The Language of Law School This page intentionally left blank

[of lawyer
ethics]
. In the ensuing discussion, a practicing lawyer gives a view from the trenches,
stating that he generally just goes along with the system (the implication being that
this is in fact realistically how the system runs). Another student says that she is
worried about the emotional student, characterizing him as being “innocent.” At
the end of the exchange, the professor suggests taking a class vote on the issue, but
backs off when a student asks whether it would be appropriate to do so in such an
emotionally charged atmosphere. The professor closes off discussion with the fol-
lowing comment: “About (.) quite frankly, I mean I have my own views on issues
like this which at some point I’ll express. But as a general matter on issues like this,
in terms of our Contracts class, we’ll find it mainly pretty agnostic the way I see
this; I don’t know what the ultimate views are and what you all do in the world.”
In conclusion, he notes that he sees his job as training the students to be “masters,
black belts of contract argumentation” (2/6/30). By the close of this exchange, the
emotion with which it began has been capped off, although backchannel rumblings
in the class indicated that a number of students were not satisfied with the out-
come. The professor has modeled for the student a split between the selves with
which he approaches these problems: there is the personal opinion, which he holds
in abeyance and over which he exercises control, and there is the professional re-
sponse, which is “agnostic” and whose primary goal is honing the students’ dis-
cursive power (quite literally; note the “black belt” metaphor). This approach is
somewhat reminiscent of the way a medical student might be taught to hold emo-
tional responses in abeyance while treating a badly injured patient, and then to deal
with personal responses later, putting them away while exercising professional

---

On Becoming a Legal Person
123
judgment and responsibility. In the lawyers’ case, that responsibility involves for-
mulating the best possible argument for their clients, seeing the issue from all angles,
and bracketing emotional responses that might limit their ability to analyze the
issue clearly. Analysis requires running the factual situation through metalinguistic
filters, mentally standing on each side of each argument and imagining the other
side’s response, and asking oneself a set of nested questions derived from the fil-
ters of doctrine and procedure (organized as discursive strategy). We can see the
double edge here. There is a power to bracketing off emotion when it helps to obtain
for a medical patient or legal client the full benefit of dispassionate professional
judgment, but there is a disempowerment in permitting only part of the patient’s
or client’s full experience to be considered.
As the semester proceeds, classroom discourse insistently channels ethical
questions and emotional responses into doctrinal channels:
Transcript 6.21 [3/26/6]
Prof.:
That’s good. All right. Why did the borrowers win? What is the court’s
explanation for why the borrowers should be permitted to recover on
this counter claim?
Ms. M.:
Because of the injustice.
Prof.:
No. Not because of the injustice. In other words, what you’re doing now
is struggling with the application of the promissory estoppel rule and the
three elements? We’ll come back to that. Ms. T.?
Later in the dialogue, the professor returns to the question, telling the student,
“Now, here’s how you answer this question, all right?” She proceeds to outline the
doctrine:
Transcript 6.22 [3/26/8]
Prof.:
What is the rule of promissory estoppel? The rule of promissory estoppel is
that if a promise is made, which is A. intended to induce reliance, and B. if
the promisee relies on that promise to his or her detriment, then, C. the
promise may be enforced to the extent justice requires. Where am I getting
this rule? It’s articulated in