The Language of Law School This page intentionally left blank

The Landscape of Argument and Discourse Frames
We have already seen many examples of the most ubiquitous form of contextualized
identity found in these classrooms: professors invite students to play the roles of
legal professionals, of lawyers and judges, and to make legally relevant arguments.
Also, at times, arguments that would actually be made by lawyers are put into the
mouths of parties or litigants. The most salient aspect of identity in these scenarios,

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130
Similarity
as we’ve noted, is students’ location in a legal landscape, situated in a geography of
strategies and argument:
Transcript 6.27 [4/23/16]
Prof.:
All right, now the strangest part of all, I guess, uh Mr. H., let’s say you
know damn well that this potential infliction suit is a piece of garbage, all
right. But, you get a settlement out of me anyway. 
[ . . . ]
Transcript 6.28 [1/3/9]
Prof.:
Well, if I say I intend to give you five thousand dollars if you climb to the
top of the Sears Tower, is that an offer?
Transcript 6.29 [1/3/25]
Prof.:
So, in other words, if I give you five thousand dollars this year for your
tuition, (is) part tuition, and five thousand dollars next year, () your
tuition (.) All right? And, depending on how you do in school for the next
two or three years, five thousand dollars. I’m wondering whether or not if
I renege you can sue me for breach of contract.
Notice that there is a sense of spatial and relational coordinates in these pas-
sages, but again of an oddly abstract-contextual variety. In the first passage, the
student is described as getting a settlement “out of” the professor; in the second we
imagine the student catapulted to the top of a very tall building in return for five
thousand dollars; in the third we picture the student doggedly pursuing college studies
at a “standard average” college. In all three passages, use of the pronouns “I” and
“you,” as well as use of the present tense, foreground a speech situation in which the
operative locutions are crucially defined by legal (and linguistic) concerns. Pro-
fessors place students in the shoes of people occupying legal positions, located in
landscapes whose key referents are legal requirements. The primary relevant con-
text becomes that provided by legal argument and strategy. Places and related oc-
cupational characteristics become relevant spatial referents only through the filters
of legal jurisdiction and doctrine. Each time a professor places a student in this land-
scape, the student must learn to focus on the details needed to shape a legal argu-
ment: to convert social and spatial coordinates into legal categories. People and
problems are located in abstract individuals operating against the odd acontextual
context of a legal geography, two contracting parties interacting with each other—
even speaking in the first-person singular—against the backdrop of legal rights,
jurisdictions, and doctrines.
Summary: Learning to Think—and Talk—Like a Lawyer
As we will see in the next chapter, there is some striking variation among the pro-
fessors in this study in terms of discursive format, as well as in terms of their own
political and pedagogical philosophies regarding the proper role of law. It is there-
fore all the more intriguing to find strong continuities in metapragmatic structur-
ing beneath these apparent differences. These continuities express a more subtle

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On Becoming a Legal Person
131
ideology about language, one that is part of the larger system to which law stu-
dents are being socialized, of the written texts they are being trained to read, and
of the way of speaking-and-thinking that their professors urge on them.
This language ideology stresses a transparency of metapragmatic form to so-
cial result. This is the case on several levels. Let us first consider the effect of role-
play, whether between professor and student or internally within professor turns
(when professors report the speech of various protagonists in dialogue with each
other, playing each role in turn). The metapragmatic form of at times coercive
dialogue is ideologically represented as transparent to the social result of a trans-
formed social identity (learning to think like a lawyer, conveyed through class-
room dialogue, being a crucial step on the way to becoming a lawyer). However,
metapragmatic form is also understood as transparent to the social results of cases
that are won by speakers able to hold up their end of similar dialogues—those who
are able to take on and speak roles fluidly.
“Taking a position” as an interlocutor in a dialogue is a necessary part of gain-
ing power for legal actors. This taking of a position is most vividly enacted through
role-playing, and it doesn’t matter which role is played as long as some role is played.
Professors take roles themselves, speaking for various characters in the cases and
even in legal philosophical texts, as they unfold a dialogic drama in classroom
speech. At times, professors also push students to take these roles themselves and
to play them with certainty. Lack of assurance, breakthroughs of genuine affect,
indexing through tone and gesture a failure to play the role, and silence are gaps in
the dialogue—or worse, refusals to acquiesce in the ongoing metapragmatic struc-
turing of discourse.
That structuring is a key ideological message of law school socialization. It
prepares students for a legal world that constantly effects a translation of people
into their roles (plaintiff, defendant) and actions into their legal categories (tort,
breach of contract). This translation occurs in a system in which either of two
opposing results is initially possible (guilty, not guilty) and in which effectual and
“correct” metapragmatic regimentation (in courts, in legal documents, in lawyers’
talk) yields powerful social results. A key presupposition of the legitimacy of those
results is the untying of the drama as legally translated from its usual social moor-
ings, the putative objectivity of the story once told in the apparently dispassionate
language of the law. As the people in the cases become parties (i.e., strategic actors
on either side of a legal argument), they are stripped of social position and specific
context, located in a geography of legal discourse and authority. Their gender, race,
class, occupational, and other identities become secondary to their ability to argue
that they have met various aspects of legal tests. These contextual factors do some-
times become salient to the discussions, but only as ammunition in just this way—
as fodder for metalinguistic legal filtering.
Thus, not only through the immediate modeling of role-play but in other
ways as well, we can say that the linguistic ideology of legal pedagogy represents
metalinguistic form as transparent at a third, even deeper level, for the meta-
pragmatic structure conveyed in law school classrooms also mirrors a broader
legal epistemology. This legal epistemology undergirds the U.S. legal system,
which derives its legitimacy in part from an act of translation of social events and

