110 Similarity
proficient in a new verbal routine (so that the learner’s distinct voice is still
apparent in the back and forth between interlocutors).^26 Some of these cat-
egories can overlap in a single exchange, producing very interesting patterns
of footing and voice. Note that Silverstein’s point about inculcating an algo-
rithm of interrogation still holds whether the pair-part structure instantiates
a monologue in search of a telos, or a dialogue whose purpose is the uncover-
ing of legal truth.
(4) An obvious, but important, correlative pedagogical message is the con-
stant metalinguistic emphasis on language form as the actual source of episte-
mological certainty: that it is in and through speech that cases unfold,
arguments emerge, and legal truth is discovered. Matoesian has correctly ar-
gued that this process conceals how law “constructs claims to knowledge, truth,
and facticity in the details of discursive interaction,”^27 because the message is
conveyed through tacit metalinguistic structuring and ideology and is there-
fore naturalized. In other words, students are never explicitly told that episte-
mological certainty lies in dialogic form. Instead, they are gradually tutored
in a way of reading and speaking, at the same time as they are slowly reori-
ented to conceptualize people as above all producers of argument and strat-
egy. From this position, it appears natural to accept that the facts emerging
from the nested authoritative levels of discourse in legal settings will be the
basis for definitive legal findings, just as it seems unremarkable that we would
understand people who could be characterized quite differently (as distraught,
in conflict, behaving emotionally) as constantly motivated by their best pos-
sible strategic positioning in an argumentative territory defined by legal out-
posts. Thus, the same metalinguistic process that Matoesian identifies as
concealing the construction of legal epistemology and facticity is the process
by which these tasks are accomplished.
The use of direct quotation in law school classrooms moves even further,
beyond presenting the arguments of opposing parties, of courts, of lawyers,
or of internal dialogue in service of legal analysis. Professors also at times re-
count abstract theories in dialogic form, often after assigning a theoretical
article by a legal philosopher. These theories could be thought of as optimally
suited for presentation in third-person, descriptive format. And that does
happen. But in the following excerpt, we see the dialogic alternative, as the
professor presents the theories of two (of course, competing) legal scholars
on the issue of “specific performance”:Transcript 6.4 [8/40/11]Prof.: His argument is: “Look, the very fact that a person goes in there and
says, ‘Well, after all this has happened, I want specific performance,’
all right, is itself an indication that there is not substitute,” all right.
He starts off with the position, “Hey, both undercompensation and
overcompensation are bad, really bad,” all right. Then he says, “Look,
specific performance, is it something people are going to really want?
Because, in order to harass the other person, which is the main reason
given for why people will want it, you’re gonna pay a big price