The Language of Law School This page intentionally left blank

Transcript 5.5 [6/6/23]
Prof.:
What do- what constituted the promise, that’s a very good question?
What was the promise? Where do you get it from the materials? I
think it’s pretty clear. You’ve got her saying, “He promised I’d be
beautiful” and you’ve got him saying, “I didn’t promise anything.”
Fill that out a bit more and tell me how you can come to the
conclusion that he- she wins in terms of he did promise her a
beautiful nose?
Student #1:
Well, he promised her something in two surgeries. I mean, um, he
was specific enough to say it’s gonna take two surgeries to do this,
whatever it is, and considering that he’s a plastic surgeon and she’s in

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Epistemology and Teaching Styles
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the entertainment business and that she went to him because she
wanted to look more beautiful, I think, it’s- it can be (but) implied
that in two surgeries, “I’m going to give you a beautiful nose.”
Prof.:
You think that from what you’ve read of the record and what you
know of the case, that the transaction between them was one in
which he promised her to improve her appearance. She wouldn’t
have undergone the surgery had he not made that promise?
Student #1:
Mmmhmm.
Student #2:
Under that theory, though, anybody could sue any plastic surgeon
under, under an implied promise because if you imply that I’m going
to the plastic surgeon to be- to become more beautiful, if that
doesn’t happen then I would have grounds to sue then.
Prof.:
Well, one- one way that, that doesn’t happen is the physician is just
really // exceptionally //
Student #2:
// right // clear in having you sign I didn’t-wasn’t promised
any particular results. But 
[ . . . ] 
Why do you have the clear proof
here?
Student #3:
Because of the picture he said was stolen.
Prof.:
That was helpful?
Student #4:
I thought it was the fact that you had two surgeries. If there was just
one--
Prof.:
--apparent- well, it’s questionable as to whether they said in the
first place she was supposed to have // two; // I think, that the
testimony is conflicting on that, she ended up having three.
Student #4:
//Okay//
Student #5:
I think, she looked at the analysis they have under the remedy for the
breach of contract. 
[Rest of .23 turn omitted]
Here the professor is teaching the students to identify the particular facts that are
legally relevant to the question of how to define the actual promise underlying the
contract in this case. This line of questioning prompts the professor, at a later point
in the exchange, to take the students back to the jury deliberations, reminding them
that the facts as accepted by the appeals court are those approved by the jury below.
In Transcript 4.7, we saw this identical point made through a combination of fo-
cused dialogue and mini-lecture by the professor. Thus we see, over and over
throughout these transcripts, identical lessons taught through varying pedagogi-
cal means. The same set of tools—from recitation of facts through policy discus-
sion—are imparted in every class, with the same metalinguistic message attached
regarding the centrality of legal-textual authority. And note that although here we
have primarily focused on the discursive differences among the classrooms, we also
are repeatedly reminded of considerable continuities. All employ some form of
dialogue, all use lectures for clarification, and there is a similar deployment of
question-answer sequences in deciphering texts, whether internal to a professor’s
turn, or between professor and one designated Socratic partner, or among pro-
fessor and students with several interlocutors chiming in. Socratic dialogue may
provide a more precise mirroring of the message in discursive form (i.e., it has

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simultaneous iconic and indexical features), but the message is imparted in all of
these classes, and often with some echoes of this Socratic mirroring of pedagogical
message in discursive form.
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Summary
A shared message about legal reading is conveyed across diverse classrooms, pro-
fessors, and teaching methods. This is not surprising, for the students are being
trained to a common language: a new kind of reading, writing, and talking. The
tales of conflict that they might have read for plot, character, and moral are now
being dissected using new metalinguistic rules. In Chapters 4 and 5, I have delin-
eated the core structure and features of this new legal reading, concentrating on
the reading of cases across diverse classrooms.
In Chapter 4, we learned that professors reorient students’ gaze to the prag-
matic warrants that give legal texts authority. These warrants involve several kinds
of legal-textual lineages: the line of previous cases and other legal texts that a court
(or lawyers, or law students) can cite as authorities in deciding the case at hand,
and the procedural lineage of the case, traceable through opinions of lower courts,
the record in the case, and so forth. This new focus on pragmatic warrants is per-
haps most visible in the strict Socratic classroom, where the new structure of read-
ing is mirrored in the structure of classroom discourse.
However, the refocusing occurs in other kinds of classrooms as well. Even in
the classroom most heavily dominated by lecture, there are vestiges of a Socratic
teaching style, for example, the use of some dialogic structuring to convey the logic
of this new reading. This can occur either between professor and student or inter-
nally within the professor’s own turns, as he poses himself questions and answers
them. There is obviously nonetheless a vast difference in style between this class
and canonical Socratic method teaching. Yet despite this divergence, we find an
identical message conveyed about the structure of legal reading.
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That structure relies on constant filtering of conflict stories through the lens
of legal-textual authority. We have now explored the fundamental aspects of this
kind of filtering. First, courts look to lines of precedent that provide legal genealo-
gies for the case before them, accepting or rejecting analogies to similar facts in
previous cases. An intricate set of metalinguistic understandings governs the pro-
cess of building analogies. As we’ve noted, courts also parse other kinds of relevant
legal texts: statutes, constitutions, administrative regulations, uniform codes (such
as the UCC), Restatements, and so forth. Second, courts consider the ways that
legal procedure, inscribed in legal documents, circumscribes which facts to accept,
which legal issues to address, and what kinds of conclusions can be reached. The
transition to a new legal reading pulls students away from referentialist approaches,
which treat the text as transparent and view its core meaning as its referential con-
tent. Instead, here the text is understood as a repository of power, whose core
meaning centers on legal-textual authority.
We have also taken a closer look at aspects of the metalinguistic filter through
which legal-textual authority is deciphered and constrained. These aspects are

