The Language of Law School This page intentionally left blank

Transcript 6.3 [7/20/8]
Prof.:
What’s- what’s a very reasonable alternative interpretation of the first
term, “first come, first served”? “As the entire metropolitan area lines
up to purchase coffee at forty-nine cents a tin, we will wait on you
and take your money in the same order of which you appear.” So
that’s why that’s not going to- that’s not going to change it. That’s not
an indication 
[ . . . ]
 Okay, how ’bout if it says, everything that we’ve
suggested previously, says “One per customer, one per customer”?
Offer or no offer? Now, again, you cannot answer the question
without measuring it against the legal rationale. Is there still a
potential for theoretical unlimited demand in this type of problem?
Yes. It’s not as easy knowing you can come in there and start ordering
it by the carload and trainload. 
[ . . . ]
At the beginning of the turn, the professor poses himself a question about
reasonable alternative interpretations of a (directly quoted) term. He responds
to himself with an unframed quotation, which is nonetheless recognizable as
such by virtue of the shifts in pronouns and tense (“we will wait on you” rather
than “they would wait on first-comers”). Here he appears to take on the voice
of a business that may or may not have made an offer to customers, speaking
to the entire metropolitan area in the second-person plural (“you”). This is,
however, clearly another voice as well: not the professor’s own, but that of one
possible interpreter of the written text, who is not necessarily rendering the
meaning of the text as the author would. The professor then proceeds to vary
the facts, creating a small hypothetical (“how ’bout if it says . . . ‘one per cus-
tomer’”), and poses himself another question, “Offer or no offer?” This ques-
tion is followed by a brief metapragmatic injunction about how to answer these
kinds of questions, and then by another question (“Is there potential . . . ?”),
which he answers (“Yes”).
These excerpts give a sense of how professors convey the primacy of dia-
logic and/or question-answer form in legal language and thought (thought and
language, again, remaining thoroughly intertwined in the indigenous, legal/
linguistic ideology). Not only must lawyers respond to and initiate argumen-
tative dialogue with others, but they should proceed when analyzing legal texts
using internal dialogue structured around the posing of a series of questions.
By midsemester, we see the students begin to adopt the format (albeit with
some interesting and creative variations) in their responses. One tacit episte-
mological lesson that is conveyed along with the discourse format is that legal
truth emerges through argumentative dialogue, the privileged discursive form
in this domain. Take one side, pose the appropriate questions, then take the
other side. From this ongoing debate will emerge legal analysis.
When I refer to a possible distinction between dialogic and question-
answer forms, I am indicating an interesting issue raised by possible differ-

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On Becoming a Legal Person
109
ences between “genuine” dialogue, in which there are distinct voices, and a
mere question-answer adjacency pair form (which may or may not instanti-
ate differentiated voices). Silverstein would characterize the original Socratic
dialogues as actually a form of monologue: “Plato writes dialectic monologue
but distributes it to multiple participants, frequently in the form of adjacency-
pair structures like Question/Answer, or Remark/Counter-Remark.”
22
 To the
extent that this is replicated in law school classrooms, Silverstein notes, the
discourse could be said to “inculcate a sense that legal dialectic is a procedure,
an algorithm of interrogation for generating Q-A pair part investigation of is-
sues-that-matter, seeking a telos.”
23
As noted previously (note 42 in Chapter 4), the smoothest instances of
Socratic questioning found in this study most closely approximate this “mono-
logue in the form of dialogue.”
24
 However, as we have seen, there are many
sources of variation on this prototypical form. First, a number of the class-
rooms in the study use shorter, more informal exchanges, sometimes ap-
proaching almost conversational style, in unpacking the case law genre. This
varies from being an occasional feature of class discussion in the more formal
classes (often during policy discussions) to being a central organizing charac-
teristic of the classroom discourse. Second, the unruly student voices frequently
break out of the constricting frame of even the more tightly controlled Socratic
exchanges, so that we can identify genuinely independent footing and voice.
Third, at many points professors are attempting to teach students to take op-
posing positions in legal arguments; in these instances they are actually coach-
ing the students to create and occupy distinct voices (for example, through
role-playing). Finally, one fascinating feature of law school classroom discourse
is the ubiquitous use of reported speech to represent different perspectives or
voices, right alongside a frequent blurring of footing and elision of bound-
aries in the construction of the legal self. (The blurring of footing, of course,
relies on there being a distinction in the first place.)
Thus, we can distinguish a number of kinds of exchanges, all of which
might be characterized as Socratic: (a) monologue in pair-part form, produced
in exchanges between one or more students and the professor (the classroom
analogue, perhaps, of direct examination in the courtroom, where ideally at-
torney and client together construct one narrative through their question-
answer exchanges, keeping in mind that the actual performance often falls
interestingly short of the ideal);
25
 (b) multiple kinds of two-part dialogue in
pair-part form (including one in which the professor and student respond to
one another in their own voices, and others in which professors and students
take on alternative voices or roles or make arguments, based on the exigencies
of legal argument; here, the closest legal analogue might be the dialogue be-
tween judges and attorneys during oral argument at the appellate level); (c)
discussions in which the class as a whole or multiple students chime in, either
mediated through the professor or (very rarely) unmediated, but nonetheless
using distinct voices (though generally this still occurs in pair-part structures);
and (d) an interesting interstitial category of coproduced speech in which the
professor acts much as a parent does when coaching a child who is not yet

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110
Similarity
proficient in a new verbal routine (so that the learner’s distinct voice is still
apparent in the back and forth between interlocutors).
26
 Some of these cat-
egories can overlap in a single exchange, producing very interesting patterns
of footing and voice. Note that Silverstein’s point about inculcating an algo-
rithm of interrogation still holds whether the pair-part structure instantiates
a monologue in search of a telos, or a dialogue whose purpose is the uncover-
ing of legal truth.
(4) An obvious, but important, correlative pedagogical message is the con-
stant metalinguistic emphasis on language form as the actual source of episte-
mological certainty: that it is in and through speech that cases unfold,
arguments emerge, and legal truth is discovered. Matoesian has correctly ar-
gued that this process conceals how law “constructs claims to knowledge, truth,
and facticity in the details of discursive interaction,”
27
 because the message is
conveyed through tacit metalinguistic structuring and ideology and is there-
fore naturalized. In other words, students are never explicitly told that episte-
mological certainty lies in dialogic form. Instead, they are gradually tutored
in a way of reading and speaking, at the same time as they are slowly reori-
ented to conceptualize people as above all producers of argument and strat-
egy. From this position, it appears natural to accept that the facts emerging
from the nested authoritative levels of discourse in legal settings will be the
basis for definitive legal findings, just as it seems unremarkable that we would
understand people who could be characterized quite differently (as distraught,
in conflict, behaving emotionally) as constantly motivated by their best pos-
sible strategic positioning in an argumentative territory defined by legal out-
posts. Thus, the same metalinguistic process that Matoesian identifies as
concealing the construction of legal epistemology and facticity 
is
 the process
by which these tasks are accomplished.
The use of direct quotation in law school classrooms moves even further,
beyond presenting the arguments of opposing parties, of courts, of lawyers,
or of internal dialogue in service of legal analysis. Professors also at times re-
count abstract theories in dialogic form, often after assigning a theoretical
article by a legal philosopher. These theories could be thought of as optimally
suited for presentation in third-person, descriptive format. And that does
happen. But in the following excerpt, we see the dialogic alternative, as the
professor presents the theories of two (of course, competing) legal scholars
on the issue of “specific performance”: