The Language of Law School This page intentionally left blank

Transcript 4.3 [PS/1]
Prof.:
[ . . . ]
 on March 1. (.) B promises to pay Seller ten thousand dollars for
Whiteacre March 1. March 1 comes and goes (.) B now sues Seller for
breach (.) of Seller’s promise to deliver the title to Whiteacre on March 1.
Seller defends saying, “It is true that I did not deliver title on March 1 but
B did not tender ten thousand dollars on March 1.” That is a good
defense. Would you explain how the law goes about saying that it is a
good defense (.) Ms. A.?
Ms. A.:
Well the- it’s a concurrent condition that in order for the Seller to tender
title Buyer must pay ten thousand dollars and that the Buyer pay ten
thousand // dollars //
Prof.:
// Well // all right now you y- I just wanted to talk about this
one (thought) all right for the moment (.) it’s correct, what you said, but
let’s just talk about this- this is: B is entitled- now I asked you in this
assignment to describe e-exactly how- what the condition is that will
make this defense good.
[- negative uptake]
Ms. A.:
That Seller could say- he could have transferred title to a Buyer (for) ten
thousand dollars.
Prof.:
Well now there are two parts (). It doesn’t make any sense to talk about one
half of it without the other half; what are the two parts?
[- negative uptake]
Ms. A.:
Seller would have to tender title if Buyer tendered the ten
// thousan- //
Prof.:
// Well // n-name the two parts, would you, because people have a lot of
trouble with this.
[- negative uptake]
Ms. A.:
(.03 silence)
Prof.:
When you describe a condition what two things do you have to talk about?
[- negative uptake]
Ms. A.:
Oh (that one) the duty it’s conditioned on and the event constituting the
condition.
Prof.:
Okay. The duty and an event. And the event is the condition. You can de-
scribe that event without talking about the duty but there’s no sense in
doing it because uh- it’s going to sound () (it’s not going to mean any-
thing). All right. Now the duty in this case that we’re talking about is (.)

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Similarity
in this case (.)
[+ positive uptake]
Ms. A.:
Um- the Buyer’s duty to tender the ten // thousand- //
Prof.:
// no //
[- negative uptake]
Although there was one instance of uptake in this excerpt, the exchange is over-
whelmingly characterized by nonuptake, and thus resembles more closely discourse
in the lower- rather than higher-status classrooms of the elementary school stud-
ies. And this particular exchange is taken from a Socratic dialogue with a virtuoso
student who was able to sustain the dialogue with only minimal interruption for
the entire class hour. Although there was some variation among the professors in
this study, professors frequently interrupted students, and they generally main-
tained tight control of the discourse. Indeed, professors who differed widely in
philosophy and style of teaching still controlled classroom discourse to the point
that students were almost never permitted a verbal exchange among themselves
that was not mediated by the professor. (For example, rather than permitting one
student to respond to another directly, professors would interject comments such
as “Mr. X., what is your response to Ms. Y.?”)
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 Use of uptake structure to focus
students’ attention on particular aspects of the text varied by law school classroom
in this study but was found in most of the classes.
If we stopped our analysis at this point, we might conclude that the uptake
structure of classic Socratic law school classroom exchanges resembled that of low-
ranked reading classes rather than high-ranked ones. However, a more detailed look
at the pragmatic structure reveals some key differences. Although these law school
exchanges are largely characterized by nonuptake, there is uptake, and it does not
come at random points. In Transcript 4.3 above, uptake occurs when the student
produces a pair of technical terms. Nonuptake occurs when the student attempts
to produce a narrative that tells us a story about two people (albeit Buyer and Seller).
We saw a similar pattern in the exchange centered on 
Sullivan v. O’Connor
, in which
the professor interrupted an attempt to give us the story of the woman and the
surgeon. If we examine that first exchange (Transcript 4.2) from the point of view
of uptake structure, we see a very similar pattern, with negative uptake through-
out until the student produces a procedural term (“appealed”), at which point the
professor responds with positive uptake. A pattern with only one uptake for every
four exchanges between professor and student appears in both examples, in each
case highlighting and picking up on students’ appropriate invocation of legal cat-
egories. In this subtle way, stories of human conflict, complete with their social
contexts and moral overtones, are inexorably supplanted by new readings focused
on layers of textual and legal authority.
Ideologies of Text in Socratic Legal Pedagogy
What model of text is being conveyed by this tightly controlled turn-taking? In both
of the examples above, uptake, pointing to (or indexing) a successful response,
occurs when students produce technical terms. And these are not just any techni-

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Learning to Read Like a Lawyer
57
cal terms. In each of the examples, the professor is using the structure of Socratic
questioning to highlight pragmatic aspects of legal texts, in particular, the ways that
the texts become authoritative through the invocation of legal contexts. The text
itself is highlighted here, rather than the story (reversing the common understand-
ing of texts as mere vehicles for telling the story). Read in this light, these legal cases
could be viewed as telling quite distinctly legal kinds of stories: tales of prior legal
decisions at various levels (which are thus metalevel stories that reflect on the
storytelling itself).
In Transcript 4.2, the professor sought a procedural term, “appealed,” which
drew attention to the history of the case as it was presented in the opinion the stu-
dents read. Before a case reaches the state (or U.S.) supreme court level, it typi-
cally has moved through several levels, advancing from the trial court through an
intermediate appellate court to the ultimate decision by a supreme court, and each
move involves the invocation of various legal procedures.
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 In more complex cases,