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132
Similarity
actors into their corresponding legal categories and roles. These categories and roles,
like the legal texts re-entextualized in new legal opinions, are always part of an op-
positional discourse in which one of two opposing parties, and interpretations, will
“win.” The linguistic ideology conveyed through this metapragmatic structure
pushes social context and emotion to the margins, except when they have been
abstracted and processed through legal categories (as, for example, with the con-
cept of “provocation” in criminal law).
37
 Otherwise, emotion and context enter
only through the backdoor, as when the professor warns the students that the “eq-
uities” of the situation can skew legal results. (An example of this would be if a
legal requirement has not been strictly met, but the judge or jury finds for the party
anyway because of sympathetic feelings for an individual plaintiff.) Role-playing
in the classroom attempts to bring students to the level of actual people,
38
 but the
specific roles that are played omit many of the social particulars that shape not only
normal social interactions themselves, but also moral assessments of those inter-
actions. The bracketing of social context, along with the translation of people and
events into legal categories and roles, is deemed to be a crucial way in which law
achieves objectivity and lawyers achieve dispassionate professional competence.
And, as we have seen, the means to this objectivity is through language: through
insistent dialogic exchange and questioning, taking each side, trying on different
positions and roles.
This removed approach to the person and to human conflict feeds into an
ideology of universal translatability in which legal language serves as a discursive
medium of exchange across all areas and levels of society.
39
 In converting virtually
every possible event or conflict into a shared rhetoric, legal language generates an
appearance of neutrality that belies its often deeply skewed institutional workings.
The classroom experience initiates law students into this new language using an
approach that encourages them to push aside the emotional and socially embed-
ded particulars of the conflict. Instead, law professors direct their students’ atten-
tion to the oddly abstract conceptions of people and contexts provided by layered
readings of legal texts. The people in these landscapes, as well as the landscapes
themselves, are configured around points of legal argumentation, around strate-
gically structured dialogue. Students begin to learn a process of translation that
they will eventually take for granted. This legal translation is a key ground from
which they will operate when performing their role as lawyers; it embodies an epis-
temology that is the background grammar for all legal discussion.
40
 When students
speak this language, they operate in a world in which important aspects of social
context and identity have become invisible. This is the phenomenon I refer to as
“cultural invisibility.” At the same time, other aspects of dominant culture and
assumptions become highly visible: the logic of capitalist exchange, for example,
in Contracts classes, and the focus on an abstract, strategizing individual as the
central figure in legal narratives. Thus, a cultural dominance for some aspects of
context accompanies a cultural invisibility for others. And so when professors trans-
late human conflict into this legal language, they drain away much of the sociocul-
tural specificity, along with many emotional and moral dimensions. In doing so,
they subtly erase a great deal of the context and detail on which most laypeople
would rely in forming ethical judgments. At the same time, they strongly insist that

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On Becoming a Legal Person
133
students focus on details pertinent to doctrinal, statutory, and procedural require-
ments delineated by layers of legal texts and legal authorities. And they model a
question-answer form of dialogue as the canonical means to legally acceptable
conclusions.
There is an interesting combination of abstraction and specificity involved in
this process. To connect each new conflict story with legal precedent, students must
focus on detailed aspects of the stories, if they are to categorize the new facts as
instances of general, legally specified types. For example, a student might argue that
a particular act or event in this new conflict story constitutes a breach of contract
because it is arguably the “same” as an action or an event in a previous case where
the courts found a breach. Yet, this apparent concern for specificity wrenches de-
tail from its particular social and (nonlegal) narrative contexts in ways that can
obscure or erase the features of the story to which laypeople look when reaching
moral judgments. One could argue that there is an attraction to the apparent neu-
trality of this kind of categorization; it conveys the idea that no matter who you
are, you will be dealt with similarly. By running the facts of the conflict or case
through the filter of legally relevant categories (guided by and invoking forms of
legal authority derived from legal texts), any individual may be able to escape the
prejudices and inequities of socially embedded moral judgments. Indeed, we can
point to cases where this has been the case: in which appeal to more formal and
abstract legal categories and procedures has permitted socially stigmatized victims
to be heard. However, there is a double-edged character to this legal mediation,
one that social theorists have found in the commodity form more generally.
For example, building from the Frankfurt School, Moishe Postone describes
a complex “double character” to capital, labor, and time in capitalist societies. In