Connecting Language and Disciplinary Knowledge in English for Specific Purposes: Case Studies in Law 9781783098514

Citation preview

Connecting Language and Disciplinary Knowledge in English for Specific Purposes

NEW PERSPECTIVES ON LANGUAGE AND EDUCATION Series Editors: Professor Viv Edwards, University of Reading, UK and Professor Phan Le Ha, University of Hawaii at Manoa, USA Two decades of research and development in language and literacy education have yielded a broad, multidisciplinary focus. Yet education systems face constant economic and technological change, with attendant issues of identity and power, community and culture. This series will feature critical and interpretive, disciplinary and multidisciplinary perspectives on teaching and learning, language and literacy in new times. Full details of all the books in this series and of all our other publications can be found on http://www.multilingual-matters.com, or by writing to Multilingual Matters, St Nicholas House, 31–34 High Street, Bristol BS1 2AW, UK.

NEW PERSPECTIVES ON LANGUAGE AND EDUCATION: 55

Connecting Language and Disciplinary Knowledge in English for Specific Purposes Case Studies in Law

Alissa J. Hartig

MULTILINGUAL MATTERS Bristol • Blue Ridge Summit

DOI 10.21832/HARTIG8507 Library of Congress Cataloging in Publication Data A catalog record for this book is available from the Library of Congress. Names: Hartig, Alissa J., author. Title: Connecting Language and Disciplinary Knowledge in English for Specific Purposes: Case Studies in Law/Alissa J. Hartig. Description: Bristol, England; Blue Ridge Summit, PA: Multilingual Matters, [2017] | Series: New Perspectives on Language and Education: 55 | Includes bibliographical references and index. Identifiers: LCCN 2017013360| ISBN 9781783098507 (hardcover : acid-free paper) | ISBN 9781783098514 (pdf) | ISBN 9781783098521 (epub) | ISBN 9781783098538 (kindle) Subjects: LCSH: Law—Language—Study and teaching. | Law—Methodology—Study and teaching. | Legal composition—Study and teaching. | English language—Study and teaching. Classification: LCC K213 .H365 2017 | DDC 340/.14—dc23 LC record available at https://lccn.loc.gov/2017013360 British Library Cataloguing in Publication Data A catalogue entry for this book is available from the British Library. ISBN-13: 978-1-78309-850-7 (hbk) Multilingual Matters UK: St Nicholas House, 31-34 High Street, Bristol BS1 2AW, UK. USA: NBN, Blue Ridge Summit, PA, USA. Website: www.multilingual-matters.com Twitter: Multi_Ling_Mat Facebook: https://www.facebook.com/multilingualmatters Blog: www.channelviewpublications.wordpress.com Copyright © 2017 Alissa J. Hartig. All rights reserved. No part of this work may be reproduced in any form or by any means without permission in writing from the publisher. The policy of Multilingual Matters/Channel View Publications is to use papers that are natural, renewable and recyclable products, made from wood grown in sustainable forests. In the manufacturing process of our books, and to further support our policy, preference is given to printers that have FSC and PEFC Chain of Custody certification. The FSC and/or PEFC logos will appear on those books where full certification has been granted to the printer concerned. Typeset by Nova Techset Private Limited, Bengaluru and Chennai, India. Printed and bound in the UK by the CPI Books Group Ltd. Printed and bound in the US by Edwards Brothers Malloy, Inc.

Contents

Acknowledgements Transcription Conventions 1

ix xi

Introduction ‘What’s a Concept?’ From Subject Matter Knowledge to Disciplinary Knowledge Moving from Content to Concepts Addressing Misconceptions about Multilingual Legal Writers Legal Cultures, Disciplinary Knowledge and Disciplinary Literacy Teaching and Learning in English for Specific Purposes Organization of the Book

1 1 2 3 4 6 6 7

Part 1: Language, Literacy and Disciplinary Knowledge 2

3

Second Language Legal Literacy The Challenges of Developing Legal Literacy in L1: Disciplinary Specificity Combining Disciplinary and Cultural Specificity: Common Law Discourse and the Concept of Precedent International LL.M. Students and L2 Legal Literacy Tensions between Language and Disciplinary Knowledge in ESP for Law Chapter Summary Linking Language and Concepts through Pedagogy Concept-based Instruction: A Sociocultural Approach to Connecting Language and Disciplinary Meaning Identifying Concepts for Instruction: Disciplinary Specificity vs the Common Core Treading ‘on Lawyers’ Land’? Distinguishing Discourse-Structuring Concepts from Discourse-Relevant Concepts

v

11 11 18 20 21 23 25 25 26 30

vi Connec t ing L anguage and Disc iplinar y Knowledge in English for Spec if ic Pur poses

An Approach to Linking Language and Disciplinary Knowledge in Concept-based Pedagogy for Law Chapter Summary

31 36

Part 2: Case Studies Introduction to the Case Studies 4

5

6

Hong: Legal Concepts Mediating Language Use Professional, Academic and Language Learning Background ‘So This is Like the Same. That’s What I Understand.’ Applying Civil Law Concepts to Common Law Genres Continued Challenges: Case Reading and Secondary Sources in Memo I Shifting Orientation from Statutes to Rationale Crossing the Threshold: Recognizing Precedent as a Discourse-Structuring Concept Connecting Legal Concepts to Genre Structures Developmental Trajectory and Mediating Factors Chapter Summary

37 42 42 43 48 52 54 57 61 64

Weixin: Understanding Precedent but Struggling with Language Professional, Academic and Language Learning Background ‘遵循先例. Oh! Chinese is Very Easy!’ Using the L1 to Successfully Mediate L2 Understanding Struggles with Applying a Common Law Rule Misunderstanding Audience, Purpose and Task Focus on Genre as a Template Lexicogrammatical Awareness and Orientation to Forms Difficulties with Reading Comprehension Overgeneralizing Discourse-Relevant Concepts Developmental Trajectory and Mediating Factors Chapter Summary

65 66

Bader: Negotiating Genre to Express a Common Law Argument Professional, Academic and Language Learning Background Understanding Common Law Analysis Developing a Reading Focus and Increasing Precision in Writing ‘‫ ’دﺟﺎج ﻣﺸﻮي‬and the Mediating Role of Affect Challenges with Genre Conventions: Explaining a Common Law Rule Rule Statements and the Scope of a Common Law Rule Developmental Trajectory and Mediating Factors Chapter Summary

94 94 95 97 100

66 67 76 83 85 88 91 92 93

105 111 122 124

Content s

7

Alima: Distinguishing Discourse Proficiency from ‘Professional Vision’ Professional, Academic and Language Learning Background Professional Vision and Legal Writing Initial Struggles with Professional Vision ‘I Don’t Know What They Want from Me’: Uncertainty and Coping Strategies Reliance on Scaffolding and Difficulty with Transfer ‘Thinking Like a (US) Lawyer’? Discourse Competence and Professional Vision Developmental Trajectory and Mediating Factors Chapter Summary

vii

125 126 127 128 135 145 154 156 161

Part 3: Addressing Connections between Language and Disciplinary Knowledge 8

Implications for Research and Teaching Orientation to Tasks and its Effect on Disciplinary Literacy Connections between Language and Disciplinary Knowledge in the Case Studies Other Factors Influencing L2 Legal Literacy Development Looking Below the Surface: Same Words, Different Trajectories Connecting and Contrasting Disciplinary Literacy Across Languages and Cultures Developing as an ESP Practitioner Considerations for Research and Practice

165 166

Conclusion Epilogue References Index

180 181 182 187

168 171 172 174 174 176

Acknowledgements

Several people helped make this book possible. First and foremost, it would not have been possible without the generosity of the students who agreed to participate in the study. I also thank the law faculty, staff and administrators who helped me better understand their discourse community, welcomed me as a collaborator, and connected me with members of the legal writing community. This study benefited from support from a dissertation fellowship funded by Mr Gil Watz, a generous supporter of research in applied linguistics at Penn State. I was fortunate to have several people guiding me throughout the process of developing this project: Celeste Kinginger, Karen Johnson, Xiaofei Lu, Dorie Evensen, Sara Krome, Karen Bysiewicz, Caroline Sheldon, Mya Poe, Steve Thorne and Jim Lantolf. Many of the ideas developed here also came out of conversations with Jiyun Kim, Julieta Fernández, Kwanghyun Park and Rebecca Zoshak, among many others. I thank Sheng-Hsun Lee and Buthainah Al-Thowaini for their translations of key parts of the classroom interactions in the study, and Mingxin Li and Mulhim Almulhim for their insights into Chinese and Saudi law. I am also grateful to my colleagues at Portland State, Susan Conrad and Naomi Adiv, who offered feedback on my initial book proposal, as well as Donna Bain Butler, whose comments on the manuscript greatly strengthened it. Finally, I thank my parents for their ongoing support, as well as Marc, my tireless reader and copyeditor.

ix

Transcription Conventions

(…) [] (( )) #word # @ @word worwo:rd = °word°

Ellipses in parentheses indicate longer pauses; (.) and (..) indicate shorter pauses Brackets indicate overlapped speech Double parentheses indicate actions performed by the speaker Hash mark before a word indicates a guess at unclear or unintelligible talk Hash mark alone indicates that talk occurs but is unintelligible; one mark per syllable At sign indicates laughter At sign attached to a word indicates that the word is expressed with laughter Dash indicates a word that has been cut off Colons indicate elongation of a sound Equal signs indicate latching between utterances of two separate speakers Degree signs on either side of a word indicate that the word is whispered

xi

1

Introduction

‘What’s a Concept?’ This question came up in class during my first semester as a graduate student, and it has remained with me ever since. In many ways, it was this question that led to the study described in this book. About a year after beginning to think about the role of concepts in language instruction, I started working as a language specialist with international graduate students in law. As I sat in on legal writing classes, I heard over and over again that the primary goal of such courses was to help students to ‘think like a lawyer.’ In my work with students, it became clear that discipline-specific conceptual frameworks played an important role not just in their subject matter knowledge, but also in their ability to make sense of language use in the genres that they were learning to read and write. Different ways of ‘thinking like a lawyer’ shaped learners’ approaches to looking at legal texts. It seemed that these students were learning at least two different types of disciplinary concepts in their law courses. One category of concepts included the kinds of terms that are typically found in legal vocabulary lists and are recognizable as key terms even by those outside the field, such as mens rea or proximate cause. These kinds of terms, which can be described as discourse-relevant concepts, are typically associated with students’ knowledge of legal doctrine and appear overtly in legal texts. A second category of concepts, however, played a more subtle role in students’ learning. These included concepts that students were briefly introduced to at the beginning of their studies, such as the notion of precedent or reasoning by analogy, but which continued to come up implicitly in the structure of a wide range of classroom interactions, writing tasks and reading assignments. Although this second category of concepts shaped the discourse used throughout this instructional context, they were often not mentioned overtly. For a number of students, it was this second category, discourse-structuring concepts, that was more challenging. This book argues that discourse-structuring concepts can be a useful tool in the teaching of English for Specific Purposes (ESP) and academic literacy more broadly, as well as a lens for research. The book presents a pedagogical model for incorporating such concepts into disciplinary language instruction 1

2

Connec t ing L anguage and Disc iplinar y Knowledge in English for Spec if ic Pur poses

and follows four focal participants as they learn to read and write new genres in a second language and disciplinary culture. By examining not just students’ written texts, but also their reading practices and interactions in class and in tutoring sessions, the book traces the ways in which disciplinary knowledge and language interact as students develop academic literacy in a new disciplinary community.

From Subject Matter Knowledge to Disciplinary Knowledge Various models of genre and disciplinary writing development have explored relationships between subject matter knowledge and writing development in specific disciplines. Tardy (2009), for example, shows how formal, process and rhetorical knowledge connect with subject matter knowledge, becoming ‘increasingly integrated with growing expertise – inseparably so’ (Tardy, 2009: 22) as learners develop their genre knowledge. Similarly, Beaufort’s (2007) model of discourse community knowledge identifies connections among subject matter knowledge, genre knowledge, writing process knowledge and rhetorical knowledge, describing these components as ‘interrelated and interactive’ (Beaufort, 2007: 143). The way that subject matter knowledge is defined across models varies, however. Writing about general composition instruction, Jolliffe (1995) characterizes subject matter knowledge as the general topic area addressed in a text. Tardy (2009: 22) describes it as ‘knowledge of the relevant content’ within a given field. Beaufort (2007), however, highlights two separate components of subject matter knowledge: factual knowledge and conceptual knowledge. She further describes critical thinking as a part of subject matter knowledge, characterizing this as ‘knowing how to frame the inquiry, what kinds of questions to ask or analytical frameworks to use in order to “transform” or inscribe documents with new meanings(s)’ (Beaufort, 2007: 19). In this book, I use disciplinary knowledge to indicate this latter form of subject matter knowledge. I do so in order to emphasize its role not just as a source of content within disciplinary texts, but also as an expression of disciplinary epistemology. This approach further aligns with other perspectives on disciplinary writing. Considering instructor comments relating to argument and structure, for example, Lea and Street (1998: 162) argue that what makes a piece of student writing ‘appropriate’ has more to do with issues of epistemology than with the surface features of form to which staff often have recourse when describing their students’ writing. That is to say, underlying, often disciplinary, assumptions about the nature of knowledge affected the meaning given to the terms ‘structure’ and ‘argument.’

Introduc t ion

3

In a similar vein, Dressen-Hammouda (2008: 238) discusses this kind of subject matter knowledge in terms of symbolic genres, or unexpressed patterns for seeing, interpreting, knowing or being that individuals come to embody within their disciplinary identity and share as a result of collectively carrying out the activities of their community. Practitioners rely on these symbolic genres to elaborate the visible materialized genres – linguistic, visual, graphic, gestural, or behavioral – they use to communicate with one another Similarly, Duff (2010: 170) argues that ‘identity work and the negotiation of institutional and disciplinary ideologies and epistemologies are core aspects of the production and interpretation of academic discourse.’ These approaches, which range from ESP to academic literacies to language socialization, all highlight ways in which disciplinary knowledge comes to represent more than just content. Disciplinary knowledge includes ways of seeing, communicating and doing that are specific to a discipline.

Moving from Content to Concepts While the idea of connecting language and disciplinary content in English language teaching is not new (see, e.g. Brennan & Van Naerssen, 1989; Brinton et al., 1989; Bruce, 2002; Fortanet-Gómez & Räisänen, 2008; Lyster, 2007; Swain, 2001), distinguishing among the types of disciplinary knowledge that are most relevant for language teaching has been less fully explored. There is often a tension between language and content in ESP, with distinctions made between ‘carrier content’ and ‘real content’ (Dudley-Evans & St. John, 1998), for example. From this perspective, the carrier content provides little more than a disciplinary context through which the ‘real’ content of the ESP curriculum, for example, language for describing processes or comparisons, can be transmitted to students. Similarly, writing about English for Legal Purposes, Howe (1993: 152) makes a distinction between two types of disciplinary content: (1) factual and linguistic knowledge and (2) the knowledge of disciplinary concepts. She goes on to caution that ‘if we stray into the territory of legal concepts, then we are on lawyers’ land, and must beware’ (Howe, 1993: 152). If we take the perspective on disciplinary knowledge outlined above, however, there seems to be a need for ESP practitioners and others who support students’ disciplinary discourse socialization to attend to the conceptual frameworks that shape the genres students are learning. This book offers an attempt to do so through the lens of discourse-structuring concepts, drawing on principles of concept-based instruction (CBI) from sociocultural theory (Lantolf & Poehner, 2014; Lantolf & Thorne, 2006) and tracing the

4

Connec t ing L anguage and Disc iplinar y Knowledge in English for Spec if ic Pur poses

path of four focal participants as they learn to read and write new genres in a second language and legal culture. Throughout the case studies, this sociocultural theoretical lens sheds light not just on how the texts learners produce change over the course of the term, but also how this is linked to a deeper trajectory of navigating new forms of disciplinary knowledge.

Addressing Misconceptions about Multilingual Legal Writers This book also grew out of a need to address problematic assumptions about language and culture that I encountered in some parts of the legal education community. I found that discussions of international law graduates too often framed their first languages and professional experience as a liability rather than as a resource. These beliefs surfaced in subtle ways, such as when students were told not to use their L1 when taking notes in class or when they were scolded for using their L1s in social conversations or study groups with their peers. In an extreme formulation of these beliefs, Lewinbuk (2008: 10) argues that ‘successful lawyers cannot think in different languages.’ She asserts that, to be successful: First, the students need to commit to converting their entire thinking process into the native language of the country in which they are studying. Second, the students need to commit to converting their law-related thinking and writing into one that is acceptable in the legal community in which they are studying. (Lewinbuk, 2008: 10–11) In the same article, Lewinbuk (2008: 11–12) goes on to characterize second language acquisition (SLA) through these means as a relatively straightforward, purely cognitive process: Over time their brains will transition into mainly formulating their sentences in the native language of the country in which they are studying instead of their native languages. Their vocabularies will grow and they will slowly be liberated from language-related limitation of expression. […] If they are able to do so, their professional communication will likely become indistinguishable from attorneys who are native speakers. The author advocates eliminating the use of languages other than English and having multilingual law students watch movies and listen to music in English as a way of fostering immersion. In a later article, Spanbauer and Lewinbuk (2008–2009: 250) claim that their proposed method for cross-cultural legal instruction, including the use of children’s literature and storytelling to link broad cultural values to legal

Introduc t ion

5

texts, ‘accomplish[es] something linguists and other theorists advocate as necessary – immersion, via which acculturating individuals avoid using their native language dictionaries or even communicating in their native language during their period of conversion to proficiency in a new language.’ As readers in applied linguistics will undoubtedly note, these characterizations of SLA stand at odds with most current work in the field. Neither flooding learners with linguistic input in whatever form is readily available nor enforcing a strict separation between languages is necessary or sufficient for fostering students’ development of the kinds of disciplinary literacy that are needed for graduate-level legal education. Another view that pervades many discussions of L2 law students is the idea that they must shift not only from one clearly bounded linguistic system into another, but also from one discrete cultural system into another. This position is often justified by referencing work such as Nisbett’s (2003) Geography of Thought or Hofstede’s (1980) value-orientations framework, citing differences related to individualist–collectivist binaries and other similar categories. The approach described in Spanbauer and Lewinbuk (2008– 2009) above, which advocates a monolingual and monocultural classroom environment for international law students, illustrates this perspective. Spanbauer and Lewinbuk (2008–2009) ground their approach on the idea that ‘contradictory or conflicting meaning systems “cannot simultaneously guide cognition”’ (2008–2009: 232). The internal quotation here comes from a priming study by Hong et al. (2000), which the authors rely on for a large part of their theoretical grounding. Hong et al. (2000) look at whether ‘Westernized’ English-Chinese bilingual Hong Kong college students would use more collectivist or individualist explanations to describe a picture of one fish swimming in front of a group of other fish after being primed with images of either Chinese or American cultural icons (a picture of a dragon together with the character 中 (zhong, the first syllable in the word ‘China’: 中国), the Forbidden City and Confucius; or an American flag, the White House and Abraham Lincoln). In the study, no information is given regarding the languages used in the task prompts, the languages used by participants, or any specific data showing whether or not the participants had previously had significant contact with American culture, or even whether the participants considered themselves to be bicultural. The rationale behind choosing American rather than British cultural icons is also left unexplained, despite Hong Kong’s historical relationship with the UK. Spanbauer and Lewinbuk (2008–2009) use this study to generalize more broadly to international students studying law in the United States, arguing that these students must be similarly primed with general American cultural concepts in a monolingual English environment in order to facilitate their adoption of ‘American’ forms of legal reasoning and overall cultural integration. The American cultural concepts that Spanbauer and Lewinbuk advocate for incorporating into the curriculum are all linked to what they refer to

6

Connec t ing L anguage and Disc iplinar y Knowledge in English for Spec if ic Pur poses

as ‘American exceptionalism’ (2008–2009: 235), adopting Alexis de Tocqueville’s formulation, which they describe as ‘a core system of uniquely American qualities, values, and beliefs consisting of “individualism, egalitarianism, and a readiness to pursue disputes through litigation”’ (2008–2009: 235). They go on to cite five other ‘uniquely American’ qualities from other sources, namely ‘liberty, egalitarianism, individualism, populism, and laissez-faire’ (2008–2009: 235).

Legal Cultures, Disciplinary Knowledge and Disciplinary Literacy Although it is possible that the characteristics listed above may be somehow linked to an American sense of identity, it is far from clear that such values play a significant role in differences between US common law literacies and legal literacy practices or argumentation in other jurisdictions. This suggests a need for a better model for understanding which types of knowledge are relevant for instruction as well as a better sense of how students actually deal with navigating two or more languages and legal cultures in their studies. This book, therefore, addresses some of the ways that discipline-specific conceptual knowledge interacts with the development of disciplinary literacy in a second language and legal culture. The use of the term ‘literacy’ here aligns with a broad view of academic literacy, defined as ‘the ability to communicate competently in an academic discourse community’ (Wingate, 2015: 6). In line with Wingate’s (2015) definition, the perspective taken in this book looks at academic writing not in isolation but rather as connected to disciplinary epistemology, reading practices, and instructional interactions. By looking at students’ trajectories from each of these perspectives, it is possible to gain a fuller picture of how disciplinary literacy develops.

Teaching and Learning in English for Specific Purposes The book also addresses calls for more research on teaching and learning in English for Specific Purposes (ESP). In Ann M. Johns’s (2013: 20) overview of the history of research in ESP, she notes that ‘post-secondary academic texts, particularly those written by graduate students, have been the preferred sites for ESP research’ (emphasis in original). In discussing the future of the field, however, Johns (2013) advocates for an increased focus on classroombased research along the lines of Cheng (2011) and Tardy (2009). One important aspect of Cheng’s (2011) considerations for ESP classroom research is his reappraisal of Hutchinson and Waters’s (1987) learning-centered approach to ESP. As it was originally formulated, this approach rejected the need for

Introduc t ion

7

discipline-specific analyses of language use, a move that was sharply criticized by other researchers in ESP. Cheng (2011), however, argues that a focus on teaching and learning need not exclude an emphasis on disciplinary specificity. As he explains, ‘With insights drawn from ESP classroom research, we can assess how genuinely we have embraced our emphasis on language and context specificity in our ESP pedagogical practices’ (Cheng, 2011: 68). The study also responds to calls for more qualitative research that traces the trajectory of learning to write in a specific discipline. As Duff (2010: 170) notes, ‘insufficient research has examined, in an ethnographic or otherwise in-depth, longitudinal, and qualitative manner, the nature and effects of scaffolding and enculturation on students’ acquisition and production of target genres and of the tacit cultural knowledge represented by such genres.’ Cheng (2008: 52) likewise argues that ‘given the lack of attention in existing ESPG studies to the processes through which students develop genre awareness and discipline-specific writing, more investigations, especially case studies that allow for the extensive display of data, seem necessary.’ The study also responds to Tardy’s (2011: 2) call for ‘continued scholarship that examines genre specifically in second language writing. One challenge in this endeavor is to look beyond a single genre tradition – most commonly, ESP – to other theoretical and pedagogical frameworks that may inform an understanding of genre in second language writing.’ This study draws on Vygotskyan sociocultural theory as well as cognitive linguistics to better understand how learners develop the ability to perceive and communicate meaning in new disciplinary genres through the use of qualitative case studies.

Organization of the Book The book has three aims, which are addressed through its three sections. The first, which is addressed in Part 1, is to help the reader understand how language and disciplinary knowledge are connected in legal reading and writing tasks in both L1 and L2 and to offer a model for addressing these connections through instruction. Chapter 2 discusses the challenges presented by both the disciplinary and cultural specificity of law and how this in turn makes law a particularly rich site for the investigation of connections between language and disciplinary knowledge in ESP. Chapter 3 then presents a sociocultural model for connecting language and content in ESP through the incorporation of key disciplinary concepts in the ESP curriculum. This model uses the cognitive linguistic notion of conceptual blending as a way of foregrounding connections between key disciplinary concepts and their expression in the genres that law students read and write. The second aim, addressed in Part 2, is to provide a rich, empirically derived portrait of how individuals from different professional and linguistic backgrounds deal more or less effectively with the challenges posed by these

8

Connec t ing L anguage and Disc iplinar y Knowledge in English for Spec if ic Pur poses

connections between language and disciplinary knowledge, and to identify factors that promote or impede their development of L2 legal literacy. This section draws on case studies grounded in the analysis of textual, audio and video data collected across the course of a fourteen-week semester to illustrate these trajectories. Chapter 4 focuses on Hong, a recent law graduate from China, and the ways in which her development of L2 legal literacy was linked to internalizing the concept of precedent. Chapter 5 presents Weixin, a Chinese lawyer with a year and a half of experience working as a legal assistant before beginning her graduate program in the United States. Although Weixin was able to draw on her prior legal training and professional experiences in some effective ways, her focus on structural elements of the memorandum genre often undermined her legal literacy development. Chapter 6 examines the case of Bader, a Saudi lawyer with four years of professional experience at a bank in Riyadh, and considers how his concern with expressing his arguments effectively pushed him to progress far beyond many of his peers. Chapter 7 then considers how Alima, a recent Saudi law graduate, navigated the legal writing course when the target situation it imagined for students did not align with her intended future. The third aim of the book, addressed in Part 3, is to synthesize the findings of the case studies and to use them to offer recommendations for instruction and program design. Chapter 8 draws on the connections between language and disciplinary knowledge that have been highlighted throughout the book to make recommendations for ESP practitioners and others who work with multilingual writers in the disciplines. The chapter also suggests that disciplinary concepts have a greater role to play in ESP. Despite the focus on law in this book, the issues addressed here are not unique to this field. Throughout the book, the discipline of law is used as a lens for examining broader connections between language, culture, and disciplinary knowledge and their relevance for ESP and writing in the disciplines. Although law may at first seem like a special case, students who are learning to ‘think like a biologist’ or ‘think like a historian’ are likely to face many of the same challenges. Although the precise nature of the relationship between disciplinary knowledge and language may be different in each case, navigating these connections is a challenge that will confront any student who is entering a new disciplinary community for the first time.

Part 1 Language, Literacy and Disciplinary Knowledge

2

Second Language Legal Literacy

The Challenges of Developing Legal Literacy in L1: Disciplinary Specificity Tried tonight to read a case for the first time. It is harder than hell. […] OK. It was nine o’clock when I started reading. The case is four pages long and at 10:35 I finally finished. It was something like stirring concrete with my eyelashes. […] Briefing, I’m told, is important. All first-year students do it so they can organize the information in a case, and the various student guide books make it sound easy. But I have no idea of what a good brief looks like or even where to start. What in the hell are ‘the facts,’ for instance? The case goes on for a solid page giving all the details about how this woman, Olga Monge, was fired primarily because she would not go out on a date with her foreman. Obviously, I’m not supposed to include all of that, but I’m not sure what to pick, how abstract I’m supposed to be, and whether I should include items like her hourly wage. Is a brief supposed to sound casual or formal? Does it make any difference how a brief sounds? Should I include the reasoning of the judge who dissented, as well? Is this why students hate the case-study method? Excerpted from Scott Turow’s One L (1977: 30–31) Scott Turow’s (1977) memoir describing his first year as a student at Harvard Law School offers an inside look at a novice’s first steps into the 11

12

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

legal discourse community. His struggles with case reading and briefing, learning to balance concrete case facts with abstract legal principles and categories, and understanding the conventions of unfamiliar genres are also themes that arise repeatedly in the research surrounding differences between expert and novice lawyers in the development of legal literacy. The excerpt above highlights one of the greatest challenges facing a new law student: the development of discipline-specific knowledge.

Socialization into new textual communities The development of legal literacy occurs at the nexus of social and cognitive processes intertwined through practices of reading and writing. Language socialization studies in both the United States and France have provided insights into how classroom interactions and assignments foster specific types of legal literacy. Analyzing classroom interactions through which US law students begin to ‘think like lawyers,’ Mertz (2007) identifies how US law professors orient students toward particular ways of reading legal texts, specifically the cases that make up the majority of the first-year curriculum. Instructional dialogue as it is used in US law classrooms shifts students’ attention to procedural facts over narrative details, thus marking an important distinction between lay reading and legal reading. Through this dialogue, students ‘learn to interpret stories of conflict in legal terms’ (Mertz, 2000: 94). Developing expertise in legal case reading, seen through this perspective, involves the development of an analytical framework that will allow students to sift through the factual details of a case in order to extract legal categories. Mertz (2000: 99) argues that legal education pushes students to direct their attention toward textual and legal authority, casting aside issues of ‘right’ and ‘wrong,’ of emotion and empathy – the very feelings most likely to draw the hearts of lay readers as they encounter tales of human conflict. Instead, legal educators rigorously urge law students, as initiates into the legal system, to put aside such considerations – not to stifle them entirely, but push them to the margins of the discourse. Rather than reading with a semantic (or referentialist), content-focused approach, US law students learn to take a pragmatic, or context-oriented, approach to reading. This pragmatic orientation is primarily toward the identification of authority. Mertz describes this shift as a ‘rupture [of] linguistic norms’ (2000: 100) and a process of ‘linguistic re-ordering’ (2000: 100) in which students’ attention is directed toward ‘abstract categories, context, and actors provided by legal doctrine, procedures, and layers of authority’ (2000: 110). This is a dramatic shift in the orientation to reading for incoming law students.

Second L anguage Legal Literac y

13

Whereas Mertz’s broad-ranging study suggests that this orientation to reading legal texts is widespread throughout law schools in the United States, Biland and Israël (2011) demonstrate that the process of socialization into the L1 legal discourse community is not always uniform across a given national context. Examining two law programs associated with prestigious universities in France, L’école des hautes études commerciales (‘HEC’) and L’institut d’études politiques de Paris (‘Sciences Po’), the authors provide evidence of divergence in the ways that law students are socialized into the profession. Language socialization at Sciences Po aligns to a large extent with the way students learn in other academic contexts in France. Student assignments include commentaires de texte and dissertations, two formally structured essay styles common throughout the French educational system. Students are evaluated not just on the content of their writing, but also on their execution of classical elements of formal French rhetoric. At the same time, the study of law requires students to develop proficiency in reading new text types, such as the civil code. Students at Sciences Po are expected to bring a copy of the code to every class and to know it thoroughly. At HEC, by contrast, students are prepared for a more corporate legal environment, preparing PowerPoint presentations for fictitious clients. Reasoning is valued over mastery of the civil code, and students are expected to be able to define concepts in their own words, often using concrete examples. The use of client fact patterns is common at HEC, much as it is in the United States, although procedural history is much less important due to the more negligible role of precedent in civil law argumentation. The more traditional essay forms dominant at Sciences Po are absent at HEC. Lawyers graduating from each of these two schools will have very different perspectives on what constitutes legal literacy, despite the fact that they are both situated within the same legal system. For students from Sciences Po, many of the written genres used in class resemble familiar academic forms, and their reading of the civil code emphasizes the mastery of doctrinal concepts at the theoretical level rather than their application to specific legal problems. Students graduating from HEC, however, are likely to take a more pragmatic approach to legal texts. These differences are also linked to the goals pursued by students in each program: while students at Sciences Po often go on to take the bar exam, those at HEC are more likely to work as in-house legal counsel for a corporation.

Developing expertise in legal reasoning Research on legal reasoning suggests that this socialization process leads students to approach legal problems in very different ways as they progress from novices to experts during the course of their training and eventual career. Weinstein’s (1998) informal study on experienced versus inexperienced legal problem solvers provides some insight into this transition. In this study,

14

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

Weinstein gave participants a legal problem similar both to the hypothetical fact patterns that students respond to on US law school exams and to issues that professionals encounter in practice. This hypothetical problem dealt with a social security disability (SSD) claim, and the ten participants recruited for the study represented groups with varying expertise in this particular area and with the law overall. The expert group included three lawyers with significant professional experience with SSD claims. The ‘subexpert’ group comprised one law professor experienced in criminal law at the appellate and trial level, but who did not have any particular expertise with SSD claims. The novice group was made up of six law students, three of whom had participated in an SSD case simulation exercise and three of whom had actually represented a client in an SSD case in a clinical program. Analyzing the think-aloud protocols produced by individuals in each group as they responded to the problem, Weinstein observed differences between those who focused primarily on facts (‘fact solvers’) and those who focused primarily on legal arguments (‘law solvers’). Interestingly, he found no difference in the distribution of these two kinds of problem solvers across groups; there seemed to be no inherent advantage or disadvantage to approaching the problem in either way, as members of both the expert and novice groups used both methods. The experts were consistently successful using either of the approaches, whereas the novice group was unable to use either approach effectively. Instead, what differed most between experts and novices was their ability to combine the two approaches. Whereas the novices focused exclusively on either facts or law, the experts tended to fuse the two in their analysis. To illustrate this fusion, Weinstein states that the fact solver experts’ ‘use of facts reflected a strong conceptualization of the legal framework, including substantive bases of eligibility and proof issues’ (1998: 42). The law solver experts, however, talked about ‘governing legal principles and used them to construct arguments in which the factual record was taken as a given and the law was manipulated’ (1998: 43). As Weinstein describes it, ‘for the experienced solvers the two spaces [facts and law] are alternate expressions of the same information’ (1998: 47). Expert legal reasoning is thus marked by an ability to balance and integrate the concrete and abstract, while novice legal reasoning tends toward a separate focus on one extreme or the other. Whereas the experts were able to skim over the facts quickly and pick out only those that were most relevant to the legal issue at hand, the novices addressed each of the facts individually in the order that they were presented and analyzed the problem piece by piece in terms of ‘if … then’ constructions. The experts, on the other hand, seemed to apply a model to the facts as they looked at them. Although the subexpert and experts shared this ability to reduce the issue to a legal question and to skim the text for relevant facts to which it could be applied, the subexpert understood the issue differently

Second L anguage Legal Literac y

15

than the experts. Likely drawing on his experience in criminal litigation, the subexpert reframed the problem as a question of who would prevail in court as a matter of proof. This ultimately led to an inappropriate solution to the original problem, as it dealt with issues of eligibility for benefits from a government agency rather than litigation. Weinstein’s results suggest that while the novices still had not developed a strong framework for legal analysis in general, the challenge facing the subexpert was not the lack of such a framework but the transfer of an inappropriate schema to the problem in question. Most of the differences Weinstein mentions regarding the experts’ relative speed, ease, and effectiveness in solving the problem can be traced back to what he refers to as a ‘mental model’ of the problem developed through their experience. Because they already had both domain-specific knowledge and a structure for understanding the problem, they were able to concentrate on a smaller amount of information and to identify the missing pieces more quickly and accurately. These differences align well with the observations made in Mitchell (1989). In a less formal account, Mitchell describes the results of an exercise conducted at a law faculty workshop involving participants who would best be classified as experts and subexperts based on the categorizations above. In the workshop, law professors were divided into groups by area of specialization and asked to analyze a fact pattern similar to the one used by Weinstein (1998) (here, a criminal law problem). The criminal law experts started by representing the problem based on a set of broad, domain-specific principles. They easily identified patterns and were able to articulate long chains of argumentation. As Mitchell describes it, the experts worked as if they were ‘merely plug[ging] facts into the calculus’ (1989: 282). By contrast, the ‘subexpert’ professors, who specialized in other areas of the law, knew that they should look for broad policies, pro and con arguments and defenses, as well as match facts to legal elements. The problem was that they didn’t know where to start. In general, they tended to focus more on the concrete, surface features of the problem; reconstructed the problem in terms of their own area of specialization (like the subexpert in Weinstein (1998)); and even emphasized the overall fairness of the case rather than providing a legal analysis. As might be expected, their analysis was also slower and more haphazard than that of the expert group. As Mitchell (1989: 283) explains, the subexpert law professors knew what they should be doing but were faced with a number of pieces (facts, doctrine, policy) that they did not seem to be able to fit together easily so as to form a solution. They were not lacking in analytic ability; they simply did not know enough. One group of subexperts characterized their feeling at the beginning of the exercise as being in a state of ‘total panic’ (1989: 282).

16

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

Mitchell (1989) suggests how this exercise might shed light on the needs of novice law students. In particular, he argues that two types of students will have greatest difficulty with adapting to these new analytical frameworks: those with strong emotional investment in a previous schema and those ‘with a “knowledge base” from a social, political, and economic world that does not adequately provide the assumptions underlying the policies and argumentation in the various doctrinal areas’ (1989: 288).

