The Language of Law School This page intentionally left blank

quoted speech within quoted speech
: the student quoting the plaintiff quoting the contract.
22. Silverstein, personal communication, 9/23/05.
23. Id.
24. See discussion in Chapter 4, note 42. Interestingly, it seems that the most coop-
erative turn-taking in the modified Socratic classrooms approaches this ideal more closely
than does the more antagonistic discussion found in prototypical Socratic pedagogy. Breaks
in the monologic voice are more common when professors do not work as hard to
coproduce a smooth narrative. Minimally, continued negative uptake (such as that seen
in Transcripts 4.2 and 4.3) indexes a discordant voice that does not fit into the planned
narrative stream. When students cannot produce the desired responses, their voices quickly
emerge as distinct from that of the (sometimes increasingly overtly frustrated) professor.
Even in the smoothest of coproduced Socratic narratives, one can generally discern a mini-
mal distinction between the voices that emerge from the interplay of “teacher who is ex-
perienced in using this discourse” and “student who is awkwardly attempting to enter a
new discourse,” often evidenced through quite subtle linguistic features. (And, minimally,
through pronominal shifts, as in “What would you argue . . . ?” and “I would argue that.
. . . ”) Furthermore, as noted, the professors sometimes introduced distinct voices and
accompanying shifts in footing into the smoothly coordinated exchanges during role-plays
and hypotheticals. Thus the overall picture is quite complex.
25. Again, even in the most seamless of direct examinations we generally find the
residual difference in footing indicated by the deictic difference inherent in basic pronomi-
nal usage (Attorney: “Did you . . . ?”; Witness: “I did . . . ”; etc.), which identify one voice
as the “author-ized” source of key information, and the other as the conductor in charge
of the flow of talk. And there are often more marked shifts, as when an attorney comments
from his or her distinctive perspective on the narrative emerging from the client during
direct examination.
26. See Ochs and Schieffelin, “Language Socialization and Acquisition”; Ochs, intro-
duction; Schieffelin, 
The Give and Take of Everyday Life
.
Notes to Pages 107–110
251

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27. Matoesian, 
Law and the Language of Identity
, 107.
28. Here we also see an example of the quick distillation of complex positioning into
an easily recontextualized label; this process is ubiquitous in case analysis, and indeed is
arguably one of the key semiotic processes through which previous texts are put into ac-
tion in quick-moving legal discourse, especially as precedents. Of course, in this process,
much is simplified, elided, or lost (with complex aspects of social context as a particularly
likely casualty).
29. This would likely be different in classes where professors teach the “relational
contracts” model, using more sociologically oriented casebooks such as Ian Macneil’s
original work in the area, or the more recent Wisconsin Contracts materials. See Macneil,
Contracts
; Macaulay et al., 
Contracts
. Relational contract approaches do generalize
across contexts when developing categories for classifying the relationships with
which contract law must deal. In this sense, they move away from socially specific analy-
sis. However, relational contract theory moves decisively into social context in its at-
tention to the relationships that surround formal contracts and, in this sense, takes an
important step in the direction of incorporating contextual considerations into legal
analysis.
30. There are a few interesting exceptions, for example, cases involving family
members.
31. In a sense, this may be even more alienating for students concerned with prob-
lems of social inequality, because they will have to restrain strong feelings to perform this
act of stepping back. Because the focus of this study was on Contracts classes, it is beyond
my scope to discuss further this interesting question: How do students respond to courses
in which the very subject matter that law turns into doctrine is social identity?
32. On relational contract from a pedagogical perspective, see Macneil, 
Contracts
;
Macaulay et al., 
Contracts
.
33. Ochs, introduction, 5; see also Schieffelin and Ochs, 
Language Socialization
.
34. Schieffelin, 
The Give and Take of Everyday Life
, 75–80.
35. Initiated repairs of various kinds have been observed in numerous other lin-
guistic settings, including, notably, courtrooms. In her study of change of plea in Ari-
zona courts, Philips notes in particular a technique she calls “nailing it down,” in which
judges “simply ask question after question” until they overcome any resistance or de-
nial on the part of defendants and manage to elicit testimony in the desired form. Philips,
Ideology
, 95. The professor in this excerpt arguably takes the process still further, liter-
ally directing the student to repeat the exact word needed for him to proceed further in
the exchange. But certainly the overall form of law school dialogue, with professors’
persistent and sometimes repetitive questioning, can be viewed as having some affini-
ties to this kind of demand for repair on the part of judges (and attorneys), who are simi-
larly reliant on question-answer adjacency pairs in achieving some quite specific, legally
constrained, discursive goals.
36. A few of the professors occasionally reminded the students of the historical era
in which the case took place; one professor in particular did this far more than the others.
However, in the overall sample, invocation of history was unusual.
37. See Nourse, “Passion’s Progress,” for an astute analysis of how such doctrinal
analysis can conceal and naturalize a culturally based and biased calculus.
38. As we have seen, this attempt to reach the street level is at times indexed by shifts
in speech style, which are essentially a form of breakthrough to performance.
39. Bernard Weissbourd has similarly described law as a kind of semiotic nexus.
Weissbourd, personal communication.
252
Notes to Pages 110–132

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40. A study of attorneys by Garth and Martin revealed that although attorneys can
be quite critical of the efficacy of some aspects of legal education, they tend to agree that
teaching this background grammar of legal reasoning is one important function that law
schools do well. Garth and Martin, “Law Schools.”
41. Postone, 
Time, Labor, and Social Domination
, 159.
42. Id., 144–148.
43. Id., 158–159.
44. Id., 160.
45. Matoesian, 
Law and the Language of Identity
, 37–68.
46. Philips, 
Ideology
, 122.
47. Id., 87.
48. Philips discusses this when dealing with the intertextual relationship between
written and spoken legal genres. Id., 27–47.
49. Id., 90–91.
50. Elkins notes that lawyers “might reasonably be compared to the ‘shape-shifting’
figure of Greek mythology—Proteus,” constantly shifting between roles and perspectives.
Elkins, “The Legal Persona,” 750. See also Noonan, 
Persons and Masks of the Law
, 19, 167,
for a warning that law in its heavy use of roles and masks risks “classifying individual human
beings so that their humanity is hidden and disavowed,” urging instead that “the commu-
nity of rational discourse is rooted in the history of human beings. Persons speak to per-
sons, heart unmasked to heart.”
51. See Bauman and Briggs, “Poetics and Performance”; Hirsch, 
Pronouncing and
Persevering
.
52. Conley and O’Barr, 
Just Words
, 129.