16 Introduction
Thus, I take the view that there is a “double edge” to law and to legal educa-
tion in this place and time: that the conceptual structure of U.S. law as it is taught
today arose not only as part of an ongoing social process involving domination and
power, but also as a not completely unsuccessful attempt to deal with difficult so-
cial dilemmas.^15 I argue, then, that there is something of value existing side by side
with some highly problematic features of the solution suggested by this society’s
dominant forms of legal reasoning. Along with legal theorists who have sought to
revive appreciation for the power and possibilities of the common law, I urge that
we consider not only the failures but also the victories and freedoms that have been
won using the language and procedures of Anglo-American law.^16 These victories
and possibilities do not erase the substantial injustices and difficulties that still exist;
there is clearly tremendous work yet to be done in moving to a genuinely demo-
cratic legal system in this country. And part of this failure to achieve truly demo-
cratic legal forms can be seen in crystallized fashion in the law school classroom.
However, if we are to rise above essentialist and overly simplified approaches in
envisioning reform, it is vital to take a nuanced view in which neither all of the
vices nor all of the virtues of our system of legal thought are ignored.
In addition to exploring this double edge in legal reasoning and education,
both sides of which are implicated in social power, I also argue that there are dy-
namics found in the law school classroom that do not directly translate into issues
of power. Like others who have studied linguistic interaction in detail, I find as-
pects of these classroom exchanges that are contingent, spontaneous expressions
of the particular people involved. Sometimes these linguistic exchanges are re-
sponses to structured aspects of the speech situation and institutional settings that
are not easily reduced to power alone; sometimes these interactions create unique,
individual linguistic footprints of the speakers themselves as they respond to one
another. It is my goal in this study to balance analysis of these more speech-
situation-specific characteristics of law school talk with careful attention to the
aspects of speech that are clearly responsive to power dynamics within and beyond
the classroom.
In the remaining sections of this chapter, I pause to outline key theoretical
issues from the diverse disciplines that inform this research. Thus, we will look at
existing scholarship on the role of language in social institutions, in socialization
processes, in education, and in law and legal education. The resulting model of
language, social process, psychology, and law will set the stage for subsequent dis-
cussion of what is happening in law school classrooms.
A Framework for Studying Language and Law
So much of our social world is dependent on our use of language. How we talk
turns out to be crucial in almost every imaginable context in which human beings
participate: in raising our children, in negotiating relationships, in formulating
policy, in passing judgment.^17 Many generations of anthropologists and linguists
have studied the role of language in human societies, trying to formulate an accu-
rate picture of the intricate interactions involved. I build on their work here in