Developing expertise in legal reading Perhaps the first empirical study on differences in legal reading between novices and experts is Lundeberg (1985, 1987). In this study, Lundeberg investigated how expert legal readers – two lawyers with two or more years of practice experience and eight law professors – differed from novice legal readers, none of whom had any legal training, but all of whom held at least a master’s degree in education, English, or another field unrelated to law. This choice of highly educated novice participants is significant, as it highlights the discipline-specific nature of the reading strategies identified in Lundeberg’s study rather than just the influence of general reading skills. Using a ‘peer tutoring paradigm’ (1987: 409) and think-aloud protocols, Lundeberg asked her participants, both experts and novices, to explain to her what they were doing as they read the legal cases she provided to them. She also told the readers in advance that they would be asked to identify the legal issue, rule, relevant facts and court’s rationale, much as a US law student would be expected to do for class. Lundeberg (1987) identified a set of strategies that were used consistently by expert legal readers but which the novices did not share. These expert strategies included: use of context (headings, parties, type of court, date, name of judge), overview (noting the length and decision, marking the action, summarizing facts), rereading analytically (identifying key terms, facts and the rule of the case), synthesis (merging the facts, issue, rule and rationale; generating hypotheticals) and evaluation (approval/disapproval, viewing jurisprudence as creative rather than objectively prescriptive). Although both the experts and novices marked their texts, the novices used a number of strategies that the experts did not. In addition to expressing confusion about legal terms and everyday words being used with legal meanings, they often used ineffective strategies such as ‘contextually defining words, adding incorrect information, and attempting to assign names to the plaintiff and defendant’ (1987: 415). Not surprisingly, the final item on this list reflects the narrative mode of lay reading that US law students learn to avoid over the course of law school (Mertz, 2007). Experts in Lundeberg (1987) also skipped to the end of the case to read the decision first, noted the structure of the case (e.g. looking for concurrences and dissents), and spent more time overviewing and putting the case

Second L anguage Legal Literac y

17

in context. To this end, the experts spent proportionally more time on the first page of case, reading it at a slower rate than the other pages, and then quickly reading the other pages, skipping over digressions made by the court in reporting its decision. The novices, by contrast, tended to spend an equal amount of time on each page, reading it from the beginning to the end in the canonical order. As would be expected, experts also demonstrated more background knowledge than novices in their familiarity with the text type and structure as well as recognizing judges’ names or understanding whether the case was from a federal or state court. Lundeberg’s results suggest that one is not simply a ‘good reader’ in all contexts; one must also learn to read in their particular discipline.

Developing expertise in legal writing Discipline-specific knowledge also plays an important role in legal writing development in both academic and practice-oriented legal genres. Comparing legal problem question answers written by law students and law professors in Hong Kong, Howe (1990) notes a few important differences between expert and novice academic legal writing. Although both groups used similar move structures to organize their answers, the students were ‘more than twice as likely to give details of a case than the professional writers’ (1990: 229). Howe argues that this shift represents an increased awareness of the shared knowledge that another expert legal reader would be expected to have, as well as a movement away from narrative details and toward more abstract legal concepts. Focusing on practice-oriented legal writing courses in the United States, Felsenburg and Graham (2010) set out to investigate why the first few weeks of legal writing courses are particularly difficult for students entering law school. In the article, the authors describe the results of two surveys: one sent to students a few weeks before beginning law school and another sent during the first weeks of class. The majority of questions on the first survey involved having students rank various writing skills in terms of perceived importance, discussing students’ perceptions of what law school writing would be like, and gauging students’ confidence in their writing abilities. The second survey was designed to assess how students’ confidence levels and perceptions of legal writing had changed over the first few weeks of law school. The authors’ primary findings were that incoming students had little understanding of professional legal contexts, that students’ confidence was undermined by the fact that they could not effectively transfer their writing skills from previous experience to law school, and that students ‘incorrectly assessed their strengths and weaknesses as writers when viewed through the lens of what good legal writers must be able to do’ (2010: 282). Incoming law students’ struggles with the simulated forms of professional discourse that they are expected to produce in legal writing courses

18

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

manifest themselves in various ways and can be traced to a number of factors. Comparing client letters written by first- and second-year law students to an expert model letter, Maclean (2010) observed differences in the way that the three groups incorporated various voices in their texts: the voice of the ‘interpreter’ of the law, the ‘practitioner’ voice and the ‘advisor’ voice. While the first-year law students gave equal weight to all three voices in their client letters, creating highly hypotactically complex sentences, the expert letter reduced the levels of hypotaxis by foregrounding the practitioner and advisor voices while backgrounding the interpreter voice. Whereas the novices were overly explicit in their interpretation of the law, the expert deemphasized the legal and contractual terms in favor of focusing on clients’ needs and actions to be taken. Maclean suggests that rather than simply demonstrating differences between expert and novice performance, the features in these letters may also reflect the complexity of the imagined audience for the writing task. Although students were taking on the role of practicing lawyers, they were writing for a professor in a classroom setting. Further, their professor’s instruction tended to emphasize legal interpretation over practical application. As such, the author argues that students’ use of overly complex hypotaxis ‘may derive not from a lack of skill but from difficulty in coming to terms with their positioning’ (2010: 192). The process of learning to ‘write like a lawyer’ in the classroom is neither a purely academic activity nor a truly professional one; it is a step in a process of socialization into the legal discourse community during which students must negotiate various voices to construct a textual identity (Kamler & Maclean, 1996; Rideout, 2009; Rideout & Ramsfield, 2010).

Combining Disciplinary and Cultural Specificity: Common Law Discourse and the Concept of Precedent Cultural specificity in legal argumentation Although the research cited above identifies some of the discipline-specific challenges that the study of law presents, it does not clearly address specificity related to local legal culture. Given national and even regional variations in the basic principles underlying various legal systems, disciplinary specificity in law implies an even greater need to take into account the role of local culture than in other areas of ESP. As Swales and Bhatia (1983: 99) point out, ‘legal English courses do not “travel well” from one country to another.’ The text types and literacy practices that are relevant in one legal system are often very different than those found in other systems, and this

Second L anguage Legal Literac y

19

is due in part to differing notions of what counts as a primary source of law. In civil law systems, for example, the major source of law is the civil code. In common law systems, by contrast, judicial decisions (also referred to as cases) serve as a major source of law. Reading these two types of texts calls for two very different approaches, and the way that these texts are integrated into a legal argument also differs, with the civil code serving as the basis for a deductive process of reasoning and case law forming the basis for a more inductive approach. Like many former British colonies, the United States draws on the common law tradition. The fundamental premise underlying this legal system is that ‘precedents set rules’ (Cappalli, 1997: 9). Through the doctrine of stare decisis (translated alternately as ‘the decision stands’ or ‘stand by the decision’), the decisions made by courts in interpreting the law become the legal standards by which subsequent cases in the area will be judged. As a result, legal reasoning in common law jurisdictions rests largely on the analysis of precedent cases. One way that this process of reasoning is represented in law schools in the United States is through the acronym ‘IRAC’ (Issue–Rule–Application– Conclusion). In this framework, lawyers first identify the key legal question, or issue, arising from their client’s facts and then identify the elements of the original rule of law (as found in the Constitution, statutes, or common law) and how it has been applied in precedent cases (sometimes referred to as the ‘processed rule’ (Wellford Slocum, 2011: 115)). Identifying the processed rule requires the writer to extract a general principle for ruling on the element identified in the original rule of law from a set of concrete, specific case facts referred to by the court in its decision and then to synthesize across related rules from other precedent cases. The processed rule is then applied to the client’s facts by making analogies and distinctions between these facts and the facts of precedent cases. Finally, a conclusion is provided to answer the initial issue and predict an outcome for the client.

From common law analysis to common law genres This common law framework informs everything from the structure of judicial opinions, to student responses to ‘hypos’ (hypothetical fact patterns used in US law school exams), to interoffice legal memoranda in legal writing courses. Taking the legal memorandum as an example, the influence of this framework for analysis is immediately apparent. The precise format of the memorandum may vary, but an example from one legal writing textbook (Wellford Slocum, 2011) offers a sense of the typical components and organization of this genre: I. Question Presented II. Short Answer III. Statement of Facts

20

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

IV. Discussion A. Overview paragraph B. Thesis Paragraph C. Rule Explanation D. Rule Application E. Conclusion Each section of the memorandum plays a role in instantiating the common law analytical framework described above. The issue is set out in the Question Presented, the rule is defined through the Overview, Thesis and Rule Explanation (RE) paragraphs and applied in the Rule Application (RA) paragraphs. Finally, the conclusion appears in two places, once in the Short Answer at the beginning of the memo, and again in the Conclusion paragraph, where it ties together the discussion section and provides recommendations with respect to the client’s case. The Statement of Facts describes the client’s problem with a focus on the facts that are most legally relevant given the issue and legal rule identified by the attorney drafting the memo. This last step provides the basis on which analogies between the client’s case and precedent cases will be built in the RA section.

International LL.M. Students and L2 Legal Literacy This combination of disciplinary and cultural specificity has the potential to create significant challenges for learners. Although L2 English speakers who are entering the field of law for the first time are likely to experience many of the same difficulties faced by L1 English speakers, the experience of L2 English speakers with prior training in law is more difficult to predict. To the extent that there may be universal principles that underlie legal reading and writing tasks across legal systems, such students may be at an advantage when compared with either of the first two types of students. At the same time, given the culturally specific nature of the legal literacy tasks described above, these students may have to address challenges related not so much to the transition from lay person to lawyer, but with moving from one set of assumptions about what the law is to another. As the literature above demonstrates, this has significant implications for ways of reading and writing legal discourse. One population that faces precisely this challenge is international Master of Laws, or LL.M., students. These students are a growing population who have received their first law degree, or equivalent, in another country and are pursuing further graduate studies abroad. Many of these students have additional professional experience working in local and international law firms, corporations, the government, the military and academia. In the United States, many LL.M. students come from civil law or religious law

Second L anguage Legal Literac y

21

jurisdictions, which differ significantly from the common law system both in their approach to legal analysis and in the sources of law on which they are based. To get a sense of the growth of this population in recent years, the number of lawyers who received their legal education outside of the United States and sat for the bar exam in the United States increased by 260% from the years 2000–2009 based on statistics from the National Council of Bar Examiners (Silver, 2013: 540). Likewise, although international law graduates made up only 2.2% of US bar examinees in 1996, they made up 7.1% of bar examinees by 2011 (Silver, 2013: 540). A report published by the American Bar Association (ABA) on the growth of non-J.D. programs, of which LL.M. programs make up a significant portion, showed a 39% increase from 2005– 2012 and a 52% increase from 2000–2012 overall (ABA legal education section reports preliminary data on non-J.D. enrollment growth, 2000–2012, 2012). Data from the 2016 Open Doors Report on International Educational Exchange similarly show an 8.3% increase in the number of international students enrolling in programs in ‘legal professions and studies’ in the United States from academic year 2014/2015 to academic year 2015/2016 (Institute for International Education, 2016). Research on legal genres is relatively well developed, whereas research on the learning of legal discourse in a second language is more limited. Although some research has begun to explore the learning of US law and language by international LL.M. students (Abbuhl, 2005, 2006; Bain Butler, 2015; Uhrig, 2012) as well as how instructors blend law and language instruction in these settings (Baffy, 2017), little is known about how LL.M.s transfer or negotiate their prior legal training in adapting to case reading and legal writing in a new legal system and language. This is problematic since the literature on the development of legal reasoning, reading and writing skills consistently underscores the importance of discipline-specific knowledge and conceptual frameworks for structuring understanding. At the same time, one of the fundamental questions raised in discussions of pedagogy for the development of legal literacy in English as a second language is where to locate the boundary between legal language and concepts. This is a question that is widely recognized as problematic in the literature on teaching English for Legal Purposes (ELP) and English for Specific Purposes (ESP) more generally (see, e.g. Bhatia, 2002; Bruce, 2002; Howe, 1993; Northcott, 2008; Swales & Bhatia, 1983).

