The Language of Law School This page intentionally left blank

The Legal Imagination
 and
 When Words Lose Their Mean-
ing
. In first-year Contracts classes, the Uniform Commercial Code is a common subject
for this kind of discussion, although professors vary considerably in the degree to which
they focus on the UCC. More advanced skills needed for reading the genre of statutes or
uniform laws (such as parsing legislative history) are generally reserved for upper-level
courses.
44. J. L. Austin, 
How to Do Things with Words
. See Yovel, “Language beyond Law”
and “What Is Contract Law ‘About’?” for important discussions of performativity in legal
language.
45. This discussion of legal texts and readings relies on the linguistic data collected
for this study and presents structural features of the discursive logic of case law that are
commonly highlighted by professors. Thus, the organization of this part of the chapter
reflects the categories that emerge from linguistic analysis of the data, rather than the ca-
nonical order of the dissection of cases as it occurs in classes. As we will see, that ordering
is somewhat different, typically beginning with a recitation of the facts or procedural his-
tory, and then moving on to the legal issue and holding.
46. Black, 
Law Dictionary
, 731.
47. Note that this is a form of “intertexuality.”
48. In Silverstein’s terms, the procedural history provides one kind of “interactional
text” for the reading of cases. Silverstein “Metapragmatic Discourse,” 36. Note that pro-
cedural history is only one variety of the interactional texts that can be found in legal opin-
ions. Insiders can read certain appellate opinions as expressions of power struggles among
competing judges or justices, as the products of negotiations among judges and clerks (who
write substantial portions of many decisions), as attempts to mediate political or social
struggles of various sorts, and so forth.
49. On the concept of a metalinguistic filter that interprets social change and sub-
tly impacts people’s worldviews, see Mertz, “No Burden to Carry” and “Sociolinguistic
Creativity.”
50. Levi, 
Introduction
, 3–4.
Notes to Pages 60–63
247

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51. J. B. White, 
When Words Lose Their Meaning
, 268.
52. See Mertz, “Consensus and Dissent.”
53. Levi, 
Introduction
, 18.
54. Id.
55. See, e.g., Matoesian, 
Law and the Language of Identity
; Pomerantz, “Attributions
of Responsibility.”
56. Appellate courts generally refuse to second-guess trial courts on factual issues,
in part out of deference to the firsthand opportunity that the trier of fact (the jury or, in a
bench trial, the judge) had to observe and assess witnesses in person (an aspect of evidence
known as “demeanor evidence”). Only in exceptional instances, where a trial court has
made a “clearly erroneous” decision, will an appellate court intervene over issues of fact;
these kinds of cases are not typically included in casebooks because they don’t help in elu-
cidating doctrine.
57. Again, note the use of seemingly little words like “wait” in this transcript to mark
pedagogical transitions; here it signals an interruptive repair in which the professor seeks
clarification. See also Transcript 4.18, in which the professor uses “Wait now” for simi-
lar purposes; later in the transcript she uses “Well, now wait a second” to interrupt the
student’s narrative and initiate an instructional repair in which she explains how the le-
gally structured narrative should be ordered, and then gives the student an opportunity
to try again.
58. Here we see the use of “okay” and “all right” as emphatic markers serving mul-
tiple discursive purposes; Chapter 7 discusses this phenomenon in depth.
59. This is obviously not true in the Civil Procedure classes taught to first-year stu-
dents, and it is likely that there is also variation regarding discussions of procedure in some
other classes, such as Legal Writing.
60. Note that, as Levi’s analysis demonstrates, the courts themselves may not be
able to clearly articulate the principle behind their decisions to view some analogies as
apt and others not. Rather, there may be an amorphous, culturally based sense that one
set of events ought to be remediated by law and others not—and some decisions may
lack even that sense of coherence. Over time, a doctrinal principle gains coherence as
courts and commentators perceive a guiding principle behind the evolving decision. The
genius of this is that shared cultural understandings can slowly enter the law as prin-
ciples through a gradual process wherein courts express a general, emergent social con-
sensus (much in the way Robert Burns has argued juries do; see Burns,