The Language of Law School This page intentionally left blank

Transcript 7.8 [5/24/3]
Prof.:
Promises of a limited commitment. What elegant language. What
abstract beauty. What could that possibly mean here?
Mr. O.:
To be honest, I only really understood, or I didn’t really understand how
it fit into the case.
Prof.:
These cases are very, very confusing and perplexing and they make you
want to throw the book against the wall. But then most of the cases in
this book will do that. Promises of the limited commitment. Try again.
What do you suppose that means? Forget about the () case for just a
moment. What do you think promises of a limited commitment means?
The ensuing dialogue causes both interlocutors some hard work, as the student
struggles with questions he is having difficulty comprehending. The professor nei-
ther ridicules the student nor gives up on him (although it seems clear that the
student might have wished that the professor did give up at some points!), but
continues doggedly to shift the ground of the questions, moving first back to the
open-ended prompt, “Tell me more about the () case,” then to a question that
provides strong structure, “Let’s put it this way, what’s the contract in that case, if
there is one?,” and then jumping on the student’s first clear response, “That’s simple,
that’s straightforward, and now we’re beginning to get somewhere.” As the dia-
logue progresses, the professor uses positive affirmations, repetition, first-person
plural-inclusive, structured questions, and reported speech (“as you said before”)
to provide encouragement and also cohesion with the student’s prior responses:
Transcript 7.9 [5/24/5]
Prof.:
What are we supposed to have before we have a contract?
Mr. O.:
Consideration?
Prof.:
That’s one possibility. Is there consideration here? Is there consideration
on both sides of this arrangement? And you’re quite right, this section is
concerned with consideration. It’s one of the things that’s going on. Let’s
try to find some. Is there any obligation on the side of the party ordering
the gas?
Mr. O.:
Mmm, I don’t think so.
Prof.:
No. Because, as you said before, Mr. O., it was “if” that party decided to
order the gas.
In the midst of the dialogue, the professor pauses, as did the professor in Class #4
earlier, to cue the student as to the legal test that is to be applied:
Here we have one of these fancy, very specific oral contracts. Is this barred by the stat-
ute of frauds? This isn’t a contract involving land, apparently, but there are other
problems in the statute of frauds, specifically, the problem of contracts that can’t be
performed within a year. Is this a contract that can’t be performed within a year? It

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Difference
doesn’t have any stopping and starting dates in it, does it? So we don’t know how long
it would take to perform this contract. In your view, is this a contract that cannot be
performed in under one year? (5/24/6)
We see again how much more framing and substance is given students here than in
the stereotypical Socratic exchange; the different parts of the test are clearly laid out,
the part that is applicable in this case is highlighted, and the pertinent facts from the
case are even selected for the student, so that he is left with only one out of many cal-
culations to make. At the end of the exchange with this student, the professor implic-
itly attempts to take responsibility for the discursive trouble in the exchange by saying
“I don’t know why I’m so inarticulate this morning,” and praises the student for “an
analytically satisfactory approach to the problem.” In attempting to generate interest,
this teacher, like the professor in Class #1, also uses a participatory technique to in-
volve the entire class: he periodically asks the class to vote on points that are being
raised in the discussion—another departure from the stereotypical format.
Thus, our modified Socratic classrooms retain the intimidating structure re-
quiring one student to remain in extended conversation through large parts of the
class time (in some cases, one student would carry the dialogue for an entire class).
It is clear from some of the transcripts that this format causes difficulties for some
students, regardless of the many discursive features sometimes used to create a
smoother and less intimidating environment. There is also some variability in pro-
fessorial response; as we’ve seen, not all of the extended dialogues proceed so
smoothly, and professors are not uniformly encouraging or gentle. At times the
joking responses and other devices used to move the dialogue past problematic
moments (talking over, supplying the answer, calling on another student) could
certainly leave a bit of a sour taste (as, for example, when in response to a student
who says “I would say no, but I’m not sure why,” the professor in Class #1 responds,
“See, that really takes away from an argument, if you don’t know why, you know?”
and moves on to another student). On the other hand, the transcripts from these
three classrooms contain numerous dialogues in which professors and students
produce relatively cohesive and coherent narratives developed through lengthy dia-
logues. This is in large part due to the ways the professors actually depart from the
stereotypical Socratic teaching method, providing a wealth of hints and cues, inter-
stitial explanations, and encouraging metacommentary to facilitate the coproduced
dialogue. They also routinely provide answers—that is, they pause for shorter or
longer explicit delineations of the doctrines at issue, their application to the facts
in particular cases, and the ways analogies can be built between cases. In his inter-
view with me, the professor in Class #4 explains the way he views his method as
departing from standard Socratic teaching:
EM:
Would you characterize what you do as Socratic teaching?
Prof.:
I, I- not in a pure sense. Definitely not. Because, the true Socratic method
is deeply skeptical. Doesn’t provide- never provides an answer. Maybe
provides slightly more and less leading questions that leave the impression
that the questioner has some point of view. . . . I had people