Tensions between Language and Disciplinary Knowledge in ESP for Law Part of the challenge of ESP for law lies in the close connections between disciplinary concepts and the language used to express them. In a sense, the

22

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

law is language. This relationship raises the question of how much domainspecific knowledge a linguist can legitimately teach without overstepping disciplinary boundaries. For those who accept a purely structural view of language, the line between lawyers’ and linguists’ territory is easily drawn: linguists should teach syntax and perhaps some common collocations. Lexis that is specific to the legal domain may potentially be taught by a linguist in this model, but it is probably better learned through law courses. The basic formula underlying this model can be described as: general syntactic structures × domain-specific lexis = legal language In this model, legal language is separate and distinct from legal concepts and culture, which are both taught alongside language and serve as a superficial context for structuring tasks. As highlighted by Candlin et al. (2002) in their survey of legal writing textbooks, few of the textbooks adopting this perspective on language are actually predicated on a linguistic analysis of legal texts. Indeed, if legal language and legal concepts are conceived of as entirely separate entities, there would seem to be little need to do more than develop legal vocabulary lists to accompany standard exercises for practicing grammatical forms. One popular ELP textbook illustrating this model is American Legal English (Lee et al., 2007). The first part of the textbook is organized by thematic units on different areas of law (torts, criminal law, etc.) and each chapter begins with a selection of key vocabulary words, a description of legal concepts in the area, excerpts from cases or memos with reading comprehension questions, and listening comprehension exercises generally based on scripted court decisions or law firm interactions. The second part of the textbook is divided into sections on writing (audience, purpose, tone), reading (skimming and scanning), speaking (stress and intonation) and grammar. The grammar section is organized primarily by specific syntactic structures and begins with an overview chart listing a variety of possible combinations of tense and aspect in English and offering example sentences to illustrate (e.g. Present: ‘It is difficult to amend the US Constitution,’ Past continuous: ‘The judge was writing her decision when the prisoner escaped.’ (2007: 220)). This model represents a clear separation between legal concepts and legal language. The legal content is presented in such a way that a linguist would not need to know anything about law in order to use the textbook. Likewise, the textbook requires little knowledge of linguistics on the part of a lawyer. Although useful on a strategic course-staffing level, this separation may be problematic for the quality of instruction. Bhatia (2002) argues that disciplinary language should be thought of in terms of holistic activities that integrate various genres, tasks and text types. The structural model above attempts to bridge these genres, tasks and text types by relying on the most generic, widely applicable syntactic structures, assuming that focusing on

Second L anguage Legal Literac y

23

syntax that is common to all texts (legal and non-legal) will be the most useful for the widest range of learners. This ‘common core’ approach (Hyland, 2002) relies on breadth rather than depth, assuming that ‘knowing the basics’ will be enough to prepare students for any reading tasks as long as they are also provided with some legal lexis and topic background to help inform their reading and writing. One important problem with this model is that, to a large extent, students at this level already know the basics. Even if they may still have formal control issues (missing third-person singular ‘-s’ inflections on present tense verbs, for example), this does not come from a lack of knowledge of ‘the rules’ and generally does not inhibit reader or listener comprehension. Furthermore, many students at this level can self-correct when these errors are pointed out. These students usually have relatively advanced proficiency and their difficulties with syntax tend to stem from deeper problems related to internalized ‘rule of thumb’ grammar explanations such as those taught in the structural model above. At an advanced level, superficial grammar descriptions no longer suffice for getting students to the ‘right’ answer. When there is no single right answer, students’ awareness of the meaning potential of linguistic structures is an essential tool for allowing them to consciously construct their argumentation. An alternative model can address these issues by emphasizing depth rather than breadth. The alternative model would look more like this: linguistic concepts × legal concepts × legal culture = legal language In this model, the very fact that the language taught is not applicable to texts across all disciplines is where it derives its strength. Here, legal concepts and culture take on a fundamental role in shaping the surface features of language, with more general linguistic concepts mediating the expression of these concepts and cultural norms. This depth still affords a certain degree of breadth within the discipline, however, because the fundamental concepts relevant to one genre of legal discourse also underlie other legal genres. Understanding how legal concepts shape the linguistic features of legal texts can help lawyers better understand both the texts that they write as well as those they read.

Chapter Summary This chapter has argued that the development of legal literacy is a process that is both discipline-specific and tied to local legal cultures. It has presented evidence that legal reasoning, reading and writing are all shaped by discipline-specific norms, and that the use of language within legal genres can be further linked to culturally specific disciplinary frameworks

24

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

for argumentation. The chapter has also highlighted how international master of laws, or LL.M., students face unique challenges related to the interface between disciplinary and cultural specificity in the genre networks in which they are learning to read and write and suggested that this relationship has important implications for connecting language and disciplinary knowledge in ESP. In the next chapter, we will consider a proposal for addressing these connections in the classroom.

3

Linking Language and Concepts through Pedagogy

Concept-based Instruction: A Sociocultural Approach to Connecting Language and Disciplinary Meaning Given these connections between legal argumentation and legal language, explicit instruction that can tie together legal concepts and skills has the potential to enhance students’ development as legal readers and writers in a second language and legal system. Sociocultural theory (Lantolf & Thorne, 2006) provides a robust model for this in the form of concept-based instruction (CBI). This model is divided into two main strands, one referred to as systemic theoretical instruction and the other as developmental instruction (Lantolf & Poehner, 2014: xiii), or movement-from-the-abstract-to-theconcrete (van Compernolle, 2014: 19). Systemic theoretical instruction focuses on the internalization of a comprehensive conceptual model provided by the instructor. The procedure through which this is accomplished involves a series of instructional stages: motivation, orientation, materialization, overt speech, covert speech and full internalization (Negueruela, 2003). Developmental instruction, however, emphasizes the guided construction and application of conceptual models by students. Learners are initially presented with a flexible ‘germ-cell’ model of the focal concept, which is intended to ‘encompass the essence of the discipline’ (Ferreira, 2005: 60). Students then work with the instructor to refine this model as they apply it to a concrete problem situation. Although systemic theoretical instruction has been more widely applied in sociocultural theory, van Compernolle (2014) draws on aspects of both approaches in CBI focused on sociopragmatic awareness and indexicality in L2 French. This combined approach is grounded in three broad principles of CBI outlined in Lantolf and Thorne (2006). The first of these principles is that the basic unit of instruction should be concepts, or ‘systematic representations of objects of study that guide learners’ actions during concrete material activity’ (van Compernolle, 2014: 21). The other two principles focus on 25

26

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

learners’ internalization of these concepts, and include both the materialization of the concept through pedagogical diagrams (referred to as SCOBAs elsewhere in the literature) and verbalization, which may take the form of a learner’s explanation of the concept itself or the learner’s explanation of how his or her performance relates to the concept.

Identifying Concepts for Instruction: Disciplinary Specificity vs the Common Core While CBI has been applied to a number of areas in second language instruction (see, e.g. Negueruela, 2003; Swain et al., 2009; van Compernolle, 2014; Zhang & Lantolf, 2015), its application to ESP has been limited. Although a few concept-based interventions have incorporated a broad focus on genre (Ferreira & Lantolf, 2008; Herazo Rivera, 2014; Johnson, 2008), the genres chosen for instruction have not been discipline-specific. This is likely due in part to the teaching contexts for which these interventions were designed. In two of the studies, Ferreira and Lantolf (2008) and Johnson (2008), the learners were first-year undergraduate students from a broad range of academic majors and, in the other study (Herazo Rivera, 2014), the learners were sixth-grade students in a general public school setting. As a result, the concepts that were targeted in these studies were more aligned with what might be called a ‘common core’ (Hyland, 2002: 388) approach to genre. Ferreira (2005), for example, describes the main ‘abstract communicative principle’ addressed in her intervention as ‘LANGUAGE ↔ CONTEXT,’ or language influences context and context influences language. This broad principle was then linked to the concepts of field, tenor, and mode from Systemic Functional Linguistics and applied to specific examples of the genres of wedding invitations, obituaries, cover letters and argumentative texts.

Legal target concept: Stare decisis The intervention designed for the present study, by contrast, was developed for a discipline-specific legal writing course focused on the legal memorandum genre. All of the participants were international students enrolled in an LL.M. (Master of Laws) program at a US law school. In their assignments, students were asked to imagine that they were working as junior attorneys in a law firm in which a supervising attorney (a role played by the legal writing professor) had asked them to research a particular legal issue related to a specific client problem. The imagined context for this assignment was a common law jurisdiction and students were expected to focus the bulk of their research on identifying relevant case law, which they would then use to determine whether or not the client would likely prevail if the dispute went to court.

Link ing L anguage and Concept s through Pedagogy

27

As Hyland (2011: 11) points out, the rhetorical practices of a given discipline arise largely from ‘writers’ individual projections of a shared professional context as they seek to embed their writing in a particular social world that they reflect and conjure up through approved discourses.’ In the case of common law argumentation, many of the assumptions behind the literacy practices in this professional community arise from the notion of precedent, or stare decisis. Accordingly, Cappalli’s (1997: 9) formulation of the main concept underlying common law argumentation as ‘precedents set rules’ was used to describe the basic abstract relationship for the pedagogical intervention. The notion of precedent was chosen because of its role as a ‘threshold concept’ (Meyer & Land, 2006) for common law reasoning. Threshold concepts represent a key aspect of ‘how people “think” in a particular discipline, or how they perceive, apprehend, or experience particular phenomena within that discipline’ (Meyer & Land, 2006: 3). As such, they play a key role in defining the literacy practices within a profession.

Linguistic target concept: Mental spaces and blending Since the focus of the intervention was not on legal argumentation alone but on the expression of legal argumentation through language, a second focal concept was needed to connect the notion of precedent to the concrete linguistic features of these texts. Lantolf and Poehner (2014: 71) argue that cognitive linguistics is particularly well suited to the purposes of CBI, in part because cognitive linguistics ‘explains language patterns as motivated by meaning and that use is based on the way users construe events and states and how they subsequently wish to profile various aspects of events for interlocutors.’ Given the nature of legal argumentation, with its emphasis on alternate framings and interpretations of a given event or subject, cognitive linguistics is also particularly well suited to explaining linguistic choices in this discipline. In preliminary research leading up to the design of the pedagogical intervention, Hartig (2016) drew on the cognitive linguistic theory of conceptual blending (Fauconnier & Turner, 2002) to understand the use of language in the legal memorandum genre. Conceptual blending theory is based on the idea that speakers build various ‘mental spaces,’ or ‘small conceptual packets constructed as we think and talk, for purposes of local understanding and action’ (Fauconnier & Turner, 2002: 102). As conceptual blending represents a ‘basic mental operation, highly imaginative but crucial to even the simplest kinds of thought’ (Fauconnier & Turner, 2002: 18), it serves as a flexible framework within which to relate the fundamental common law concept of precedent to a broad range of linguistic concepts (such as tense, negation and hypernymy) that are used to blend elements across the various mental spaces needed to construct a common law argument. For example, we can think of a broad mental space of a lawyer interviewing a client about a legal problem. Within this space, there are multiple frames

28

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

each composed of constituent elements. This space can be framed from the client’s perspective as ‘telling a story about a problem’ or from the lawyer’s perspective as ‘compiling legally relevant facts.’ As the lawyer conducts research on the client’s problem, she will also begin to construct other spaces relevant to the client’s problem, such as ‘statutory definitions’ or ‘relevant precedent cases.’ As the lawyer writes her memorandum, she will need to link these various spaces to produce her analysis of the client problem. For example, in the rule statement that she writes to describe the legal principle derived from a precedent case, she will have to take into account not just the relevant facts of the precedent case, but also the legally significant facts from the client’s case, and the elements of the original rule of law. This process of combining selected elements of various spaces within a given frame is the essence of conceptual blending theory. As Coulson and Oakley (2005: 1512) describe it, conceptual blending is ‘the construction of blended cognitive models that include some structure from multiple input models, as well as emergent structure.’ In the genre of the legal memorandum, blending appears in various forms. For example, in defining the rule from a precedent case, the statement of the rule is often framed as a definition of a legal element from the original rule of law. At the same time, it blends facts from the precedent case that can be analogically mapped onto facts from the client case. This overall definition frame is expressed linguistically through the use of the present tense and the grammatical structuring of the sentence itself, which typically focuses the main subject and verb on the conditions under which a given legal element is or is not met. The precedent case facts are then integrated into this frame in such a way that they maintain what Fauconnier and Turner (2002) call a ‘generic space’ that would allow for analogy with the client’s facts. To illustrate, in People v. Huggins (1997), a precedent case addressing California’s grand theft person statute, the court found that the legal element of ‘taking from the person’ was met when the defendant took a purse that was partially touching a woman’s foot and partially touching the floor of the beauty salon where she was having a manicure. In this case, the court focused its analysis on whether or not the woman was ‘physically attached’ to the purse at the time of the taking and found that she was. In a related client case that students were addressing in their legal writing course, however, the issue revolved around whether or not the taking of a portfolio which was partially leaning on a man’s leg and partially leaning on the parking brake of his car also constituted ‘taking from the person’ under the statute. In constructing the rule statement describing the legal principle from the precedent case in this example, the writer would need to reflect its holding through a grammatically affirmative construction. If the sentence was phrased in the negative, a US legal reader would assume that the element had not been met in the precedent case, which would be inaccurate here.

Link ing L anguage and Concept s through Pedagogy

29

Furthermore, in order for the blend to work, the concrete precedent case facts integrated into the rule statement need to establish a ‘generic space,’ or a frame in which the spaces of the precedent case and the client case can overlap. To create this generic space, the lawyer needs to integrate the precedent case facts at a level of abstraction that will make it possible for her to make analogies or disanalogies with the client’s case. In the example above, a lawyer for the prosecution might use more abstract nouns to describe the role of the woman, referring to her as ‘a victim’ in her rule statement. Likewise, rather than referring specifically to the woman’s purse, the writer might refer to this as ‘property,’ thus allowing it to be more easily analogized to the portfolio of the victim in her own case. Similarly, rather than talking about the floor of the beauty salon directly, the lawyer could focus on the ‘partial physical attachment’ between the property, the body of the victim and another object. Creating a substantial generic space between the precedent and the defendant would allow the prosecuting attorney to more easily map similarities between the two input spaces of the precedent and her case, thus implicitly showing how the defendant should similarly be found guilty of grand theft person. In the same way, a lawyer for the defendant might want to highlight these facts in a way that would create less of a generic space between the defendant and the unfavorable precedent, possibly focusing on the intentional placement of the property in the precedent.

Challenges of disciplinary specificity An examination of LL.M. student texts suggests that some of the problems learners have in including required genre structures, using appropriate tense and modality, using more or less abstract categories, and other issues are related to the construction of mental spaces and blends. In a pilot study (Hartig, 2013), one student’s progression in writing rule statements from precedent cases was examined over the course of a semester. The first rule statement submitted by the student illustrates how these blends may be misunderstood: Under the California Penal Code section 487, subdivision 2, the conviction of grand theft may not be justified while the property being taken, instead of being attached to the victims, is just laid aside on the passenger seat next to the victim. This rule statement is based on the precedent case People v. Williams (1992) and addresses the same legal issue described in People v. Huggins (1997) above. Four spaces that are blended in the student’s rule statement here include a precedent case facts space, a precedent courtroom space, a future appellate court space and a current definition space. Focusing on the subject of ‘conviction’ and

30

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

its justification, the writer is essentially positioning himself as an appellate court judge rather than an attorney representing a client in an initial trial. Similarly, the use of ‘may’ indicates uncertainty in the application of the rule in a future court and thus seems to reflect a misunderstanding of the role of the Rule Statement. Since the Rule Statement is intended as an applicable rule derived from a standing decision, the future-oriented and uncertain nature of ‘may’ suggests that the writer does not understand this function of the Rule Statement in reporting rules derived from precedent. Although the writer generally uses an appropriate level of abstraction (‘property,’ ‘laid aside,’ ‘victim’), his reference to a ‘passenger seat’ focuses too narrowly on concrete facts of the precedent case that are not relevant to the legal distinction being made and does not adequately establish a generic space between the precedent and client. His construction of a blended space between this precedent case fact, the precedent case court, a future appellate court and a present definition would not meet the expectations of his target audience. This is not a problem with ‘common core’ grammar but rather with understanding the linguistic expectations and assumptions of the discipline.

Treading ‘on Lawyers’ Land’? Distinguishing Discourse-Structuring Concepts from DiscourseRelevant Concepts As the examples above illustrate, certain legal concepts play a unique role in shaping the use of the language within the discipline. For example, the legal concept of precedent plays an important role in the structure of judicial decisions and legal memoranda. The genre features of these texts, such as the inclusion of a holding and rationale in a case or the need to show analogies to precedent cases in a typical memo, are shaped by the role of precedent as a fundamental principle of the US legal system. The concept of precedent is not something that is typically mentioned directly in the text itself, but it instead serves to structure the discourse used in the text. Because lawyers and judges understand the role of precedent in the common law system, they are able to signal its role through the structure of the text rather than through overt statements regarding the application of precedent in a given case. Thus, concepts such as precedent represent what we will refer to as ‘discoursestructuring concepts.’ This is quite different from concepts such as strict liability in tort law, which, although relevant to discourse in their respective areas, play a different role in the text. When we think of a typical list of legal vocabulary, we encounter further examples of these types of concepts. Although these concepts are relevant to the discourse, they do not, in themselves, play the same kind of implicit structuring role as the concept of precedent above. Unlike

Link ing L anguage and Concept s through Pedagogy

31

discourse-structuring concepts, these legal concepts appear overtly in the text and are not assumed to be implied by the structure of the text itself. Indeed, if the writer were to omit them, it would be difficult to intuit the argument being made. We will thus refer to such concepts as ‘discourse-relevant concepts.’ In the case of discourse-relevant concepts, it is wise to heed Howe’s (1993: 152) caution against straying into ‘lawyers’ land.’ With discoursestructuring concepts, however, the boundaries between lawyers’ and linguists’ land are less clear. Ignoring such concepts could lead an ESP instructor to make inappropriate language recommendations since these concepts strongly influence the linguistic choices available to a writer within the discipline and may differ significantly from norms common in other kinds of academic writing (Hartig, 2016). As such, discourse-structuring concepts are a useful focal point for connecting linguistic and legal meaning in ESP.

An Approach to Linking Language and Disciplinary Knowledge in Concept-based Pedagogy for Law Classroom instruction The main pedagogical intervention for this study was implemented in a legal writing course designed for international LL.M. students, the majority of whom had learned English as adults. The course was taught primarily by a legal writing professor, and the pedagogical intervention described below was implemented by the researcher as a series of guest lectures ranging between 45 to 75 minutes each over the course of six regularly scheduled class sessions throughout the term. The researcher and another colleague from the Department of Applied Linguistics both served as language specialists for the course, and our main work consisted of individual meetings with students to help them revise their legal writing assignments. Students who were identified as needing significant language support were required to attend these meetings on a weekly basis. In addition, four J.D. students serving as teaching assistants (law TAs) provided written feedback on students’ legal argumentation and citation format throughout the term and met with students by appointment as needed. The pedagogical intervention was based on the discourse-structuring common law concept ‘precedents set rules’ (Cappalli, 1997: 9). This concept served as the basic abstract relation at the center of a series of units of instruction drawing on mental spaces and conceptual blending theory (Fauconnier, 1994; Fauconnier & Turner, 2002). Individual CBI units were designed to correspond with weekly reading and writing tasks in the legal writing course. Each of these units focused on a specific section of the interoffice legal memorandum genre as described in students’ textbook (see Chapter 2 for an overview of the legal memorandum genre).

32

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

The concept models designed for the intervention were based on the approach from developmental instruction, using a flexible ‘germ-cell’ model that was further elaborated throughout the term. Individual lessons followed the ‘stepwise procedure’ favored in systemic theoretical instruction in order to help students internalize this model. In each CBI session, the motivation and orientation stages were achieved through the contextualization and presentation of the concept at the beginning of the class. Materialization and overt speech were addressed through classroom tasks involving the application of the focal concepts to a series of discourse analysis activities. Each of these tasks was completed in pairs or groups of three students in order to push students to verbalize their understanding of the concepts as they attempted to apply them. Evidence of internalization (or lack thereof) was sought in the students’ texts and their explanations of their texts in both individual meetings and in-class pair work. The mental spaces concept (referred to only as ‘spaces’ in class) was introduced to students in Week 4 through the imagined process of writing a response to a client problem. Students were first presented with an image of a lawyer interviewing a client. In this image, the client’s speech was framed as the ‘client story,’ whereas the lawyer’s thoughts were presented in terms of a ‘client case’ and a relevant set of legal definitions, or rules, that might apply to the client’s case. The next image followed the lawyer as she conducted further research into these legal definitions, connecting the client case to precedent cases. Finally, the last image in this series showed her drafting a memorandum, in which she needed to integrate practical office concerns (such as mentioning issues that were being addressed by other associates) and the likely outcome for the client in the courtroom if he or she were to proceed with litigation. Following this visual, narrative-based exposition of the focal spaces addressed in the legal memorandum, students were presented with a schematized version of this information (Figure 3.1). Each space was presented as a circle and associated with a specific color (red for the client space, green for

Figure 3.1 Spaces in the memo

Link ing L anguage and Concept s through Pedagogy

33

the definition space, purple for precedent case space, orange for the office space and blue for the courtroom space). This slide was incorporated into the following CBI sessions throughout the semester in order to reinforce and provide consistency in the presentation of the mental spaces concept. The basic abstract relation, ‘Precedents set rules’ (Cappalli, 1997), was then presented, and the class discussed how this concept and the general common law framework for analysis, IRAC, related to the structure of the memo as a whole. In the first CBI session (CBI 1), students were then asked to make connections between the mental spaces concept and the basic abstract relation by thinking about the rule explanation (RE) paragraph specifically. With their partners, students discussed the following four questions in small groups: (1) What is the function of the rule explanation paragraph? (2) What ‘spaces’ does a writer need to think about when writing a rule explanation? (3) What is the role of each part of the RE paragraph? (i.e., rule statement, case facts, holding, rationale) (4) How does this relate to the principle ‘Precedents set rules’? The class then discussed these questions as a group. Finally, students were presented with additional information on the form and function of rule statements, the first sentence of the rule explanation, and asked to evaluate a series of rule statements excerpted from assignments submitted by the class earlier that week. From the following week onward, students were presented with ‘nested circles’ models to illustrate how the mental spaces we had talked about initially were blended in each section of the legal memorandum. This nested circles model was adapted from the diagrams used by Fauconnier and Turner (2002) and others in the application of conceptual blending theory to discourse analysis, but differs from Fauconnier and Turner’s (2002) diagrams in significant ways. As Tyler (2012) and Lantolf and Poehner (2014) point out, theoretically oriented diagrams of cognitive linguistic phenomena are not always well suited to the classroom. While Fauconnier and Turner’s (2002) models analytically break down specific instantiations of conceptual blending, the nested circles model used here was designed to provide students with a conceptual overview of a typical emergent blend in the rule statement and, later, in other parts of the memo. In this way, it represented each section of the memo in terms of its broad generic features rather than emphasizing particular characteristics of specific exemplars of this genre. For example, in looking at the rule statement in the second CBI session (CBI 2), we discussed it as having a primary function as a definition space: that it served to define what the element was or was not. This was indicated in the original slide by placing a green ‘definition space’ circle around the circles representing two other spaces, the ‘precedent case space’ and the

34

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

‘client case space.’ A larger, purple ‘precedent case space’ circle and smaller, red ‘client case space’ circle indicated that the precedent case was to be the primary source for the definition provided in the rule statement, but that the writer also needed to think about whether or not the definition was phrased broadly enough that it could be applied to the client case (Figure 3.2; the original colors have been rendered here in grayscale). We then discussed how these functions related to the use of tense and abstract or concrete nouns. Once students were familiar with the blending model as applied to the rule statement, similar models were presented to indicate how blending operates in the moves within each section of the genre. For example, in illustrating the rule explanation (RE) paragraph as a whole, a diagram (Figure 3.3) was presented to synthesize the spaces identified by the class during the previous session. As with the rule statement model, the relative size of each space reflected its relative importance or salience. The shift from the definition space as the framing input in the rule statement to the precedent case space as the framing input in the case facts, holding and rationale spaces was discussed with students, and this shift was linked to both the use of tense

Figure 3.2 Blended spaces in the rule statement

Figure 3.3 Blending in each section of the rule explanation

Link ing L anguage and Concept s through Pedagogy

35

and the kinds of information that needed to be included in each section. In each of the CBI lessons that followed, students were presented with similar nested circles models and asked to apply their understanding of the models to discourse analysis tasks involving either student or expert samples of the targeted genre sections for that week.

Individual meetings The second dimension of the pedagogical intervention comes from individual meetings with participants using principles of interactionist dynamic assessment (Lantolf & Thorne, 2006). These sessions were designed to gradually move students from more abstract notions of common law analysis and genre function at the beginning of each major assignment to more concrete sentence- and word-level revisions toward the end of each assignment, paralleling the approach of movement from the abstract to the concrete favored in developmental instruction (Ferreira, 2005). These sessions were conducted on a weekly basis over the course of the fall semester starting from Week 3 or 4, depending on participants’ initial availability, and continuing through Week 13. Each week, participants were asked to review their most recent writing assignment before coming to our meeting and to proofread and revise as necessary. This helped us to avoid working on problems that students were already able to solve independently (see Aljaafreh & Lantolf, 1994). Our meetings generally began with students’ own questions, their explanations of their revisions, or with my own review of their revised work. While the primary focus of these sessions was students’ writing, we also addressed students’ reading comprehension and reading practices as necessary. These individual meetings are described in greater detail in the individual case studies in Part Two. With the exception of the meetings in Week 3, which were only audio recorded, each individual meeting was both audio and video recorded.

Division of labor between law faculty and language specialists Despite the intended division of labor among the legal writing professors, language specialists and law TAs, there was some overlap among our roles in practice. First of all, the pedagogical intervention designed for the study was created with the intention of connecting students’ language use to fundamental common law concepts. In addition, for those students who had been recommended for weekly meetings, language specialists were the primary point of contact. As a result, we frequently received questions on everything from defining elements versus factors, to identifying key terms for conducting legal research, to explaining the hierarchy of authority within the third circuit of the federal court system. We generally refrained from answering these unless we were sure that we had understood the course content well enough to answer them correctly. Having assisted with (and attended) the

36

Par t 1: L anguage, Literac y and Disc iplinar y Knowledge

same course and having worked with students on the same client problems during the two years prior to this semester, I was frequently able to answer these questions. Even when the other language specialist and I felt confident enough with the course material to provide answers, we usually included the caveat that the student should confirm this response with a law TA or legal writing professor. As will become clearer in the individual case studies described later, however, it would have been impossible to address many of the language problems in student writing without first addressing the problems of meaning that these questions presented. Likewise, in addressing the expectations for writing in the US legal community, both the legal writing professors and law TAs frequently needed to discuss law-related language issues. The textbook itself was organized around presenting basic genre structures, and the legal writing professors often pointed out typical signaling phrases (e.g. ‘The court reasoned that,’ ‘The court held that’) and legal vocabulary. In addition, the legal writing professors also addressed the Plain English writing conventions associated with Richard Wydick’s (2005) Plain English for Lawyers and widely included in legal writing handbooks in the United States.

Chapter Summary This chapter has introduced one model for linking disciplinary language and concepts in the ESP classroom. In addition to a brief overview of CBI, the chapter has described how the focal disciplinary concept of precedent and the cognitive linguistic concept of conceptual blending were selected and presented through a series of pedagogical diagrams and discourse analysis activities. A distinction between discourse-relevant concepts and discourse-structuring concepts was further elaborated and the relevance of this distinction for the selection of focal disciplinary concepts in ESP was discussed. Finally, the chapter concluded with a description of the roles of the various members of the instructional team for the course, including how these roles overlapped at times. The next section of the book will explore how four focal participants responded to this pedagogical intervention over the course of the term.

Part 2 Case Studies

Introduction to the Case Studies Case study methodology Tracking the development of the complex interconnections described in the previous chapters requires a fine-grained methodological approach capable of taking into account a wide range of influences on each participant’s development over time. Cheng (2008: 52) argues that, in order to understand the complex processes through which students develop genre awareness and discipline-specific writing skills, ‘more investigations, especially case studies that allow for the extensive display of data, seem necessary.’ The use of case studies is also in keeping with the study’s basis in a Vygotskyan sociocultural theoretical framework. Vygotsky argued for a method of research focused on the intertwined processes of learning and development ‘in flight’ (1978: 68), critiquing research that focused only on the end product of learning. As he asserts, ‘the early sessions during which a reaction is formed are of crucial concern because only data from this period will reveal the reaction’s true origin and its link to other processes’ (Vygotsky, 1978: 69). He goes on to explain that such a study must examine the psychological process under consideration in its initial stages and as it takes shape, as well as its final form. He further underscores this point, arguing that ‘the complex reaction must be studied as a living process, not as an object’ (Vygotsky, 1978: 69). Equally important in sociocultural theory, as Lantolf and Thorne (2006) highlight, is the study of the particular. Discussing the intellectual autobiography of A.R. Luria, a scholar who worked closely with Vygotsky, Lantolf and Thorne (2006: 55) explain the need to explore the richness and complexity of specific individual experiences, pointing out that ‘[g]enuine scientific observation, according to Luria, has the goal of viewing phenomena from a variety of perspectives in which the researcher comes to see how the object or event relates to other objects or events.’ The authors further link this to Vygotsky’s contention that ‘most important is the study of these connections and relations as whole formations and processes or structures that must 37

38

Par t 2: Case Studies

be understood specifically as wholes that determine the role and significance of the parts’ (Vygotsky, 1997: 31). The kind of study proposed here is one that cannot be captured through only one aspect of a learner’s performance, but must encompass a broad and multifaceted exploration of the learner’s engagement with the conceptual tools introduced in the pedagogical intervention as well as other influences that mediate the learner’s engagement with these tools. Case study is particularly well suited for such an investigation. As van Lier (2005: 195) points out, the strength of case study is in its attention to context and its ability to investigate ‘changes in complex phenomena over time.’ Looking at such changes through the lens of activity theory, Lantolf and Pavlenko (2001) suggest six areas of investigation: • • • • • •

the individual him or herself; the individual’s actions; the mediating artifacts or other people through which and with whom the individual is acting; the location where the action takes place; the individual’s motives and goals; the moment in the individual’s trajectory at which the action takes place.

This perspective takes into account not just a surface description of what the individual does or produces, but attempts to understand the significance the activity has for the individual. This approach also reveals how behaviors that might look the same on the surface can have very different origins. In this way, it also addresses the need articulated in Kinginger (2008) for integrating both processes and products, as well as cognitive and social aspects of learning, in the study of language development. Drawing on Firth and Wagner (2007), Kinginger argues that one characteristic shortcoming in much of the literature on language learning is that ‘interpretive, processoriented, or descriptive accounts exist in a separate realm from research targeting the learning products emerging from students’ experiences’ (Kinginger, 2008: 14).

Data sources and participants The four case studies that follow address this concern by examining a number of data sources. These sources include every draft of every written assignment produced by the participants over the course of the semester, audio recordings of in-class pair work among students, video recordings of individual meetings between the researcher and focal participants, initial and exit questionnaires, observation of class sessions and field notes. Out of the 61 students enrolled in the LL.M. program overall, 40 agreed to participate in the study. Of these 40 students, I met with 17 on a weekly basis

Par t 2: Case Studies

39

either because they had been identified as needing additional language support by a member of the instructional team or because they had self-identified as needing extra help. Over the course of the semester, I slowly narrowed my focus to four participants from this group. Since the literature suggests that there would be differences in the way that lawyers trained in different legal systems would approach the reading and writing of legal texts (see Chapter 2), I decided to compare students trained in two different legal systems, in this case China, a civil law country and Saudi Arabia, a system grounded in Islamic law. Given that the literature also suggests that there would be differences related to prior professional experience in law, I selected one participant with work experience in law and one participant without professional experience in this field from each national group.

Data analysis The case studies that follow focus on the developmental trajectory of each individual focal participant across the semester. This trajectory is not assumed to be a steady, continuous path toward improved performance, however. A Vygotskyan perspective recognizes that development is both evolutionary and revolutionary, often marked by leaps forward as well as backsliding as the individual struggles to appropriate new conceptual tools and restructure her activity. This is a key distinction between a Piagetian framework and a Vygotskyan perspective. As Vygotsky (1978) puts it, To the naive mind, revolution and evolution seem incompatible and historic development continues only so long as it follows a straight line. Where upheavals occur, where the historical fabric is ruptured, the naive mind sees only catastrophe, gaps, and discontinuity. […] Scientific thought, on the contrary, sees revolution and evolution as two forms of development that are mutually related and mutually presuppose each other. (Vygotsky, 1978: 73) It is precisely these upheavals that are of greatest interest from a Vygotskyan perspective, and explaining their genesis is a key aspect of a cultural-historical account of development. The absence of such upheavals is also of interest, as it is equally important to understand what factors inhibit development. In order to trace participants’ response to the intervention, it was critical to understand both where they began as well as the path of their activity across the semester. Participants’ initial understanding of and orientation to the legal memorandum genre was understood through their first assignments, particularly their rule explanation (RE) and rule application (RA) paragraphs, before the concept-based intervention was introduced in Week 4. In addition, the questionnaire that students completed in Week 2 offered more context for analyzing students’ initial understanding, as it provided some insight into

40

Par t 2: Case Studies

their professional and language learning histories. As the semester progressed, students’ weekly writing assignments and individual meetings continued to offer evidence of the quality of their understanding. These data sources were further triangulated by the examination of students’ in-class interactions with their peers in activities focused on applying the focal concepts. Students’ responses to the exit questionnaires offered another source of evidence of their response to the intervention at the end of the course. Yet another means of gauging students’ progress over the semester came in the form of the grades they received from their legal writing professors on their memos. Data were analyzed using an a priori content analysis focused on identifying which parts of the legal memorandum genre were most difficult for each participant, based on their writing and transcripts. Analysis focused primarily on rule statements, RE paragraphs and RA paragraphs. These sections of the genre were selected as foci of analysis because of their unique link to common law argumentation and thus their potential for demonstrating the kinds of conceptual links between law and language that the pedagogical intervention was designed to address. Once problematic genre features were identified for each participant, all data sources were reexamined to identify all instances in which these features, or essential concepts to which they were related, were addressed either directly or tangentially. In addition, ethnographic information gathered from field notes and recorded off-task talk was consulted in order to better understand the larger context in which the participant was acting. Changes in learners’ ability to both understand published judicial opinions and communicate their analysis through the genre of the legal memorandum were the primary source of evidence for development. In other words, development was defined as ‘qualitative transformations’ (Vygotsky, 1978: 73) in the way that participants were able to either perceive or communicate meaning and was ‘not limited to completed development, but includes the revolutionary process of gaining control over intrapersonal functioning’ (van Compernolle, 2015: 21, emphasis in original). This was distinguished from learning, which was understood as ‘the quantitative accumulation of content knowledge and/or discrete skills on the part of the learner’ (van Compernolle, 2015: 21), which could enable further development but did not constitute it on its own. The context in which the pedagogical intervention was conducted was highly normative. Assignments were designed to reflect a monolingual, culturally homogeneous US legal practice context and the professional roles in which students were asked to imagine themselves positioned them as entrylevel professionals reporting to a supervisor in a strict hierarchical relationship. The parameters of these assignments allowed little room for hybridity or negotiation of genre norms. As a result, the interpretation of learners’ development within this context needs to acknowledge that there were few sanctioned areas for learners to express their agency within the bounds of the

Par t 2: Case Studies

41

course beyond their development of original arguments relating to the specific client problem and case law designated for each assignment. As a result, the analysis in the case study chapters that follow references these norms in evaluating learners’ relative success with understanding and using the target genres. In Part 3 of the book, however, we will consider how these parameters may have negatively impacted participants’ development.

4

Hong: Legal Concepts Mediating Language Use

The first focal participant on whom analysis will focus is Hong, a recent law graduate from China. Although Hong struggled with the legal writing course at the beginning of the semester, scoring in the 15th percentile of her class on Memo I (score = 67.5, mean = 77.1, max = 104.5, min = 34, SD = 14.9, n = 23), she was able to improve significantly over the course of the term, scoring in the 30th percentile of her class on Memo II (score = 84, mean = 87.3, max = 97, min = 71, SD = 6.3, n = 23). The chapter begins with an exploration of Hong’s language-learning and professional background prior to entering the program. Before looking at Hong’s data from the semester of the study, the focal genre features, rule statements and rule explanations, are described and the rationale for choosing these specific features is explained. Next, Hong’s first written assignments, submitted before the intervention, are analyzed along with data from her first individual meeting and the first in-class CBI session. These data shed light on her initial understanding of the focal genre features and her understanding of common law argumentation more broadly, highlighting how her prior training in civil law shifted her attention away from precedent cases and toward statutes. In the sections that follow, we explore Hong’s developmental trajectory in writing rule statements and rule explanations across the semester, focusing on her understanding of the genre as evidenced in her written texts and her verbal explanations. This section shows how Hong moved from interpreting common law through the lens of her prior civil law training, attempting to make case law fit into her prior analytical framework by searching for statutes even when there were none, to eventually being able to derive a rule from precedent cases.

Professional, Academic and Language Learning Background Hong was selected in part because she came from China, a civil law country and the top country of origin for international students in the US (Institute 42

Hong : Legal Concept s Mediat ing L anguage Use

43

of International Education, 2014). She was also selected as a focal participant because she had no professional legal experience after her first law degree. She was a relatively young member of her cohort and came to the LL.M. program directly from law school in her home country. She had studied law for a total of five years there, four years in an undergraduate law school and one year in a graduate law school. Her year in the LL.M. program in the US served as an exchange program, and she planned to finish her Chinese master’s degree in law upon returning to her home country. She had no professional experience, though she had already passed the bar exam in China. In her initial questionnaire, Hong stated that she was most familiar with the areas of contracts, torts, and commercial and corporate law in the Chinese civil law system. Hong identified as a native speaker of Chinese and an intermediate speaker of English, though her standardized test scores were high enough to allow her to enter the LL.M. program directly in the fall without taking the additional preparatory language coursework that was required for many students.

‘So This is Like the Same. That’s What I Understand.’ Applying Civil Law Concepts to Common Law Genres Throughout the semester, evidence from Hong’s writing, in-class work and individual meetings suggested that the rule explanation paragraph, and the rule statement in particular, was a challenging part of the legal memorandum genre for her. As it was described in the textbook used in this course, a rule explanation paragraph (also referred to as a ‘case illustration’ or ‘case explanation’ in other texts) summarizes a legally relevant precedent case in terms of a processed rule (a rule arising from case law) that will be applied to the client’s case. The basic structure of the rule explanation paragraph outlined in the textbook is as follows: (I) (II) (III) (IV)

Rule statement Case facts Holding Rationale

The rule statement is much like a typical thesis or topic sentence, although it also has a genre-specific function of summarizing the processed rule from the case being described. To do this, it typically follows a number of conventions. First, it expresses the court’s holding on an element in terms of the factors or standards relevant to its decision in a given case. A negative holding on the element is reflected by a negative sentence (e.g. ‘Taking from the person is not fulfilled when …’) and an affirmative holding is reflected by an affirmative sentence (e.g. ‘Taking from the person occurs when …’). Both the element at issue and the factors or standards identified by the court in

44

Par t 2: Case Studies

the case are explicitly mentioned in the rule statement. This sentence should also include relevant facts or categories of facts that can later be analogized to the client’s facts in the RA paragraphs later in the memo. Finally, the rule statement may or may not include a reference to the original rule of law, such as a statute. In a rule explanation paragraph, the rule statement is followed by a discussion of the legally significant case facts that were essential to the court’s decision on the element. These facts are the basis from which the factors mentioned in the rule statement are derived. The court’s holding is then given and, in a final section, the court’s rationale is explained by making reference to the key facts and their relationship to the factors or standards under consideration in deciding on the element. The rationale section is one of the most important parts of the rule explanation as it serves as the foundation for the processed rule on which the rule statement is based.

Pre-Memo I: Written data At the beginning of the semester, Hong seemed to understand the rule statement as a paraphrase of a statute rather than a processed rule from case law. All of the Pre-Memo I assignments related to a legal problem that did, in fact, involve a statute, specifically California Penal Code § 487(c), though case analysis was still intended to be a major focus of the assignment. The text of this section of the statute, which establishes the elements for a grand theft person conviction, is as follows: ‘Grand theft is theft committed in any of the following cases: […] c) When the property is taken from the person of another’ (Cal. Penal Code § 487). In Hong’s first rule explanation (RE) on People v. Williams (1992) in Week 2, her rule statement followed the statute quite closely: ‘Grand theft is not committed when property is not taken directly from the victim’ (Hong, Williams RE1, Wk.2, 8/25). On a structural level, her rule statement looked good at first. It was correctly written in the present tense, was phrased as a general principle, and accurately reflected the negative holding of the Williams case. Functionally, however, this rule statement told the reader little about the legal element of ‘taking from the person’ or the relevant factors for establishing when this element is met. While her law TA’s feedback on this first rule statement suggested that she add more detail, particularly regarding attachment, her revised RE for the Williams case, submitted the following week, simply added a reference to the statute: ‘Under the California Penal Code Section 487, grand theft is not committed when property is not taken directly from the victim’ (Hong, Williams RE2, Wk.3, 9/4, emphasis added). While her next rule statement, on People v. Huggins (1997), seemed to begin incorporating legally relevant factors (specifically whether the property is ‘upon, attached, held or carried by the victim’), it also included overly specific reference to a purse, suggesting a narrative summary rather than a legal principle.

Hong : Legal Concept s Mediat ing L anguage Use

45

Pre-Memo I: Individual meeting 1 Hong’s first individual meeting served partially as a diagnostic to determine what she already understood about the US legal memorandum genre based on her readings from the textbook and the main lectures from the legal writing course. It also served as a way of determining how many of her grammatical errors she could correct on her own or with minimal intervention. During our discussion of her first assignments, she mentioned a few times that when she was writing her first rule explanations she didn’t ‘know what the rule explanation means.’ In our meeting, we focused on her second RE on Williams, which she had not had a chance to revise before our meeting. At the beginning of our meeting, I was more concerned about the limited discussion of the court’s rationale at the end of her RE paragraph than I was with her rule statement. After pointing out the parts of the paragraph that she had correctly included (rule statement, case facts and holding), I mentioned that the rationale section would typically be the largest section of the rule explanation paragraph, and that the single sentence she had written for this section was not long enough. Week 4, Hong, IM1, 9/11 [00:07:02.17] 1

And then rationale. Now, usually, in a rule explanation (.) the biggest part would probably 2 be the rationale. Usually we’d expect to see two to three sentences at least. 3 Hong: Well, ah, I just- you know, we come from civil law court system (.) uh, we don’t have 4 rationale- well, in my- ‘cause in my opinion the rationale is like a- just like a thing that- uh I-I’m 5 not sure if I understand this mistake ‘cause uh I think the rationale is just when judges write them 6 down and to let other judges see what could be applied (.) in the future (.) Is that right? 7 AH: Kind of, yeah. Um, so, what’s the role of case law in the common law system, based on your 8 understanding? 9 Hong: Uh, based on my understanding, case law is just- uh- the judge uh he look at facts and uh 10 the jury put a judgment or something and the judge give some reason of of-what- of the case and 11 then, so the rationale- Is rationale about the reasons? 12 AH: Yeah, it’s the reasons. Uh-huh. 13 Hong: So reasons is- rationale is not what we can see or what we can apply in the future or or14 AH: Well, what about stare decisis? AH:

[00:08:47.12] Although our meeting began with a very basic overview of the length expectations of a specific genre move, it quickly shifted into a deeper discussion of the fundamental principles of common law analysis. It later became clear that Hong had received similar comments from her law TA regarding the length of her rationale section, but she did not understand why this was

46

Par t 2: Case Studies

a problem. She immediately related her omission of the court’s rationale to her prior legal training in a civil law jurisdiction (line 3), and evaluated the feedback she had received both from me and from the law TA based on this prior experience. I referred to the doctrine of stare decisis (‘the decision stands’ or ‘stand by the decision’) during this exchange because this principle explains precisely why the court’s rationale is ‘what we can apply in the future’ (lines 13–14). Although she had undoubtedly heard this term multiple times throughout the mandatory, two-week Introduction to the US Legal System course as well as in the first four weeks of the legal writing course, she seemed not to recognize the term when I mentioned it to her. When I then checked to see if she understood the related term ‘binding,’ however, she was readily able to provide a correct definition. Although Hong had effectively learned the definitions of the terms ‘binding’ and ‘rationale,’ she saw no connection between these terms and the way she needed to explain the Williams case in Pre-Memo I. Even though the rationale from the Williams case was in fact binding on her client’s case, Hong regarded the court’s rationale as ‘not […] what we can apply in the future’ (line 13). Although she could define these terms, they were not linked to a deeper conceptual understanding of their meaning within the common law system in which she was framing her argument. They did not yet serve as tools for mediating her analysis or memo writing, but instead remained distinct from her conceptual framework for analysis, standing out as discretely known facts rather than internalized concepts. Given this apparent gap in Hong’s understanding, I decided to revisit her rule statement to see whether she had in fact been trying to incorporate the court’s rationale or had simply been paraphrasing the original statute: Week 4, Hong, IM1, 9/11 [00:11:00.05] 1 AH: What’s the function of the rule statement? 2 Hong: Give-give the statutes, or yeah. Just give the statutes, or gives, gi- what we- like, ah you 3 know, like in the civil law, well, first we use a statute. And we, like, apply the facts into this 4 statute and we make a conclusion. So, so this is like the same. That’s what I understand.

[00:11:37.14] During this exchange, it was unclear at first whether Hong couldn’t find the right words to explain that a rule statement is based on a common law rule derived from case law, or whether she actually saw the function of the rule statement as just to ‘give the statutes’ (line 2). She again drew on her previous civil law training (line 3), explaining that, in that system, a lawyer would give the statute, apply the statute to the client’s facts, and then make

Hong : Legal Concept s Mediat ing L anguage Use

47

a conclusion. She then paralleled this to the rule explanation paragraph, stating that it was ‘the same’ (line 4). At this point in the semester, Hong’s understanding of the rule explanation seemed to have been that it illustrates how a statute has been applied in a previous case. This is not necessarily incorrect, but Hong’s focus on the original rule rather than the processed rule was problematic. Rather than explaining an emergent processed rule arising from the court’s rationale at the end of the precedent case, Hong’s rule statement explained the original rule of law that the precedent court had to consult before making its decision.

Pre-Memo I: CBI 1 Although the examination of Hong’s rule statement in our first individual meeting led to an extended discussion about the need for her to incorporate the court’s rationale and relevant factors into this sentence, her apparent understanding did not transfer to the next day’s CBI session. In this first CBI session, students were asked to identify the strengths and weaknesses of a number of anonymous student rule statements. Hong’s rule statement was included among these samples, though it was not identified as hers. In Hong’s work with her partner, Yoshiro, she did not identify any of the problems we had discussed the day before, and instead declared that the rule statement was ‘perfect,’ while not explicitly acknowledging that it was her own. Week 4, Hong and Yoshiro, CBI1, 9/12 [00:34:40.01] 1

Yoshiro: ((still working on previous rule statement)) It’s uh important= 2 Hong: =Oh, I think this one’s 3 perfect. The third one is perfect. ((reading)) ‘Grand theft is not committed when property is not’4 Yoshiro: ((reading)) ‘is not committed when property is (.) not taken di-’ 5 Hong: ‘Cause I- I remember that’s just the student’s example that uh on the slides. But uh, we 6 need to find something to improve. I think this one is= 7 Yoshiro: =((reading)) ‘The property is not taken 8 directly from the victim’ is not- um (.) It’s ambiguous. Not clear. 9 Hong: Okay. Ambiguous (…) Ye[ah. Am]biguous. Need to= 10 Yoshiro: [Unclear] =Good points, it’s uh= 11 Hong: =So, it’s not 12 too short, it’s not too long, so it’s uh-

[00:35:42.02]

48

Par t 2: Case Studies

Not only did Hong refer to her rule statement as ‘perfect’ (line 3) but she also claimed that it was the example used on the professor’s slides (line 5). Her rule statement was not used in either my slides or those of the legal writing professor, so this may have been Hong’s way of trying to minimize any critique of her writing by her partner. Following this excerpt, she also initiated a shift to the next sample as soon as she had understood Yoshiro’s positive comment on her rule statement (that it was ‘concise’). At this point in the semester, she did not appear to have been ready to accept negative feedback on her work. Even in our individual meeting the day before, after reviewing all of the detailed comments her law TA had given her on her assignments over the first four weeks of class, her overall conclusion was that ‘they think that uh that’s in the good track, but I think my biggest problem is I think I should like uh trying to make my words more like native speakers’ (Hong, IM 1, Wk.4, 9/11).

Continued Challenges: Case Reading and Secondary Sources in Memo I Hong’s next two rule statements in Week 5, following our first meeting and the first in-class concept-based intervention, seemed to represent two extremes in understanding the rule statement. These two rule statements marked the beginning of her work on Memo I, which dealt with the tort of ‘false light invasion of privacy,’ for which the elements to be addressed were ‘highly offensiveness’ and ‘falsity.’ In this pair of rule statements for the two cases she found in her research assignment at the beginning of Week 5 (9/16), she suddenly abandoned the basic sentence structure she had been using throughout Pre-Memo I. In the Pre-Memo I assignment, she had used the cause of action (there, ‘grand theft person’) as the subject of the sentence, a verb indicating the court’s ultimate holding, and finally an adverbial clause beginning with ‘when’ in order to indicate the specific facts or factors the court relied on in making its decision. In her Week 5 rule statements, however, she used a very different form for each of the two cases, both of which were copied and pasted directly from the text of their respective cases. For her rule statement on Rush v. Philadelphia Newspapers (1999), which she did not ultimately use in her analysis but identified as being related to the element of falsity, she copied and pasted the following text: Several articles critical of a borough solicitor’s performance as solicitor did not support a cause of action under false light-invasion of privacy as the publications, although containing statements which might be viewed as annoying or embarrassing, were not highly offensive to a reasonable person. (Hong, Case Chart, Rush, 9/16; Rush v. Philadelphia Newspapers, 1999: 654)

Hong : Legal Concept s Mediat ing L anguage Use

49

Although some paraphrasing would be preferred over copying and pasting alone, there are instances in which the processed rule from a case is stated by the court in such a way that it could be used as a rule statement. This sentence from Rush, however, is phrased more as a summary of case facts than as a general rule, as it focuses on highly specific facts marked by concrete nouns such as ‘articles’ and ‘borough solicitor’ and is phrased in the past tense. An even more critical problem with this sentence, however, is that it refers to an entirely different case, Neish v. Beaver Newspapers, Inc. (1990), which was mentioned by the court in Rush in a brief parenthetical reference and addresses a completely different legal issue: highly offensiveness. Hong’s use of this sentence as a rule statement on falsity reflects a misunderstanding of both the Rush case and the part-genre of the rule statement. What is striking, then, is that Hong’s second rule statement in this same assignment, on Larsen v. Philadelphia Newspapers (1988), would appear to suggest both an acute awareness of the rule statement genre and a good understanding of the Larsen case itself. This is particularly significant given that Larsen was perhaps the most difficult case students read all semester, and certainly more difficult than Rush. Hong’s accurate identification of this sentence from the key rationale buried within the 12 pages of the printed decision, and further recognition that the court’s language here perfectly fit the conventions of the rule statement genre, would suggest that she had a good understanding of both the case and the genre. The rule statement she copied from the case was: ‘The element of falsity is met if someone knowingly or recklessly selectively printed or broadcast true statements or pictures in a manner which created a false impression’ (Hong, Case Chart, Larsen, 9/16; