The Language of Law School This page intentionally left blank

Allegheny College
. It’s articulated in 
East
Providence v. Geremia
. It is articulated in both of the cases that we read for
tonight. And it is also articulated in section 90 of the Second Restatement,
which is on page 270 of the text. So, three elements of the rule. What that
means is, that when you want to make an argument for promissory
estoppel, you’re going to take the elements of the rule, promise intended to
induce reliance, detrimental reliance has occurred, justice required the
enforcement of the promise, and you are going to apply the elements of the
rule to the facts of the case: first, on behalf of the promisee and then you’re
going to have to anticipate what the promisor would say in response.
Okay? So that’s you, Ms. M. What you want to do is now say, “Was there a
promise made intended to induce reliance?” What was the promise?
In the contrast between the professor’s first answer (“No, not because of the injus-
tice”) and her second (which overtly includes “justice” as a part of the legal pic-
ture here), we have a powerful example of the crucial role of screening texts and

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124
Similarity
doctrines in legal reading. It is not that the student shouldn’t include some calcu-
lation regarding injustice in solving this problem. That calculation is in fact ap-
propriate here because the legal doctrine calls for it. But a reply in which “injustice”
appears unmediated by doctrinal screens is rejected; the solution lies in filtering
the issue of justice through layers of doctrinally delineated tests. Note that the pro-
fessor also goes on to make explicit the role of textual genealogy in creating these
legal filters. It is also worth observing that the professor again here urges on the
student a particular form of thinking about problems by advocating that she ask
herself a question from doctrinal categories and answer it through application of
facts. Thus, there is (at least) a double mediation here: first, running the facts
through layers of doctrinal filtering, checking for the relevant issues (which may
or may not include justice); second, performing that doctrinal check through a
question-answer pair-part form. Unmediated ethical analysis of injustice is not the
point, and indeed flies in the face of doctrinal analysis.
This doctrinal filtering is one of several ways in which students are tacitly en-
couraged to adopt a new, more distanced attitude toward morality and emotion.
Another pedagogical technique that furthers this shift is an insistence on the pri-
macy of ongoing argument or dialogue (or, at times, just ongoing pair-part re-
sponses). If students express discomfort or emotion, a common professorial
response is to urge them to channel their feelings into “arguments” (generally, of
course, framed in terms of doctrinal categories). Again we find some students strug-
gling as they are pushed to engage in this discourse:
Transcript 6.23 [5/8/8]
Student:
The contract, the original contract itself had a provision in it for prices
that change due to an advance in case of the rise in the wages, which
actually happened causing the forward contract to be much more
expensive. So, if we’re looking at expectation damages, then the point
that- I mean, in his contract that he would have, his original contract
that the coke would have been subject to rise as well, would it not?
Prof.:
I don’t know. What’s the relevance of that to--
Student:
--well--
Prof.:
--how we solve the problem?
Student:
(.) 
[rising intonation]
 It just bothers me. I-
Class:
[[laughter]]
Prof.:
What bothers you?
Student: