0195182863.pdf

On Becoming a Legal Person 123

judgment and responsibility. In the lawyers’ case, that responsibility involves for-
mulating the best possible argument for their clients, seeing the issue from all angles,
and bracketing emotional responses that might limit their ability to analyze the
issue clearly. Analysis requires running the factual situation through metalinguistic
filters, mentally standing on each side of each argument and imagining the other
side’s response, and asking oneself a set of nested questions derived from the fil-
ters of doctrine and procedure (organized as discursive strategy). We can see the
double edge here. There is a power to bracketing off emotion when it helps to obtain
for a medical patient or legal client the full benefit of dispassionate professional
judgment, but there is a disempowerment in permitting only part of the patient’s
or client’s full experience to be considered.
As the semester proceeds, classroom discourse insistently channels ethical
questions and emotional responses into doctrinal channels:

Transcript 6.21 [3/26/6]

Prof.: That’s good. All right. Why did the borrowers win? What is the court’s

explanation for why the borrowers should be permitted to recover on

this counter claim?

Ms. M.: Because of the injustice.

Prof.: No. Not because of the injustice. In other words, what you’re doing now

is struggling with the application of the promissory estoppel rule and the

three elements? We’ll come back to that. Ms. T.?

Later in the dialogue, the professor returns to the question, telling the student,
“Now, here’s how you answer this question, all right?” She proceeds to outline the

doctrine:

Transcript 6.22 [3/26/8]

Prof.: What is the rule of promissory estoppel? The rule of promissory estoppel is

that if a promise is made, which is A. intended to induce reliance, and B. if

the promisee relies on that promise to his or her detriment, then, C. the

promise may be enforced to the extent justice requires. Where am I getting

this rule? It’s articulated in Allegheny College. It’s articulated in East

Providence v. Geremia. It is articulated in both of the cases that we read for

tonight. And it is also articulated in section 90 of the Second Restatement,

which is on page 270 of the text. So, three elements of the rule. What that

means is, that when you want to make an argument for promissory

estoppel, you’re going to take the elements of the rule, promise intended to

induce reliance, detrimental reliance has occurred, justice required the

enforcement of the promise, and you are going to apply the elements of the

rule to the facts of the case: first, on behalf of the promisee and then you’re

going to have to anticipate what the promisor would say in response.

Okay? So that’s you, Ms. M. What you want to do is now say, “Was there a

promise made intended to induce reliance?” What was the promise?

In the contrast between the professor’s first answer (“No, not because of the injus-
tice”) and her second (which overtly includes “justice” as a part of the legal pic-
ture here), we have a powerful example of the crucial role of screening texts and