The Language of Law School This page intentionally left blank

part be responsive to the subject matter of Contracts classes. These are the char-
acterizations that focus on people as economic maximizers—or that empha-
size their occupational or other economic roles. As I mentioned earlier, the
successful exportation of economic models across doctrinal areas has meant
that these kinds of characterizations are unlikely to be limited to Contracts classes
or to other classes dealing with more obviously economic domains (e.g., Corpora-
tions or other business law classes). Perhaps, given the analysis in the previous sec-
tion, this is not surprising: a general legal understanding of people as strategic, as
maximizing their position in a legal argument, has some obvious affinities with a
view of people as economic maximizers.
A great deal of the doctrinal framework in the field of contracts centers on the
issue of economic exchange, on bargains and business transactions. Thus, charac-
ters in the conflict stories told in Contracts classes are frequently identified in terms
of their occupations or economic positions. In the following excerpt, the profes-
sor draws on a common stock figure in contracts tales: the “standard average”
farmer who must decide about whether to breach a contract based on various stra-
tegic considerations:
Transcript 6.6 [8/10/18]
Prof.:
All right. If you think about what we’re worried about is, on the one
hand, the farmer is going to go out there as soon as the price rises, all
right, make more money off his wheat, all right, thinking that he’ll be
hedged, all right, he’s trying to make a profit out of his wheat, okay.
And I suppose in that particular case, what might the farmer be hoping,
assuming that- and this is part, my problem when I start talking like
this. I have a problem with it because, of course, I’m assuming the
farmer- that the farmer will know the law, all right, but in fact, you

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114
Similarity
don’t need to know the law. What might the farmer be hoping would
happen? In fact, the law might favor the farmer on this one. Notice, why
is it the farmer doesn’t perform? One reason is, the market’s gone up,
but you say, “But wait a minute, what good does it do? He still has to
pay the damages.” What might the farmer be hoping? Yeah?
Student:
The buyer’ll find cover.
Prof.:
To find a substitute and what else?
This excerpt includes a realist commentary, pointing out that the average citizen
may not know the law. But note also that the farmer is not situated in terms of
time or place. We are working here with a stereotypic, abstract individual whose
main characteristics are a set of economic considerations given by his occupational
situation and the market. Even the differences between small farmers and large
agricultural enterprises, regional and cultural differences among farmers, the in-
fluence of long-term relational (or other kinds of) ties within communities and
between participants in markets are not salient here.
29
 However, professors do make
sure that students pay careful attention to the stereotypical effects of occupational
identity and economic position (with their implications for legal strategy) on liti-
gants’ probable thoughts and expectations (as in the excerpt above).
Students quickly pick up on the importance of fixing the characters in con-
tracts stories in terms of their general economic and occupational identities:
examples: students stating the facts of the case,
introducing the characters
Transcript 6.7 [2/12/11]
Student:
All right, the plaintiff, B., is the landowner and the defendant, K., is the
realtor.
Transcript 6.8 [4/32/1]
Student:
The plaintiff is the builder’s () carpenter, and in September the
defendants, who I guess are like businessmen