II

..

SIMILARITY: LEGAL EPISTEMOLOGY

Therefore it appears that the kind of reasoning involved in the

legal process is one in which the classification changes as the

classification is made. The rules change as the rules are applied.

More important, the rules arise out of a process which, while

comparing fact situations, creates the rules and then applies

them.^1

The task... then, is not to discard rights but to see through or

past them so that they reflect a larger definition of privacy and

property: so that privacy is turned from exclusion based on self-

regard into regard for another’s fragile, mysterious autonomy;

and so that property regains its ancient connotation of being a

reflection of the universal self.^2

I

n this section we trace the common thread that binds the quite divergent class-
rooms of this study together, an underlying approach or worldview that I call
U.S. legal epistemology. In Chapter 4 we examine the shared underlying approach
to reading (i.e., to written texts and their contexts) that is conveyed in first-year
law school training across otherwise diverse classrooms. We begin with a close study
of the discourse for which law school is famous: classic Socratic method teaching.
We ask: In its most highly structured form, what does this discourse style “do,”
how does it teach? This analysis reveals some core metalinguistic traits of legal
epistemology, traits that are encoded in Socratic pedagogy. The chapter moves on
to demonstrate that, throughout the classrooms of this study (all of which vary to
some degree from the most rigid form of Socratic teaching), there is still an ap-
proach that shares many of the underlying tenets of the classic Socratic method,
conveying the same core metalinguistic features through a variety of discursive
styles. Thus, in the second half of Chapter 4, we trace these features as they emerge
in the universally shared “internal” categories of a legal reading: the labels that