronouns, we have no sense of these actors as people beyond their
postulated attitudes toward property and their bargaining interaction with one
another. Just as initial medical school training moves students away from a per-
sonalized understanding of the human beings whose bodies they will treat, legal
education pushes law students to place people in legally crafted categories, using
abstraction to distance themselves from human dimensions of their clients’ prob-
lems. The medical student’s eye begins to narrow on anatomical parts and systems,
losing a view of the body as a person. Likewise, the law student’s vision locates
people involved in conflicts using categories that define them in terms of doctri-
nal and argumentative positions.
At the Edge of Legal Categories: Identity and Social Context,
Emotion and Morality
What about other aspects of identity, aspects often made central in nonlegal
storytelling? Readers might want to know about a person’s character or per-
sonality, emotions, social background or status, and many other culturally iden-
tifiable features. As we have seen, a legal reading has room for almost any facet
of social context or identity—but at the margins. After the basics of doctrinal
116
Similarity
and procedural framing are established, or before moving into the serious and
systematic legal analysis, there is room for social specifics, framed as humor, place
setting, or courtroom strategy. The professor may mention in an aside that even if
doctrinal requirements have not been met, judges or juries may sometimes be per-
suaded by the particular circumstances of a case to overlook doctrinal difficulties,
perhaps to avoid manifestly unjust results. Alternatively, the professor may men-
tion in passing that social context or prejudice against certain kinds of people can
at times affect legal outcomes. When a case outcome seems to fly in the face of
prevailing legal doctrine, social context and emotion often emerge as wild cards
that can explain these apparent anomalies. In general, discussion of these sorts of
factors in the classrooms of this study rely on stereotyping and generalizations about
“kinds” of people or situations. Interestingly, there is often speculation about un-
derlying motivations packed into these discussions. The professors of this study
exhibited a considerable amount of variation in the degree to which they mention
such extralegal factors when discussing the people in legal texts. What all of the
professors shared was an insistent return to the core of a legal reading, using vari-
ous kinds of discursive markers to indicate the marginality of other factors.
IDENTITY AND SOCIAL CONTEXT
Consider, for example, the jump from ethnic stereotype to characterization of a
person and his motives in the following excerpt, all presented as ancillary to the
real guts of the legal reading under way:
Transcript 6.13 [5/10/2]
Prof.:
Mr. S. Is [student’s last name] Greek, by any chance?
Mr. S.:
No, it’s Polish, sorry.
Prof.:
All right.
Class:
[[laughter]]
Prof.:
Well, for the moment we’re going to assume that it’s Greek. Go on.
Class:
[[laughter]]
Mr. S.:
Okay, Mr. Ganas was a Greek and he uh was a waiter on-
Prof.:
Is it significant that Mr. Ganas was a Greek?
Mr. S.:
I don’t think it is. It shouldn’t be.
Prof.:
Well, let’s decide which it is.
Class:
[[laughter]]
Prof.:
Is it significant, or is it that you think it shouldn’t be?
Mr. S.:
Mmm (.) I think it shouldn’t, he shouldn’t- shouldn’t matter.
Prof.:
It shouldn’t matter.
Mr. S.:
No.
Prof.:
What a wonderful, absolutely American perspective. Just like a World
War I movie. It shouldn’t matter, you suggest, where you come from. It
On Becoming a Legal Person
117
shouldn’t matter what your ethnic group is. Let me disillusion you just a
little.
Class:
[[laughter]]
Prof.:
One of the wonderful rules in interpreting common law cases is,
whenever you have a party whose name ends in a vowel, rule against that
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