100 Similarity
On the one hand, professors attribute particular qualities to these people, thus
“characterizing” them in quite specific ways. At the same time, these people actu-
ally become “characters” in narrated stories, legal personae who speak to us through
reported speech. In this process, they are stripped of some of the characteristics
that they themselves might deem important to their personalities and selves and
are objectified in a process that highlights features important to their construction
as actors in a legal drama, as characters in legal stories.
We can identify from the study data at least three kinds of influence that the
norms surrounding legal readings exert on the conceptualization of legal personae.
First, a core trope organizing legal readings is that of argument, particularly where
the case law genre is concerned. When they write legal texts or opinions, judges are
deciding which of two competing sides and arguments has won, and in doing so are
presenting arguments of their own. When professors discuss the people who appear
in legal narratives, they frequently present them in terms of the arguments they must
make, could make, are making, and so on, whether the people are parties involved in
the case, attorneys, or judges. Notice that in the process, legal narratives convert people
into speaking subjects whose primary identity is defined by their location in an ar-
gument (plaintiff, defendant, appellee, appellant, party, plaintiff’s attorney, judge,
public defender, prosecutor, drafter, etc.). With this focus comes a concomitant, often
tacit characterization of people as strategists: as organized around a strategic calcu-
lus regarding which arguments or actions will put them in the best position to win.
Thus, professors will often invite students to speculate about what a particular per-
son must have been thinking when she drafted the contract using certain words, or
when he behaved in a particular way. They also initiate the students themselves into
these identities, inviting them to take the positions of different parties or to make
strategic arguments. Through role-play and hypotheticals, students themselves be-
come people defined primarily by their ability to argue and strategize.
These two influences of a distinctive legal reading on conceptualizations of
the person would hold true regardless of which kind of subject matter or doctrine
was under discussion. However, there is a third kind of influence that is likely to
take different forms depending on areas of law (i.e., depending on whether we are
dealing with contracts, criminal law, torts, etc.): the definition of people in terms
of doctrinal requirements. In Contracts class, we are focused on economic trans-
actions that lie at the heart of capitalist exchange, and thus, arguably, at a very in-
teresting nexus of law and social structure. That the people who emerge from the
texts of contracts cases are characterized as economic maximizers, or in terms of
their occupational status or worldly belongings, is hardly surprising. On the one
hand, the language of economics has gradually infiltrated many other areas of law,
moving beyond cases dealing with strictly economic transactions to use an “eco-
nomic maximizer” calculus when analyzing family relationships and other inter-
actions formerly thought to center on noneconomic principles. This move has,
obviously, been the subject of a great deal of debate. Anthropologists might argue
that it is not at all surprising; just as a capitalist calculus has managed to work its
way increasingly into domains once considered relatively more autonomous from
the economic system, so an economic logic is (in ever more overt ways) coloniz-
ing areas of law once deemed independent.