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taught in every classroom of the study. Students learn that the very construction
of the facts on which legal conflict stories are based involves legal filters: only
certain details will turn out to be legally accepted or relevant, and the determi-
nation of which details depends on the complex calculus of textual constraints
and metalinguistic warrants described earlier. The ability to decree the legal con-
struction of reality through delineation of facts gives legal language enormous, but
essentially invisible, power over social generalities. (And this power is expanded
further through the semiotics of policy discussions.) Legal categories are explicitly
matched with particular facts, so that students learn how to make a successful fit.
When courts make this match, new law is constantly being formed; thus, law both
emanates from and creates fact patterns. Professors also explicitly enunciate—or
bring students to enunciate—the backbone structure of legal principles shaping
the use of facts. In addition, professors point out the effects of legal procedure on
both fact construction and the development or application of law. Throughout,
and across a fascinating diversity of pedagogical styles, professors are conveying a
linguistic ideology centered on the crucial structuring role of layers of authority,
discernable in the text. Emotion, morality, and social context are semiotically
peripheralized in this process. At the same time, professors occasionally open up a
wide panorama of social and moral and personal stories that could arguably be
relevant to legal decisions at the fringes of the core legal reading. The lack of care-
ful analysis and substantiation in these wide-ranging discussions only furthers the
sense of legal power over social life. Although professors carefully marked bound-
aries between the different aspects of legal texts, they also at times encouraged
boundary crossing. When and how to blur boundaries among these components
of a legal reading itself becomes part of learning to read legal texts.
We have also specifically focused on the ways these facets of a legal reading
could be conveyed via quite different pedagogical means, from more heavily
lecture-oriented classrooms, through quasi-Socratic teaching, through classroom
discussion organized around shorter exchanges. Despite this diversity in form,
we saw that an identical set of strictures regarding reading legal texts is empha-
sized in all classes. These strictures focus attention on pragmatic warrants while
peripheralizing or erasing “extraneous” contexts such as social-historical settings,
emotions, and moral considerations. The result is a language that appears to be
able to effect a nearly universal translation of events, people, and actions into a
common language. This process renders disparate material equivalent or commen-
surable, but through the narrowed gaze of legal-textual warrants.
Thus, a core feature of U.S. legal epistemology, vividly visible in law school class-
rooms, is the new relationship created for legal readers with language and text. We
know things because this legal text says so, and we can only accept certain things as
important under this textual proof, while rejecting others. The overall linguistic frame-
work naturalizes and conceals any social, cultural, political, or ideological skewing,
hiding these kinds of influences behind the complex veil of intertextual layerings.
Susan Philips has analyzed the political implications of a hidden “intertextual gap”
between spoken and written law, demonstrating the ways this creates a function-
ally invisible opening for political maneuvering in courts.
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 In this chapter we have
seen how the same legal text could be read with different meanings, creating an

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open texture that in some ways belies the semblance of precision and certainty given
by other aspects of legal reading. This core aspect of legal metalinguistic framing
contributes to the possibility of what Philips calls “ideological polysemy”: “I argue
that the discourse has multiple meanings at the same time but that these meanings
differ in the degree of consciousness with which the judges as speakers recognize
or acknowledge them.”
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We have seen that the fundamental metalinguistic prin-
ciples guiding legal readings and orientations to language have built into them both
a receptivity to ideological polysemy and a mechanism for concealing this phenom-
enon when it occurs. This structure permits social power to affect legal discourse
in more or less covert ways. Having examined the structure of legal conflict stories
and readings thereof, ringed around with layers of legal-textual authority, we turn
now to ask about the legal landscapes and personae created by a distinctively legal
form of reading and creating texts.

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On Becoming a Legal Person:
Identity and the Social Context
of Legal Epistemology
97
I
n the previous chapter, we saw that a distinctive approach to reading written
legal texts is inculcated in law school classrooms.