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A Theory of the
Trial
). The danger, of course, is that there may be a variety of opinions as to how certain
situations should be dealt with across various strata of a society, and that the courts have
much better access to elite than nonelite points of view (clearly problematic in a pur-
portedly democratic state).
61. This is something of a simplification, as the class discussion had evolved into a
more complex discussion of the issues surrounding unilateral contract formation, as when
an offeror invites acceptance through performance. But understanding of these complexi-
ties is not necessary to the central point I’m making here.
62. One could think of this as reading for varying “interactional texts.” The recourse
to “unregulated” storytelling in law school classrooms finds an interesting parallel in the
jury room, where jury members during deliberations often tell stories that are not part of
the formal evidence (and therefore have not been subjected to the usual legal procedural
safeguards, such as cross-examination). Bennett and Feldman,
Reconstructing Reality
.
63. Sarat and Felstiner,
Divorce Lawyers
, document the way that divorce attorneys
use this kind of narrative to lower their clients’ expectations of the legal process while also
increasing their dependence on the attorney’s networks and expertise.
248
Notes to Pages 63–77
64. This is an example of how political and legal texts can serve as indexical icons of
political and social structures, as discussed earlier.
Chapter 5
1. In this classroom, unlike most of the others in the study, the professor called on
students by their first names. In accordance with our human subjects protocol, I have
changed the names of the students so as not to provide identifying information, but I am
using first names in the text to convey the informal character of the discourse.
2. Note that the first “I’m sorry?” here initiates an abortive comprehension check;
the professor didn’t initially understand the student. The “Oh” signifies her quick com-
prehension of the student’s comment, followed by an apology.
3. See Yovel on the related concept of “normative importation” and in the context
of contract law. Yovel, “The Language beyond Law” and “What Is Contract Law ‘About’?”
4. Of course, because no exacting linguistic study of the Socratic method in its hey-
day exists, we cannot be sure to what extent the stereotype captured actual practice. It
could be that even the classic Socratic teachers paused here and there for mini-lectures
or gave students answers to a greater degree than is admitted by the standard stereo-
type. See Chapter 7.
5. Transcript 4.16, in which a modified Socratic teacher briefly digresses to discuss the
possible influence of race on a case under discussion, illustrates the fact that there is overlap
among the different teaching styles I’ve identified. In this case, the professor gives a brief
lecture that is bracketed on each side (and in the middle) by question-answer format.
6. See also Chapter 4, note 42.
7. Technically, the UCC is a proposed uniform law that must be separately adopted
in each state if it is to have effect there, and the states are free to refuse entirely or to adopt
with alterations. It is quite common, however, for first-year Contracts classes to use the
UCC itself rather than any particular state statute.
8. It is also the case that both of the professors of color in the study (one woman,
one man) are included in this group of teachers who rely more on shorter exchanges. It is
obviously inadvisable to generalize from these findings, however, partly because this study
does not involve a large random sample that would permit such a generalization, and partly
because that sort of approach would invite an essentializing of race and discourse that is
unsupported by any solid research. (By contrast, there are some indications in the social
science literature of possible gendered differences in approaches to discourse, although
the area is predictably rife with debate, and again it would be important to give careful
consideration to the nuances and variations found across contexts.)
9. Note, however, that 47% of class time is spent in dialogue of some sort, as opposed
to 10% in the predominantly lecture class, a marked difference.
10. Transcript 4.15, also from a short-exchange classroom, shows the open texture
of policy discussions in such classes, with two students speaking one after the other, un-
mediated by the professor (a very rare occurrence in the law school classrooms of this study,
found for the most part in the short-exchange classrooms). Yet in Transcript 4.18, at the
end of the chapter, we see once again the versatility of discussion in these classrooms, as
the professor uses a more typical Socratic form to invite a statement of facts from the stu-
dent, and then repeatedly interrupts to be sure the student properly separates legal con-
clusion from initial fact construction.
11. See Chapter 4, note 48.
12. In one sense, it will not be surprising to hear that teachers can use vastly differ-
ent styles to convey the same ideas. But there is a particular question about this in law,
Notes to Pages 80–94
249
where the teachers are attempting to shift students’ approach to discursive style itself, along
with accompanying ideologies of text and language. The mystique surrounding Socratic
training in law schools has survived generations of assaults by now; this study suggests some
reasons why that might be. At the same time, it demonstrates the multitude of ways pro-
fessors can convey the same message through a variety of discursive forms.
13. Philips,
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