Just Words

Law, Language, and Power, Third Edition

John M. Conley,William M. O'Barr,Robin Conley Riner

• Publisher: University of Chicago Press
• Year: 2019
• ISBN:
  9780226484532
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Is it "just words" when a lawyer cross-examines a rape victim in the hopes of getting her to admit an interest in her attacker? Is it "just words" when the Supreme Court hands down a decision or when business people draw up a contract? In tackling the question of how an abstract entity exerts concrete power, Just Words focuses on what has become the central issue in law and language research: what language reveals about the nature of legal power.John M. Conley, William M. O'Barr, and Robin Conley Riner show how the microdynamics of the legal process and the largest questions of justice can be fruitfully explored through the field of linguistics. Each chapter covers a language-based approach to a different area of the law, from the cross-examinations of victims and witnesses to the inequities of divorce mediation. Combining analysis of common legal events with a broad range of scholarship on language and law, Just Words seeks the reality of power in the everyday practice and application of the law. As the only study of its type, the book is the definitive treatment of the topic and will be welcomed by students and specialists alike. This third edition brings this essential textup to date with new chapters on nonverbal, or "multimodal, " communication in legal settings and law, language, and race.

CHAPTER ONE

The Politics of Law and the Science of Talk

Almost forty years have passed since we (O’Barr and Conley) began our own collaborative work at the intersection of law and language, and there is little in the field that is much older. The body of work that we consider here did not begin as the product of some theoretical master plan. Rather, it initially coalesced as scholars of diverse intellectual backgrounds arrived from many directions at the common realization that the language of the law is profoundly important. Some whose primary interest is the law have been struck by the centrality of language in almost every legal event, while others whose main interest is language have discovered the law as an extraordinary research setting. Collectively—if often unaware of each other—the members of this sometimes accidental alliance have produced the subject matter of this book.

When we first turned our attention to the subject in the mid-1970s, most scholarship that considered law and language focused on written legal language, especially the arcane language of statutes and legal documents. Although we found many articles and books that noted in passing the importance of the linguistic base of the law, we found only a single source that dealt with law and language in any real depth. This was David Mellinkoff’s monumental The Language of the Law (1963), which analyzes the structure of written legal language and explains the Latin, French, and Anglo-Saxon origins of contemporary usages. It took a new generation of language-oriented fieldworkers with sociological, anthropological, and sociolinguistic backgrounds to initiate a broader study of the language of the law as it operates in the many venues of daily practice. Beginning in about 1970, this new generation of researchers went to the places where people actually talk about their troubles and express their claims and began to study what happens there. It is their scholarship that provides the foundation for our argument about the importance of language and discourse in understanding law and legal processes.

In the first edition of this book, we grouped those who have studied law and language in this latter way into three general categories. One group focused explicitly and self-consciously on language as the medium through which law does most of its work. Early research in this category was exemplified by Brenda Danet’s (1980a) demonstration of the strategic significance of alternative ways of naming and categorizing objects and actions,1 as well as by our own investigations of the practical legal consequences of differences in courtroom speech styles (Conley et al. 1978; O’Barr 1982). A second category consisted of people interested primarily in language itself who found that legal and quasi-legal settings are a rich linguistic resource. Important early examples included four ethnomethodologists: Gail Jefferson (1980, 1985, 1988), who began to study talk about troubles in everyday contexts as a part of a more general investigation of conversation; Anita Pomerantz (1978), some of whose early research focused on how blame is managed in conversation; and Max Atkinson and Paul Drew (1979), who studied English court proceedings as specialized exercises in the management of conversation. The third group comprised researchers who were less self-conscious in their focus on linguistic issues but ended up paying close attention to the language of legal processes in order to explain the workings of the legal system. For example, in Susan Silbey and Sally Merry’s (1986) ethnographic study of community mediation, language emerged as a central issue even though the researchers themselves had little formal background in linguistics.

The particular body of work that is our focus here has introduced another important variable into the law-language equation: power. This research looks at the law’s language in order to understand the law’s power. Its premise is that power is not a distant abstraction but rather an everyday reality. For most people, the law’s power manifests itself less in Supreme Court decisions and legislative pronouncements than in the details of legal practice, in the thousands of mini-dramas reenacted every day in lawyers’ offices, police stations, and courthouses around the country—and, as we are becoming increasingly aware, in the streets, during traffic stops and other kinds of police-civilian interactions. Language is a critical element in almost every one of these mini-dramas, even those that escalate to violence. To the extent that power is realized, exercised, abused, or challenged in such events, the means are in large part linguistic. This book is a search for those linguistic means.

Focusing simultaneously on law, language, and power can give us new insight into what has been the fundamental question in American legal history: how a legal system that aspires to equality can produce such a pervasive sense of unfair treatment. In the one hundred fifty years since the ratification of the Fourteenth Amendment to the Constitution and its guarantee of equal protection, normative legal reform has succeeded, at least on some levels, in eradicating the most obvious forms of discrimination. The law permits all citizens to vote and hold public office. Federal and state laws prohibit employment discrimination on grounds of race, religion, gender, disability, age, and sometimes sexual orientation. No one may be excluded from public benefits for discriminatory reasons. In the courtroom, all criminal defendants are entitled to be represented by counsel. All citizens are eligible for jury duty, and lawyers may not rely on race or gender in selecting jurors for particular cases. Race is not a legitimate factor for judges to consider in sentencing.

Yet in the face of such undeniable progress in the law’s ideals, there is still widespread unease about the fairness of the law’s application. One can sense the problem just by spending time in a courthouse and paying attention to the daily routine. Listen to the way that police officers and judges speak to women seeking domestic violence restraining orders. Listen to the way that mediators interact with husbands and wives in divorce cases. Observe the reactions of judges and jurors to the testimony of different kinds of witnesses. Talk to small claims magistrates about what constitutes a persuasive case. Nobody is doing anything that the Supreme Court would condemn as a violation of equal protection. But it is hard to escape the feeling that the law’s power is more accessible to some people than to others.

What is it that gives rise to this feeling? Why do many people continue to think that the law does not treat them fairly? The answer cannot be found just in the study of legal norms. The law no longer returns fugitive slaves, treats women as the property of their husbands, or excludes African American citizens from juries. If the law is failing to live up to its ideals, the failure must lie in the details of everyday legal practice—details that often consist of language.

In the chapters that follow, we take up a number of compelling instances in which linguistic analysis2 has shed new light on the nature of the law’s power and the inequality of its application. In chapter 2, we address the frequently asserted claim that rape trials revictimize women who attempt to prosecute their assailants. We argue that the feeling of revictimization has little to do with the rules about introducing the victim’s prior sexual history, which so-called rape shield laws have attempted to reform. Rather, the reality of revictimization is to be found in the linguistic details of common cross-examination strategies that are taken for granted in the adversary system. Reformers, we conclude, have been looking in the wrong places, and the prospect for real improvement is uncertain.

In chapter 3, we focus not on a substantive area of the law (such as rape) but on a legal process that is brought to bear on a wide range of disputes: mediation. We look specifically at the current trend of resolving divorce cases through mediation rather than traditional adversary trials. According to the legal literature, this change is having two apparently contradictory effects: women tend to prefer mediation, but, from a financial standpoint, they do not do as well as they did under the adversary system. Collecting linguistic data from a variety of legal and social science sources, we attempt to discover the precise mechanisms through which these effects might be produced.

Building on the details of the previous two chapters, chapter 4 poses a more general question: Is there any linguistic substance to the claim that the law is fundamentally patriarchal? Legal writers often cite the revictimization phenomenon and the allegedly unfair treatment of women in divorce as evidence that the values of the legal system are the values of a historically male power structure; as a result, they argue, the law is insensitive to the social reality of women’s lives. We assess this claim linguistically. Going beyond the examples of rape and divorce, we reanalyze some of our own earlier work to make the case that the law displays a deep gender bias in the way it performs such basic tasks as judging credibility and defining narrative coherence.

The subject of chapter 5 is the natural history of disputes. We draw on research about individual components of the disputing process, from initial injury to trial, to create a linguistic model of the evolution of a dispute. The theme of power emerges again, in a subtle yet significant way. As they progress from wrong to resolution, disputes undergo multiple transformations. Each transformation is interactive, the product of negotiation between a disputant and another person—the adversary, a friend, a lawyer, a court clerk, a judge. And every such negotiation is in large part a contest for power whose outcome will shape the rest of the dispute.

Chapter 6 extends the basic argument of the book across places and cultures. There we argue for the importance of a linguistic orientation in the comparative study of law. We introduce work in legal anthropology, both older and newer, to make the point that some of our most venerable assumptions about the law of non-Western societies may derive from inadequate attention to linguistic detail. In chapter 7, we consider the concept of language ideology, defined as shared beliefs about language and how it works. We analyze several studies that reveal how language ideologies (and their manipulation) can affect power relations in legal proceedings, with profound implications for access to justice. Chapter 8 reviews developments in forensic linguistics—broadly, the use of linguistic analysis in legal contexts. We assess the work of several linguists in court cases and reflect on the potential for linguists to influence law and the legal system.

Chapters 9 and 10 are new to this third edition. Chapter 9 examines the contemporary linguistic concept of “multimodality” in legal contexts. Linguists have come to realize that live communication involves more than the sounds being uttered. It also involves such elements as spatial and visual relations among the participants, including gesture and interactions with objects in the world. Chapter 9 explains the multimodal aspects of communication and illustrates their potential significance in legal environments. Chapter 10 considers the relationship between race and legal language, drawing on linguistic analyses of the murder trial that ensued after the tragic death of African American teenager Trayvon Martin. Finally, in chapter 11, we offer some thoughts about the past, present, and future of law and language scholarship.

Why We Wrote This Book

In the late 1990s, we were motivated to write the original edition of this book by a growing sense of need. We believed that the law and language field, as theoretically diverse as it was, was sending a coherent message about law, language, and power. But this message had to be dug out of individual books and articles scattered here and there across the scholarly spectrum. We decided that the time had come for a single accessible source that organized some of the most significant law and language research around a unifying theme.

There were at that time a number of useful review articles and collections. Brenda Danet (1980b) and Don Brenneis (1988) had written comprehensive review essays about law and language, but even then both were out of date; Elizabeth Mertz (1994) had done a more recent survey. Among the then-available anthologies, the most helpful were Allen Grimshaw’s Conflict Talk (1990), Judith Levi and Anne Graffam Walker’s Language in the Judicial Process (1990), and David Papke’s Narrative and the Legal Discourse (1991). Grimshaw collects linguistic analyses of disputes and arguments from a variety of interesting cultural settings, including American and Italian nursery schools, psychiatric examinations, and labor-management negotiations. In Levi and Walker’s book, a set of conference papers, the contributions all endeavor to show the value of linguistic methods in understanding the American legal process. In Papke’s book, as its title indicates, the organizing theme is narrative, which the contributors study in contexts ranging from legal education to appellate opinions. None of these, however, is organized so as to tell what we believed to be the emerging theoretical story of the field.

The inadequacy of the late-1990s literature became especially evident in the dozens of courses that, between us, we had taught under the general rubric of law and society. In most instances, we brought together students from law schools and social science departments. Law and language was the exclusive topic of many of these courses; in the others, it was one of a few major topics. In both cases it was very difficult to find materials suitable for a class of students from varied disciplines. Much of the best work was in monograph form, substantial books devoted to a single, relatively narrow research project. (Moreover, some were available only at exorbitant cost.) The teacher thus faced a Hobson’s choice: take an excerpt short enough to pass copyright clearance, which would probably be insufficient to convey the point of the book, or make the students buy the book and devote a major segment of the course to a single topic. In addition, much of the important writing in the field was highly technical. This slowed the progress of the course to a crawl, if it did not cause the students to give up entirely.

For reasons such as these, we had long felt a need for a book that lays out the major issues in the field in a readable form. Our objective in the first edition was—and still is, in this third edition—to capture the theoretical import of the work we discuss, while reducing the technical aspects to what is absolutely essential. We continue to strive for accessibility in every sense of the word, to create a readily available book of reasonable length that uses a minimum of jargon and makes few assumptions about the prior knowledge of readers. Our hope was, and remains, that the entire book can serve as the core of a law and language course, while individual chapters may prove useful as freestanding linguistic readings in broader law and society courses.

As we write this third edition, the problem of a scant literature has disappeared. Articles, monographs, and especially collections have proliferated. To mention just a few of the more recent collections, see Lawrence Solan and Peter Tiersma’s Oxford Handbook of Language and Law (2012), a wide-ranging survey that covers such diverse topics as the history of legal language, the interpretation of statutes and other legal texts, courtroom discourse, and forensic linguistics; Deborah Tannen, Heidi Hamilton, and Deborah Schiffrin’s Handbook of Discourse Analysis (2015), with a section devoted to legal, political, and institutional contexts; Chris Heffer, Frances Rock, and John Conley’s Legal-Lay Communication (2013), with multiple chapters on courtroom interactions, police-citizen encounters, and written legal texts; and Susan Ehrlich, Diana Eades, and Janet Ainsworth’s Discursive Constructions of Consent in the Legal Process (2016), which considers that fundamental concept across the spectrum of legal applications. But we still see a need for a book like this one, appropriately updated. The scholarly community has reinforced that judgment by continuing to buy and assign the earlier editions. The general purpose of the book remains what it has always been: to present to the reader a variety of specific research projects that illuminate the significant if subtle relationship among law, language, and power, and to do so in a way that can be understood by a broad legal and social science readership.

While updating the book, we have found that almost all of the research examples we discussed in the first edition remain relevant and illuminating. Though we may now know more about the issues being investigated, the original studies are still salient and vital to an understanding of their respective topics. So we have kept them, with updating comments as appropriate.

As we have considered more recent research for inclusion in this edition, three themes have emerged as particularly compelling and worthy of development. We hesitate to call these themes new, because they are not, but their significance can be fairly described as newly appreciated. The first is the central role of language, and communication generally, in the currently toxic political and legal climate. In a variety of contemporary controversies—ranging from the 2016 presidential campaign to violent encounters between police officers and civilians, from the fate of Confederate monuments to political activism by professional athletes—much of the public argument seems to be about actual and intended communication: What did people say (in the broad sense), and what did they mean to say? The second theme, closely related to the first, is that the details of language are especially important to understanding the dynamics of racial encounters, particularly in the realm of criminal justice. The third theme is the dramatic expansion in how linguistic scholars conceive of language. In earlier editions, our consideration was limited to spoken and written words. Now, consistent with the evolution of language research, we pay more attention to the visual, spatial, and tangible components of communication that are part of any live linguistic interaction. These three themes are prominent in the updating we have done throughout the book and are ...