- Burns, Theory of the Trial; for examples of creative, alternative approaches to teach-
ing and studying legal discourse, see Amsterdam and Bruner, Minding the Law; Cunningham,
“Lawyer as Translator”; Davis, “Law and Lawyering” and “Contextual Legal Criticism.” These
kinds of approaches open the door to one way that legal pedagogy could help transform
the profession, perhaps incrementally, from within; students would still learn the core
“grammar” of legal discourse, but would also receive extensive education on diverse ways
of deploying it in practice. - As Baker, who is quite critical of some aspects of legal pedagogy and discourse,
notes:
Although it is certainly possible, indeed likely, that rule-based reasoning... provides
an impoverished account of moral decision-making, it is difficult to imagine legal de-
cision-making that does not rely on some degree of abstraction.... Legal analogies
may debilitate and deform the more original and authentic accounts of the underly-
ing human conflict, but it is hard to see why legal analysts would not want to be guided,
at least in part, by the prior deliberations and vicarious exemplars of other legal pro-
fessionals. (Baker, “Language Acculturation Practices,” 145–146)He goes on to add that an ability to conceive and articulate the arguments on each side of
a combative argument is a necessary skill for attorneys, and so must be taught in some
form or other (although he urges that professors become more thoughtful about this). In
other words, some of these features of legal discourse are indeed part of the core language
taught to all initiates.
- Garth and Dezalay, The Internationalization of Palace Wars; Goodale, “The Glo-
balization of Sympathetic Law”; Nader, The Life of the Law; Santos and Rodriguez-Garavito,
Law and Globalization from Below; Riles, The Network Inside Out. - Lazarus-Black, The Vanishing Complainant; Merry, Human Rights and Gender
Violence. - See Greenhouse et al., Ethnography in Unstable Places; Nader, The Life of the Law.
- See Winter, A Clearing in the Forest, 331. One of the most interesting features of
legal language is its use of some very common linguistic features: analogy, for example,
and “reasoning through cases.” These features are found in other fields, including psycho-
analysis, medicine, and anthropology. Brenneis, “Telling Theories”; Forrester, “If p, Then
What?” Yet the same forms lead to quite different overall discursive practices and results,
as can be seen if we contrast Hirsch’s description of education in anthropology with the
description here of legal education. Hirsch, “Making Culture Visible.” In anthropology,
analogy and serial case discussions are used to open a field for exploration, unsettling taken-
for-granted cultural canons and prejudices. Though there are certainly anthropology-
internal hierarchies and canons, there is no organized adjudication of the analogies used
by professors and students, nor is a particular sequence of cases inevitably prescribed as
the only possible official precedential genealogy. (Perhaps the closest parallel is the sequence
by which histories of the field and subfields are taught and described in scholarly writing,
proceeding inevitably through certain figures—Malinowski, say, or Boas. But if a profes-
sor chooses to skip them and start the history elsewhere, the class or text will not be in-
validated by a higher authority.)
Colleagues who study comparative professions have commented to me that they see
no difference in kind between legal and other professional discourses, pointing to some
basic structures of reasoning or closed expert terminologies that law shares with other fields.
I would not deny this, and there are some interesting insights to be gleaned by observing
these similarities. But it is also important to acknowledge some crucial contextual differ-
ences among the professions as well, so that, for example, in law the use of analogy and
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