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Transcript 4.20 [8/40/6]
Prof.:
Well, that’s one side of it, and the other side of it is the one that says
“No, we won’t uphold it, because it’s not fair”- what kind of argument?
Student:
Unconscionability.
Prof.:
It’s an unconscionability-style argument
[ . . . ]
In a sense, these kinds of doctrines test students’ ability to develop a keen sense of
boundary deployment: they bring policy arguments right into the heart of doctri-
nal categories. And yet, students must still remember that the measure of whether
a contract is unfair enough to merit unconscionability status is not their own sense
of outrage, or that of an average person on the street. Even here, it is necessary to
look to prior legal decisions and patiently work out legally permissible analogies
or distinctions. Thus, a full legal reading of text involves constant calculations re-
garding the boundaries between fact telling and legal application, between expli-
cation of law or procedure and policy discussions—at times clearly distinct from
one another, yet at others wound together to form a complete legal narrative.
Summary
We have now reviewed two different vantages on the structure of a legal reading.
From the perspective of anthropological linguistics, we have seen the crucial role
of a peculiarly legal metalinguistic structuring in shaping how students are trained
to read written legal texts. From an internal vantage, we have seen how indigenous
metalinguistic categories function to organize written legal texts and readings
thereof. Throughout it is clear that this complicated structure continually reinforces
a focus on legal warrants and layers of authority, translated generally through the
lens of a characteristic textual analysis. To be sure, there is also an exciting open-
ness invited at the edges of this legal reading of text, one in which all kinds of so-
cial and moral considerations can be imagined, stories of all sorts can be told,
virtually any experience or event can be made relevant to some kind of legal ques-
tion or test. This sense of drama is heightened by role-play in class, with professor
and students standing in the shoes (or, more accurately, speaking in the voices) of
players on the legal stage.
Learning to Read Like a Lawyer
83
At the same time, a very stringent set of guidelines for unpacking legal texts is
conveyed, through overt instruction but also through a subtle redirection of atten-
tion. As students tell and listen to the facts, they begin to notice different aspects of
the conflict story encompassed in the written case law text. As they apply facts to law,
they learn rules for building appropriate analogies between cases. These rules are as
often gleaned from the way a professor retells the story, or redirects discussion to
students who are on the right track, as from explicit admonitions. Professors also
clarify the law to be applied, pushing students to identify the tests and standards to
be found in lines of cases (or statutory language). At times, the limiting structure of
legal procedure becomes a focus as well, when professors remind students of the ef-
fects of procedure on the establishment of facts or on the overall stance of the case.
It is only when the professor is sure that students know how to package the events in
question into these narrow legal boxes that classes engage in wide-ranging policy
discussions. These discussions open the door to a variety of social and moral issues,
which can be connected with some freedom to the legal questions at hand; however,
the class has now exited the core legal analysis.
Thus, at two levels, a legal reading appears to be capable of translating virtu-
ally any event or concern. First,
any
events involved in a conflict that winds up in
a legal forum can be translated as facts fitting into the narrow categories of a legal
reading, whether they involve the building of a church, agreements among family
members as to the care of an ailing relative, disputes between manufacturers and
buyers, franchisers and franchisees, and on and on. Second, discussions of policy
that surround these readings permit legal readers to speculate on almost any social
or moral aspect of the situation involved. Thus, a legal reading combines a nearly
universal translating mechanism with a narrowing filter that sharply constrains
which factual details and which policy concerns can actually affect legal outcomes.
This focus is profoundly metalinguistic in character: it runs events as well as social
and moral concerns through a complex filter structured around the interrelation
of precedential texts, text-based analogies, repetition of key phrases and terms from
text to text, and layers of legal authority relayed through and in layered legal texts.
Although professors may vary in how they convey these facets of legal reading, we
can nonetheless trace the same basic approach across all of the classes in the study.
84
Similarity
5
.
.
Epistemology and Teaching Styles:
Different Forms, Same Message
84
I
n this chapter, I discuss how the shared message identified in Chapter 4 was con-
veyed across variations in the teaching styles used by the law professors we
observed, focusing now on the diversity of discursive formats found in these class-
rooms. The chapter concludes with a programmatic outline of the peculiarly legal
approach to texts and human conflict conveyed to all of the law students in the
study, across these divergences.
Different Forms: Lectures, Modified Socratic Exchanges,
and Classroom Conversations
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