The Language of Law School This page intentionally left blank

Transcript 6.16 [3/12/8]
Prof.:
I think, it was one of the first occasions in which there was gonna be an
interracial fight, and, therefore, one of the reasons clearly not articulated,
clearly not arguable to the court, would be some racism that would enter
in- ah some concern on the part of the court that ah maybe people
wouldn’t pay, that they would boycott such a fight or maybe that
they would- maybe they would pay more. Racism is not the kind of thing
you would argue in the court, but it may have been a factor certainly in
the court’s refusing to let the issue go to the jury.
After acknowledging the possible impact of racial identity and prejudice, the pro-
fessor proceeded to focus the students’ attention on the “real” legal problem: the
“damage issues arising under 
Dempsey
,” which were discussed as a distinct, and
more central, matter. As we saw in Chapter 4, a different professor also mentioned
race at the beginning of the discussion of 
Dempsey
 but dismissed its importance in
the development of the case:
Transcript 6.17 [5/8/14]
Prof.:
So we’re talking about a time, thirty years later. Thirty years after the
fighters’ prime, thirty years after their prime, they meet. It’s unlikely
they’re going to fight thirty years later. I mean it’s unlikely that they’ll move
very easily. [[class laughter]] And the case of modern boxers, it’s the last-
they can’t even talk, let alone fight, [[class laughter]] at this point in their

---

On Becoming a Legal Person
119
careers. Now, what’s going on here, why does it take thirty years for
Dempsey to meet Wills? Now there are all kinds of overtones, racial and
otherwise in this case. But I think there’s a pretty simple explanation for
why Dempsey doesn’t want to fight Wills. And I don’t think- I could be
wrong about this- that it has anything to do with matters of race. I think it’s
a bit simpler than that. Take a wild guess, Ms. U.
Ms. U.:
He was afraid to lose?
Prof.:
He was afraid that he was going to get maimed by Wills, the “Brown
Bomber” who was probably the greatest boxer of the world, indeed, of
the universe at that point, and Dempsey wants to stay away from him,
okay? Now there are a lot of people who want to try to get him to fight
Wills, but there is, alas, a problem with the color bar in a lot of places and
there are a lot of promoters who won’t touch that fight and there are a lot
of people who are worried about the future of the sport. 
[ . . . ]
 Now
maybe Dempsey is worried about the future of the sport; my guess is he’s
worried about losing the battle. And maybe he finally realizes that that’s
what’s going to happen. He signs the contract and he tries to back out.
Now what do you do with the fact that he’s backed out of this contract?
What do we do with that? We know there’s a breach of contract, at least
the court tells us there’s a breach of contract. What does the promoter
here, the Chicago Coliseum Club, want to recover? Let’s start with the
first item. 
[ . . . rest of professor turn, focusing on lost profits, omitted . . . ]
A third professor covered the 
Dempsey
 case with no mention of race whatsoever
(4/7/8).
We also find this kind of approach to social context and identity in a class-
room taught by an African American professor, when an African American stu-
dent raises the question of whether the racial identity of one of the parties might
have influenced a case outcome:
Transcript 6.18 [2/3/37]
Prof.:
It could have. Th- and it may have been complicated. It could have been
important to the decision-making. And, in fact, I mean you could imagine
that all of this legal gobbledegook is simply a cloak for, you know, an-
racial animus. It’s a possibility. On the other hand, it could have been this
person simply put down the fact that the, ah, this is a quote, Negro, simply
out of a reflex. Out of a, you know, this race being important for the
moment (.) a reflex. And it really didn’t have anything to do with the
ultimate outcome of the case- that in fact if this guy Skinner had been
white, same result. Tough () sort of get beneath the- the um the ah (.) the
materials at hand. It’s not, I mean it could have been important, then again
it might not have been important. Tough to tell.
Here the professor is, of course, completely correct that it is hard to tell much about
this aspect of social context from the materials at hand, whether from the case ex-
cerpts themselves or the accompanying casebook commentaries and additional read-
ings. But then again, that is because elision and erasure and lack of precision on such
matters are intrinsic aspects of the legal approach that is being taught in these class-
rooms—and being enacted in actual case law decisions. Notice that in previous

---

120
Similarity
examples, there is no attempt to hide or deny the possible effects of racial or ethnic
identity on legal outcomes; indeed, any such attempt might risk rendering the sys-
tem implausible. Instead, there is a fascinating combination of a complete willing-
ness to accept the impact of social identities on case results, with an ongoing evasion
of any systematic inclusion or analysis of those impacts. Where a social science class
would focus on the ways we can trace or know about such impacts, law school train-
ing reserves certainty for the core story uncovered through legal readings and dis-
cursive practices. At the same time, random social and other aspects of people’s
identity dance freely at the margins. Perhaps people’s race or social situation affected
the outcome; probably they do sometimes. But we really can’t know for sure. We
can speculate as freely as we like, developing likely scenarios, imagining possible
motives. And then we must return to the core aspects of a person’s identity in any
legal story: those features defined by the relevant legal doctrine or procedure (off-
eror or offeree? plaintiff or defendant?). We do not ask whether someone is a gener-
ally reliable person. We ask whether she or he showed up at the time and place
specified in the contract, and with the goods as agreed upon. We ask whether some-
one precisely mirrored a contractual offer in accepting it, not whether he or she has
dreams of being a novelist. We may ask about the relative power the two parties had
in making a contractual bargain, but that inquiry will be very narrowly circumscribed
by the legal definition of what an unconscionable contract is; we will not, for example,
conduct a sociological examination of the way race, class, gender, educational back-
ground, the structures of neighborhoods or companies or the capitalist economy, or
a number of other factors may impact power. Social identity and context do some-
times enter contract doctrine, but in broad categories: consumers versus merchants,
for example. Even when race or gender becomes relevant, as they do in constitutional
law, they are extracted from particular social contexts and personal histories, and once
again, a legal reading will require that people step back from the usual coordinates
by which such identities are understood and look instead to the doctrinal catego-
ries.
31
 It should be noted that in the realm of Contracts teaching, there is one ap-
proach that might yield a somewhat different picture, and that is the “relational
contracts” approach. This approach attempts to focus on the relational matrix sur-
rounding contractual relations, and thus tends to give social analysis a more system-
atic place in legal discourse.
32
EMOTION AND MORALITY
:
ROLE
-
PLAY
,
LINGUISTIC IDEOLOGY
,
AND THE LEGAL SELF
We have seen that legal pedagogy pushes students to read for the metapragmatic
structuring of text and authority, as well as the discursive positions of legal perso-
nae. These moves toward more pragmatic readings of texts, and translations of
people’s stories, generally require students to suspend, at least temporarily, their
judgments about the emotional or moral aspects of events. Whether someone was
right or wrong, moral or immoral, reprehensible or ethical is not part of the cen-
tral structure of this pragmatic (and metapragmatic) approach to reading. If emo-
tion and morality become relevant, they will only do so through the carefully filtered
reading yielded by doctrine, procedure, and strategy. In one class, a student con-

---

On Becoming a Legal Person
121
fronted her professor about whether salespeople had to be honest in negotiating
with customers: