The Language of Law School This page intentionally left blank

Part II
1. Levi, 
Introduction
, 3–4.
2. Williams, 
Alchemy
, 164.
Chapter 4
1. Turow, 
One L
, 47–49.
2. Angel, “What It’s Like,” 809–813.
3. In similar fashion, one might begin the study of a particular religious ritual by
examining a canonical version from which specific performances of the ritual in different
times and places is likely to vary. Of course, this gives rise to a number of interesting de-
bates and issues; for example, are individual performances simply renditions or “versions”
of the canonical form, or is the relationship more complex? Barbara Hernnstein Smith has
argued compellingly against an approach that deems many renditions of folk tales to be
mere versions of some underlying, canonical story (the “Cinderella” story, perhaps).
Hernnstein Smith, “Narrative Versions.”
Another set of concerns: Does it matter that the priest or shaman works from a rich
and complex symbolic understanding of what is happening if that model is not shared by
the bulk of the people participating in the ritual? What is the relationship between expert
knowledge and folk knowledge in such matters? One tradition in anthropological studies
of religion has focused on expert knowledge, as if religious experts were the key source of
cultural understandings of religious practices. Indeed, anthropological work focusing on
expert religious understandings at times relied on single members of a society to translate
the “religious system” of an entire group. See, e.g., Reichel-Dolmatoff, 
Amazonian Cos-
mos
. This can be problematic for those who approach the religious system as something
that is shared and social and differentially understood. Thus, some anthropologists have
insisted on understanding the way religion is translated by the people on the street, exam-
ining the refraction of religious lore and canon through the practices of these people. See,
e.g., Jean Comaroff, 
Body of Power
.
In this case, we deal with a genre (Socratic method law school teaching) as it is per-
formed in practice, and so we are observing an intersection of the expert knowledge of the
“high priest” (in this case, forgive the metaphor, the professor) and the lay understanding
of the congregation (the students) as they come together in a jointly produced performance.
Although some of the classrooms in this study approximate the standard Socratic style,
even in these classes we find some variation from the canonical approach (hence my use
of the label “modified Socratic” to describe them). One of the classes in the original pilot
study for this project did come very close to the prototypical Socratic style, and so I use
transcripts from that classroom to illustrate the prototype in action. (Because we did not
tape an entire semester for the pilot classrooms, we cannot determine to what degree even
the teaching in this class might have begun to diverge from the standard image over time,
just as we cannot really be sure that any actual class ever completely conformed to the leg-
end, as we’ll see in Chapter 7.)
4. Bauman and Briggs, “Poetics and Performance,” 67.
5. Id., 68.
Notes to Pages 41–45
241

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6. Id., 72–74.
7. Or, in some cases, a text-artifact can be the physical rendition of the text in speech
and/or action.
8. Silverstein, “Secret Lives of Texts,” 81 and passim; see also Silverstein and Urban,
“Natural History.” Thus, if I read you a story about the history of a clan, or the legal profes-
sion, we could distinguish (1) a text-artifact (the written story); (2) a number of possible
denotational texts, centered on the content of the story (the meaning each teller and listener
takes from the story; think, perhaps, of asking multiple listeners to retell the story after I’ve
read it, and then analyzing how the various “Rorschachs” we generate from this exercise do
and don’t overlap); and (3) a number of possible “interactional” texts, centered on what I
am doing when I read the story (e.g., initiating you into the clan or the legal profession,
warning you about the dangers of the past so that you will behave differently now). Note,
then, that as in so many instances of linguistically generated meaning, there is a metalevel
structuring that forms the backbone of how we create and understand “texts.”
I have chosen not to use the more technical vocabulary throughout this volume but,
as noted, have generally indicated the distinction between text-artifact and other kinds of
text by speaking of the written texts found in legal opinions and casebooks when talking
about legal text-artifacts. It is also interesting to note that, again on a more technical level,
the method used here does not allow me to generate an account of group interactions such
as classes in terms of the individual participants’ denotational or interactional texts. (In-
deed, it is difficult to imagine doing this in any fine-grained, ongoing way, for any sub-
stantial group of people.) The interviews whose results are reported in Chapter 7 do give
us some sense of possible points of differentiation along these dimensions. But my pri-
mary emphasis here is on the institutional level and the ways patterned institutional dis-
course styles reregiment participants’ orientations to the reading of text-artifacts more
superficially, and, further, to the entextualization, recontextualization, and interpretation
of conflict stories or texts and other legally relevant social narratives.
9. The authority of previously written legal cases also depends on the status of the
court from which the opinion was issued. In the federal court system, for example, an
opinion of the U.S. Supreme Court would have more authority as precedent than an opin-
ion of one of the intermediate federal appellate courts (e.g., the First or Second, etc., Cir-
cuit Courts of Appeal).
10. When I speak of the precedential “text,” I want to point to the conflation in na-
tive ideology of what Silverstein would call text-artifact with the texts that are in play in
the process of making precedents. This conflation is encouraged by the fact that there is
frequently a heavy focus on a precise word or phrase from the original text-artifact, so that
a linguistic formula such as “inherently dangerous” is literally repeated in the new text-
artifact. This reification of and focus on “surface segmental” aspects of the language, where
written tokens of the type are taken as iconic with (indeed identical with, unmediated by
text) each other, is an instance of the ideological predisposition for reference discussed in
Chapter 2, note 34.
11. A more precise articulation of the way the legal “classification changes as the clas-
sification is made,” as Levi puts it, is more readily achieved by using the analytic frame-
work provided by linguistic anthropology than by using the “indigenous” legal theoretic
approach, even of the more sophisticated variety. As noted previously, legal scholars and
practitioners seem to have difficulty holding onto both aspects of the process at once, thus
sliding alternatively into naïve referential reification and skeptical nihilism. See Mertz and
Weissbourd, “Rule-Centrism versus Legal Creativity”; Winter, “A Clearing in the Forest,”
11. Nor does legal theory provide a clear framework for sorting out how legal language
operates in the process of entextualization and recontextualization.
242
Notes to Pages 45–46

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12. Bauman and Briggs, “Poetics and Performance,” 76–78. This is one example of
how the “metapragmatic” level plays an important role in structuring communication.
13. As Silverstein notes, reading a written text is “a socioculturally contextualized
practice of entextualization, which demands its own ethnographic account.” Silverstein,
“Secret Life of Texts,” 81. To be interpreted by readers, the written text-artifact
stimulates an entextualization in an appropriate context; it is the mediating instru-
mentality of a communicative process for its perceiver, for example, a reader of an
alphanumeric printed page such as the one before you. To confuse the mediating
artifact and its mode of production (“inscription”) for a text and the sociosemiotic
processes that produce it perpetuates a particular fetishized substitution. (Silverstein
and Urban, “Natural History,” 2 n. 1)
One reason this confusion is not useful is that it obscures the necessary processes of
contextualization that occur every time anyone encounters and seeks to make sense of a
written text. Instead, this conflation encourages a naïve “referentialist” ideology that views
writings as self-contained, as self-interpreting apart from human agency. Any resulting
analysis will lack precision in tracing the role of written texts in semiotic mediation—in
creating relationships among the human beings who are communicating with one another
by means of those writings. It will similarly elide distinctions among the varying kinds of
entextualizations that can emerge from the same written text, thereby losing the analyti-
cal capacity for sorting out how, when, where, and why these variations occur.
14. In other words, what we would call “pragmatic” aspects of meaning. Note that
performance is only one modality through which written texts can be entextualized and
contextualized; they can obviously be rendered or interpreted in other formats as well. (And
I use “contextualized” here as a shorthand way of communicating the more involved pro-
cess through which “chunks” of discourse are created as texts [“entextualization”], removed
from one context [“decontextualized”] and used in another context [“recontextualized”].)
15. And of course, the teacher will not have the original written text-artifact in front
of him or her, nor will the students be referring to it; they will likely have a printed rendi-
tion of this classic written text (or an excerpt thereof) in their textbooks. In this narrow
technical sense, almost no one is reading the “identical” written text, unless they have
borrowed the same book from another interpreter.
16. By “index,” we mean that it carries significance because it points to its meaning
in context. See Peirce,