The Language of Law School This page intentionally left blank

particularly criminal ones, the case can move up and down these levels a number
of times, as, for example, when an appellate court rules that a lower court’s deci-
sion was in error and sends the case back for reconsideration or retrial, or when a
prisoner, having exhausted appeal procedures in the state system, attempts to re-
ceive redress in the federal system.
The procedural history of a case frames and delimits the current text’s author-
ity. The words in the opinion have force only because the case was formulated and
reformulated in a particular way through successive procedural stages, and they
have only the force that is prescribed by the procedural stance of the opinion. Thus,
the technical term that the professor is training the student to notice in our ex-
ample links the text to previous linguistic contexts, to courts and opinions that
were part of its procedural development. If the case was not appealed properly from
the court below, then the appellate court may lack the authority or jurisdiction to
rule on it at all. Or some specific issues may not be properly before the appellate
court if there was some defect in the procedure by which they were appealed.
The uptake structure of classroom discourse is pragmatic in the sense that it
conveys meaning by virtue of its contextual grounding, referring both to the writ-
ten text assignment and to the unfolding linguistic context provided by the
teacher-student exchange. This contrasts, for example, with a lecture, which can
be characterized as conveying meaning through a far greater reliance on seman-
tic content, independent of any particular context or set of listeners. And if the
uptake sequence is a pragmatic structuring of classroom discourse, the technical
term it highlights in Transcript 4.2 is a key to the pragmatic structure of the
written text—a structure by which the legal opinion takes on authority in the
current context, a contextual connection that provides social power. In other
words, depending on the manner in which the case was appealed, this court is
empowered to decide on some things but not on others, and the words of the
court have effect only within that framework. Here the pragmatic structure of
law classroom discourse is used to train students to read written legal texts
through the lens of their legally specified pragmatic structures.
Transcript 4.3 provided a slightly more complex case. There, the technical
words to which the professor directed students’ attention were not procedural but

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58
Similarity
doctrinal concepts, derived from past cases, which structured the authority of the
text in a different way. Legal doctrines emerge from courts’ decisions on similar
issues over time, in a process by which legal precedents develop. For example, in
his classic essay on legal reasoning, Edward Levi traced the development of a legal
doctrine that held manufacturers liable for injuries caused by “inherently danger-
ous” objects.
36
 The logic guiding the evolution of this doctrinal category, as Levi
demonstrates, was anything but clear at times; however, it certainly drew on the
language and reasoning of previous cases involving injuries caused by manufac-
tured items. Judgments as to which injuries, items, and situations could properly
be deemed analogous to one another are crucial to this process of doctrinal rea-
soning and development. Doctrinal categories provide conceptual presuppositions
that allow subsequent texts to speak authoritatively, as, for example, “On what
authority can the judge say this is a good defense?” The judge’s authority in this
case rests on correct deployment of the doctrinal categories, which themselves
derive their authority from their genealogy through previous cases perceived to be
in some way similar (and decided by courts properly situated in the hierarchy).
Once again, then, the technical vocabulary to which the professor directs stu-
dents’ attention involves reference to previous legal language: to the language of
earlier cases, distilled into doctrinal categories and concepts. Again, there is a prag-
matic reflexivity: legal language referring to previous linguistic contexts to achieve
authority. And again, this aspect of the text is conveyed to students using a similar
reflexivity: the language of the classroom referring to the language of the case, which
provides the context that gives it meaning.
Toulmin has used the term “warrant” to talk about the background informa-
tion that allows us to make assertions.
37
 In this case, the professor is focusing stu-
dents’ attention on the pragmatic warrants that give legal texts their authority, and
is doing so using the pragmatic structure, rather than the semantic content, of class-
room speech.
38
 This isometry may account for the pervasive sense that the Socratic
method is better suited to law school teaching than lecturing, despite studies that
show no appreciable difference in results.
The approach to text inculcated in the law school classroom, then, differs
considerably from that conveyed in lower-status reading classes. There, nonuptake
blocks students from narrative control so that the text remains language to be re-
peated or pronounced. In the law school classroom, uptake is part of a structure
designed to break down a straight semantic reading of texts, at the same time as it
undermines the norms of normal conversation.
39
 Instead of approaching written
texts as stories and classroom exchange as a chance to tell these stories, students
are trained to focus on those texts in terms of layered legal authority. The levels of
authority in legal texts are indexed through the successful deployment of techni-
cal terms, which the students must identify through their readings—at the same
time as the students must themselves successfully deploy technical terms in a dis-
ciplined classroom discourse. The content of the texts—stories of human conflict
and pain, of moral dilemmas and social injustices—is subtly subjugated to the struc-
tures and strictures of law.
Thus, the ideology that is quietly conveyed here privileges levels of legal au-
thority in the deciphering of texts, rather than the emotional or moral force of the

