Jonathan Yovel's article, "Rights and Rites: Language and Performance in Law and Legal Education," continues his important ongoing project examining the centrality of performative language to law.¹ Yovel's work is marked by an unusually sophisticated understanding of the semiotic and linguistic dimensions of legal language, coupled with a concern for the social grounding of these dimensions - as well as a lawyer's sense of how things actually work in practice. In the present article, Yovel discusses the linguistic culture and ideology conveyed to incipient lawyers in law school classrooms, examining them through the lens provided by three forms of language function: rhetoric, representation, and performativity. He points out an ideological focus on "rhetoric through representation" found in law school pedagogy, which exists side-by-side in an uneasy relationship with the fundamentally performative character of both legal language and Socratic teaching. In this essay, I draw on my own study of law school language to elucidate the central role of texts and ideologies of text to the process outlined by Yovel. The resuting analysis gives added information on the vital part played by metalanguage in constructing a rhetoric - and epistemology - of "facticity." In this analysis, students perform epistemology as they learn to talk about, and construct, legal reality.

My research used in-class observation and taping of Contracts classes in eight different law schools, which ranged across the (indigenous) status hierarchy from the most elite to the "local" and night school class. We taped the first semester of each class and coded interactions in addition to taping.² The tapes were subsequently transcribed and coded again for aspects such as length of each turn, type of turn (volunteered, called-on, etc.), and were also examined qualitatively. In other papers, my co-authors and I have outlined the picture that emerged from quantitative analysis of interactions, with a focus on the complex effects of gender and race on discursive patterning.³ My earlier qualitative analyses from the study have indicated the ways in which classic Socratic dialogue instantiates a linguistic ideology focused on the pragmatics of text,⁴ while simultaneously stressing the importance of the dialogic form itself in the transformation of students into lawyers (taking part in the dialogue, speaking one side of an argument, as a crucial part of the new identity).⁵One by-product of this pedagogical discourse is the insistent marginalization of social context in law school discourse, which at the same time admits the possible importance of social factors yet also pushes them to the fringes of the discussion.⁶

If a core lesson of law school pedagogy is initiation into the pragmatics of legal discourse, and if this process relies fundamentally on performativity, then how is this aspect of legal language to be reconciled with Yovel's emphasis on representation and on "facticity as rhetoric"? I will argue that this apparent disjunction is mediated by an ideological focus on legal texts, which form the bulk of pedagogical material in initial law school training. Deeply entwined with this focus is a reorientation of students' moral and epistemological compasses, in which layers of legal authority and their power to constitute facticity become primary. Although there were interesting differences among the classrooms of my study, indoctrination into this approach was shared across all of the varying classes and professorial styles.

Much of legal pedagogy in the United States is centered on the reading of legal cases, typically appellate opinions. From the initial day of class, professors train students to read the stories of conflict contained in these cases through a new lens. Instead of focusing on the drama of the conflict, with its attendant moral and social contexts, students are encouraged to concentrate on the structures of text and authority that give legal opinions power.⁷ Thus, a student who begins by trying to talk about the people and dramatic situation involved in a case will typically be interrupted and refocused on aspects of legal procedure, argument, and categories (whether given by statute, precedent, or other authoritative legal source):

Student: Well the um the the patient was a woman who wanted a -

Professor: - How did this case get to the
appellate court?
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Example B:

Student: Um, that the plaintiff was a young, youthful man who -

Professor: - great, the plaintiff was a beautiful
man [ ]. (Class laughter) Is that what you said? [intervening clarifying turns omitted] Okay, all right, so there's a lot at stake in the choice of which branch of this rule to apply in this particular fact situation. And all I'm interested in, Ms. N., is what the arguments are, um, for cost of completion, which is what the plaintiff wants in both cases, and what the arguments are for diminution in value, which is what the defendant wants in both cases, all right? I want the argument, okay?
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Example C:

Professor: Well, if he's made an offer, he's revoked it and unless 2-205 is going to be applied, and there has to be a signed writing, unless you could argue estoppel, if you're dealing with the Code number 1-103, which opens the doors to the common law, you don't have that kind of protection, unless it's a consumer statute, or a federal trade regulation, regulation, you don't have that, that, kind of protection.

Student (indignant intonation): I.e., salespeople can lie?

Professor: Huh? Not only, i.e., salespeople can lie, i.e., salespeople do lie, constantly.
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Philosopher Stephen Toulmin has employed the term "warrant" to indicate the background information that permits us to make assertions. ⁸ In each of the above examples, professors are disrupting more standard narrative and moral approaches and moving their students' attention instead to the warrants provided by legal texts and arguments. In the first two excerpts, students attempt to introduce us to characters in the legal drama using narrative conventions that focus on descriptions of people's appearance and motivation. Instead, the professors ask the students to begin by locating themselves in the narrative vis-à-vis the procedural history of the case or the relevant legal issues and arguments. The procedural stance and legal issues involved are crucial legal warrants underlying a legal text's authority. If a legal opinion is to have weight, the case must be properly appealed to the appellate court that wrote the legal opinion, and the court must correctly define and deploy legal categories. Clearly, attorneys must be able to locate themselves vis-à-vis these pragmatic, textually-defined warrants in order to make effectual arguments to the court. In the final example, a student concerned with justice and fairness is encouraged to refocus her gaze on the relevant legal texts. The problem is not whether something is fair; rather, the key issue for a legal reader is what protections are given by particular legal text.

