- J. B. White, When Words Lose Their Meaning, 268.
- See Mertz, “Consensus and Dissent.”
- Levi, Introduction, 18.
- Id.
- See, e.g., Matoesian, Law and the Language of Identity; Pomerantz, “Attributions
of Responsibility.” - Appellate courts generally refuse to second-guess trial courts on factual issues,
in part out of deference to the firsthand opportunity that the trier of fact (the jury or, in a
bench trial, the judge) had to observe and assess witnesses in person (an aspect of evidence
known as “demeanor evidence”). Only in exceptional instances, where a trial court has
made a “clearly erroneous” decision, will an appellate court intervene over issues of fact;
these kinds of cases are not typically included in casebooks because they don’t help in elu-
cidating doctrine. - Again, note the use of seemingly little words like “wait” in this transcript to mark
pedagogical transitions; here it signals an interruptive repair in which the professor seeks
clarification. See also Transcript 4.18, in which the professor uses “Wait now” for simi-
lar purposes; later in the transcript she uses “Well, now wait a second” to interrupt the
student’s narrative and initiate an instructional repair in which she explains how the le-
gally structured narrative should be ordered, and then gives the student an opportunity
to try again. - Here we see the use of “okay” and “all right” as emphatic markers serving mul-
tiple discursive purposes; Chapter 7 discusses this phenomenon in depth. - This is obviously not true in the Civil Procedure classes taught to first-year stu-
dents, and it is likely that there is also variation regarding discussions of procedure in some
other classes, such as Legal Writing. - Note that, as Levi’s analysis demonstrates, the courts themselves may not be
able to clearly articulate the principle behind their decisions to view some analogies as
apt and others not. Rather, there may be an amorphous, culturally based sense that one
set of events ought to be remediated by law and others not—and some decisions may
lack even that sense of coherence. Over time, a doctrinal principle gains coherence as
courts and commentators perceive a guiding principle behind the evolving decision. The
genius of this is that shared cultural understandings can slowly enter the law as prin-
ciples through a gradual process wherein courts express a general, emergent social con-
sensus (much in the way Robert Burns has argued juries do; see Burns, A Theory of the
Trial). The danger, of course, is that there may be a variety of opinions as to how certain
situations should be dealt with across various strata of a society, and that the courts have
much better access to elite than nonelite points of view (clearly problematic in a pur-
portedly democratic state). - This is something of a simplification, as the class discussion had evolved into a
more complex discussion of the issues surrounding unilateral contract formation, as when
an offeror invites acceptance through performance. But understanding of these complexi-
ties is not necessary to the central point I’m making here. - One could think of this as reading for varying “interactional texts.” The recourse
to “unregulated” storytelling in law school classrooms finds an interesting parallel in the
jury room, where jury members during deliberations often tell stories that are not part of
the formal evidence (and therefore have not been subjected to the usual legal procedural
safeguards, such as cross-examination). Bennett and Feldman, Reconstructing Reality. - Sarat and Felstiner, Divorce Lawyers, document the way that divorce attorneys
use this kind of narrative to lower their clients’ expectations of the legal process while also
increasing their dependence on the attorney’s networks and expertise.
248 Notes to Pages 63–77