124 Similarity
doctrines in legal reading. It is not that the student shouldn’t include some calcu-
lation regarding injustice in solving this problem. That calculation is in fact ap-
propriate here because the legal doctrine calls for it. But a reply in which “injustice”
appears unmediated by doctrinal screens is rejected; the solution lies in filtering
the issue of justice through layers of doctrinally delineated tests. Note that the pro-
fessor also goes on to make explicit the role of textual genealogy in creating these
legal filters. It is also worth observing that the professor again here urges on the
student a particular form of thinking about problems by advocating that she ask
herself a question from doctrinal categories and answer it through application of
facts. Thus, there is (at least) a double mediation here: first, running the facts
through layers of doctrinal filtering, checking for the relevant issues (which may
or may not include justice); second, performing that doctrinal check through a
question-answer pair-part form. Unmediated ethical analysis of injustice is not the
point, and indeed flies in the face of doctrinal analysis.
This doctrinal filtering is one of several ways in which students are tacitly en-
couraged to adopt a new, more distanced attitude toward morality and emotion.
Another pedagogical technique that furthers this shift is an insistence on the pri-
macy of ongoing argument or dialogue (or, at times, just ongoing pair-part re-
sponses). If students express discomfort or emotion, a common professorial
response is to urge them to channel their feelings into “arguments” (generally, of
course, framed in terms of doctrinal categories). Again we find some students strug-
gling as they are pushed to engage in this discourse:
Transcript 6.23 [5/8/8]Student: The contract, the original contract itself had a provision in it for prices
that change due to an advance in case of the rise in the wages, which
actually happened causing the forward contract to be much more
expensive. So, if we’re looking at expectation damages, then the point
that- I mean, in his contract that he would have, his original contract
that the coke would have been subject to rise as well, would it not?
Prof.: I don’t know. What’s the relevance of that to--
Student: --well--
Prof.: --how we solve the problem?
Student: (.) [rising intonation] It just bothers me. I-
Class: [[laughter]]
Prof.: What bothers you?
Student: [smiles, silent, looks down]
Prof.: What bothers you, I take it, is the parties thought about the problem of
labor and increased price in labor. And you’re suggesting this is
something they recognized. Now, do you want to go from there to say,
“If they recognized that (.) there was a problem with the cost of labor (.)
if there was going to be a stunningly disturbed market, they should have
said something about it,” is that what you want to say? If that’s what
you want to say, where does that leave you?
Student: [again, silence, looks down]