On Becoming a Legal Person 111yourself.” Before we get- is there a difference between the way
Schwartz looks at compensation and Scott looks at compensation?
What is it that Schwartz says about specific performance that Scott
probably would not say? Does Schwartz say that specific performance
undercompensates or overcompensates? This is important because it
goes to the fundament- again, of what we think it’s about. What we
think damages are about. What’s his argument about specific
performance?So, once again, the world is configured around argument, and we can best
understand even abstract theories by pitting them one against the other in ar-
gumentative dialogue. There is no question that in pedagogical terms, this
creates a vivid tableau for students seeking to learn these theories. And one
can imagine professors in other disciplines employing a similar strategy. How-
ever, this pedagogical tool arguably has particular resonance and impact in
the context of the overall epistemology and form of reading that is character-
istic of law training. And in the process, the people in legal landscapes, even
the philosophers who theorize about law, are defined by their positions in
dialogic argument.
An obvious extension of this logic is the characterization of legal actors
in terms of these opposed positions in a philosophical argument, especially
when they are conforming to the logic of a particular philosopher:
Transcript 6.5 [8/14/8]Prof.: Now what would a more fierce judge- a generous judge says to
you, “Okay, they’re trying to manipulate you, all right, into
relying.” Okay? What might a fierce- Holmes, Hand- judge do?
Student: ()
Prof.: “Hey, don’t sit around relying.” Do- what?
Student: “Get a contract and make a bargain.”
Prof.: “Get the bargain. Make the contract. By relying, you’re doing
what?”
Student: Being unreasonable.
Prof.: Hmmm?
Student: You’re being unreasonable, the reliance is not reasonable, because
the other person doesn’t know that you have decided to rely.This excerpt provides a marvelous example of the complexities of direct quo-
tation when used both for characterization and for pedagogy at the same time.
The professor begins with the predictable dialogic opposition between two
conflicting philosophers and philosophical positions: the person and the po-
sition are elided as they are voiced together through the direct quotations
“Okay, they’re trying to manipulate you, all right, into relying” and “Hey, don’t
sit around relying.” The direct quotation form begins to break down under
pressure from pedagogical function as the professor formulates the next ques-
tion: “‘Hey, don’t sit around relying.’ Do- what?” The phrase “Do- what?” is