- Matoesian, Law and the Language of Identity, 107.
- Here we also see an example of the quick distillation of complex positioning into
an easily recontextualized label; this process is ubiquitous in case analysis, and indeed is
arguably one of the key semiotic processes through which previous texts are put into ac-
tion in quick-moving legal discourse, especially as precedents. Of course, in this process,
much is simplified, elided, or lost (with complex aspects of social context as a particularly
likely casualty). - This would likely be different in classes where professors teach the “relational
contracts” model, using more sociologically oriented casebooks such as Ian Macneil’s
original work in the area, or the more recent Wisconsin Contracts materials. See Macneil,
Contracts; Macaulay et al., Contracts. Relational contract approaches do generalize
across contexts when developing categories for classifying the relationships with
which contract law must deal. In this sense, they move away from socially specific analy-
sis. However, relational contract theory moves decisively into social context in its at-
tention to the relationships that surround formal contracts and, in this sense, takes an
important step in the direction of incorporating contextual considerations into legal
analysis. - There are a few interesting exceptions, for example, cases involving family
members. - In a sense, this may be even more alienating for students concerned with prob-
lems of social inequality, because they will have to restrain strong feelings to perform this
act of stepping back. Because the focus of this study was on Contracts classes, it is beyond
my scope to discuss further this interesting question: How do students respond to courses
in which the very subject matter that law turns into doctrine is social identity? - On relational contract from a pedagogical perspective, see Macneil, Contracts;
Macaulay et al., Contracts. - Ochs, introduction, 5; see also Schieffelin and Ochs, Language Socialization.
- Schieffelin, The Give and Take of Everyday Life, 75–80.
- Initiated repairs of various kinds have been observed in numerous other lin-
guistic settings, including, notably, courtrooms. In her study of change of plea in Ari-
zona courts, Philips notes in particular a technique she calls “nailing it down,” in which
judges “simply ask question after question” until they overcome any resistance or de-
nial on the part of defendants and manage to elicit testimony in the desired form. Philips,
Ideology, 95. The professor in this excerpt arguably takes the process still further, liter-
ally directing the student to repeat the exact word needed for him to proceed further in
the exchange. But certainly the overall form of law school dialogue, with professors’
persistent and sometimes repetitive questioning, can be viewed as having some affini-
ties to this kind of demand for repair on the part of judges (and attorneys), who are simi-
larly reliant on question-answer adjacency pairs in achieving some quite specific, legally
constrained, discursive goals. - A few of the professors occasionally reminded the students of the historical era
in which the case took place; one professor in particular did this far more than the others.
However, in the overall sample, invocation of history was unusual. - See Nourse, “Passion’s Progress,” for an astute analysis of how such doctrinal
analysis can conceal and naturalize a culturally based and biased calculus. - As we have seen, this attempt to reach the street level is at times indexed by shifts
in speech style, which are essentially a form of breakthrough to performance. - Bernard Weissbourd has similarly described law as a kind of semiotic nexus.
Weissbourd, personal communication.
252 Notes to Pages 110–132