There are many dimensions to this shift in emphasis, from morally- and socially-grounded description to legal-textual warrants.⁹ For purposes of the current discussion, I will concentrate upon the concomitant shift in the epistemological status of "facts".

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Example D:

Professor: Does the court ever say - does the New Hampshire Supreme Court ever say, "And then we know for a fact that Dr. Magee said, quote, '[professor writes quote on blackboard]'"? Does the court ever say that?

Student: No

Professor: No. What does the court say? How does the court characterize what the doctor said? [9 sec. pause] What's the best we can say about these statements?

Student: That there's some likelihood that they had been spoken . . .

Professor: Okay, that's inferring from the fact that um we don't have any counterevidence, presented by the Supreme Court, but [ ]. The court says, specifically, something about these statements. The court doesn't say, "We know for a fact that these statements were made." [7.5 sec. pause] It's a little less definitive than. "We know for a fact that ..." [10 sec. pause] Um, yes?

Student: Um he says um, "There is evidence to the effect that the quoted operation was performed on the plaintiff in [ ] -

Professor: - Yes, several times, the court says "There's evidence to
the effect," or "Evidence was presented," or "There was evidence that." We're dealing with appellate opinion, which takes us back to the trial court. The trial court takes us back to the witnesses' documentary evidence, sometimes physical evidence ... [6.5 sec. pause]. The facts as they actually happened and the facts as reported in the appellate opinion, well, very often they're two quite different things. [....]

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The professor moves on to further discussion of how procedure affects the delineation of facts. The redefinition of the word "facts" here indicates the new legal framing: warrants for facticity are not claims about what "actually happened," but about what courts and juries have decided. We discern what they have decided through an archeology of text, a parsing of layers of legal authority discernable through textual indices. For example, the judges who write legal opinions will accept particular versions of what actually occurred in the case, depending upon the procedural stance of the case. If the person being sued (the defendant) files a "motion to dismiss" the case before it has actually gone to trial, then the question for the court is whether under any version there is actually a "live" legal issue. Thus, in such cases, the court is supposed to accept the version of the case that is most favorable to the person bringing the legal action (the plaintiff). The statement of "facts" in an appellate opinion in such cases, then, is not supposed to be a rendition that can be certified as factual in the usual sense. Rather, the legal story told in such cases is a collection of the plaintiff's allegations that, taken together, would give her the best shot at making a supportable legal claim.

Correct readings of such cases, then, require a suspension of disbelief, an epistemological hedging that is quite different from the underpinnings of the "conflict stories" generally told outside of legal fora. As we have seen, legal accounts of conflict are centered on warrants derived from layers of legal authority. This not only directs the reader toward different details in selecting which events and details to recount. It also means that the very epistemological status of the "facts" as recounted depends upon layers of legal authority. On the one hand, there is a far more modest claim as to the factual authenticity of these recounted events than in would be found everyday trouble-telling. The claim is not a strong assertion that these events actually occurred. Rather, the claim is that this version of what occurred is to be accepted as true, based on the legal status of the case. If the case has already gone to trial and a jury has accepted one party's version of the facts, then that is the version we must accept in reviewing the case at an appellate level. The jury may have been mistaken in its weighing of the evidence, but unless there is a blatant indication that it overstepped its prerogatives, we are to adopt the version of the "facts" accepted by the jury. Just as in cases involving motions to dismiss, the status of the story told in the "facts" is thoroughly hedged and defined by issues of legal authority.

At the same time, a statement of legal "facts" contains a highly determinative epistemological claim. More than would be possible in everyday discourse, a court, in stating the legal version of what has occurred, is rendering an authoritative account. Whether or not events actually occurred in this way, this is the version of what occurred that is declared to be legally accepted. It is therefore the version of the story upon which any legally-sanctioned action will be taken. From this vantage, we see that the selection of the word "facts" to describe legal storytelling is an apt index of the definitive social power entailed in this process. In each case, a combination of procedural and legal/doctrinal warrants delimit which versions of what occurred - and indeed, which aspects of the events in question - will be included in a set of legal "facts."

When students are called on to recite these "facts," they are learning to create a new legally-defined narrative of "what occurred." This narrative is at once quite modest and highly authoritative as to epistemological certainty, and students must undergo a quiet but radical reorientation in their readings. In one sense, it really does not matter what occurred because all we can know is what the legal decision-maker has accepted as "fact" for certain purposes. In another sense, an accurate reading of the "facts," replete with quite particular, legally-relevant details, gives students a new power. They now know how to construct versions of conflict stories that can be understood by legal authorities and given legal effect. These aspects of fact construction are ubiquitously conveyed in classroom exchanges designed to unmoor students from non-legal anchors for the construction of fact. At the same time, the focus on "what legal texts say is real or possible" subtly reorients students' attention from non-legal anchors for normative judgment as well.

Understanding this highly performative approach to the construction of fact and to the representation of facts in legal discourse can help us make sense of the apparent conundrum posed by Yovel's dual focus on performativity and on "rhetoric through representation" in legal pedagogy and discourse. Representation and facticity are heavily mediated by legal epistemology in these discourses, and that epistemology performs a highly creative sleight of hand - at times hiding the heavily performative character of legal language behind the epistemological screen provided by texts and textual ideologies.