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Learning to Read Like a Lawyer
59
story involved or the various potentially relevant social contexts. In searching the
text for these layers of legal authority, students learn a style of reading that filters
and frames the story of the case in a new way. Now the core messages for which
they search the written text focus on relationships with previous legal texts, with
authoritative authors—usually courts or legislatures—and with the legal actors who
guided this particular case through earlier stages of the legal process (the trial judge,
the jury, the attorneys on either side who shaped the arguments now at issue). A
legal reading is first and foremost about textual and legal authority—about prag-
matic warrants—and often that authority is to be deciphered from unpacking
metalinguistic connections among legal texts and authors. When these connections
have been established to frame the discussion, then the teaching of legal reasoning
can proceed within this frame. The core questions and issues become ones dictated
by the legal warrants, and students are taught to reason and speak using the cate-
gories and analogies that are salient within this legally delimited view of the con-
flict at issue in a particular case.
Another obvious and ubiquitous feature of Socratic method teaching is its
insistence on a dialogic or argumentative form from which, eventually, legal truth
emerges. This has some very obvious parallels with courtroom discourse and with
the U.S. legal system’s overall dependence on procedure as a guarantor of justice.
40
(As long as both parties get their day in court, represented by attorneys who will
engage in vigorous linguistic combat on their behalf, justice is done.) The classic
Socratic dialogue in law teaching, then, both indexes and mirrors a core legal model
not only of how knowledge or truth is obtained but also of how justice is achieved.
This powerful combination of epistemology and morality carries with it implica-
tions for conceptions of self, defining the contours of relevance that also shape legal
conceptions of identity and personhood.
41
 In one sense, we could question whether
the classic law school teaching method really is a dialogue embodying two distinct
voices, because its goal is to herd unruly interlocutors into a single, uniformly legal
discursive approach. On the other hand, a defining feature of that approach is a
continual shifting between adversarial positions, which are quite clearly defined as
distinct and opposed voices. As we will see, this apparent contradiction is resolved
when we pay close attention to footing in law school discourse. A close examina-
tion reveals that law teaching very commonly combines a division between sharply
demarcated and distinct voices with ubiquitous elision of footing.
42
Through our examination of Socratic pedagogy, we have begun to discern some
distinctive aspects of legal readings. In particular, we have seen that legal reading
relies on a contextual framework with layers of legal and textual authority. To pro-
vide a more comprehensive and in-depth understanding of this legal-textual frame-
work, we now turn to a broader overview of the core features defining a distinctively
legal reading of U.S. law texts.
Fundamental Aspects of Legal Readings and the Case Law Genre
As we have seen, law school classroom discussions provide a kind of prism through
which we can discern core features of legal readings and texts. Although there are,

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of course, many interesting variations and differences in the legal tradition regarding
how to approach particular kinds of legal texts, there are also points of common-
ality, discernable across the classrooms of this study. I discuss different kinds of
legal texts as “genres,” meaning that there are distinctive aspects of the texts that
identify them as cases, statutes, regulations, and so on, just as we might distinguish
between a short story and a novel. There are also somewhat different norms and
frameworks guiding legal readings of these distinct genres.
One feature of first-year legal education that is immediately apparent is a focus
on case law, on the written opinions that courts produce to explain the results
reached in individual legal cases. Much of the first year in U.S. law schools con-
centrates on reading cases, as did most of the discussion in the classes of this study.
The textbooks assigned for typical law school classes are called casebooks and con-
sist for the most part of a series of edited appellate court opinions, interspersed
with excerpts from relevant statutes, academic articles, and other pertinent mate-
rials. Because learning to decipher the cases in many instances calls for an under-
standing of relevant constitutional provisions, statutes, or regulations, an adequate
understanding of the case law genre often requires proficiency in other genres as
well. If we analyze the opinions reproduced in law school casebooks as instances
of a genre, we can begin to trace the outlines of an ideology of text and language
that is quite different from the textualism and schooled literacy found in other
arenas of U.S. culture.
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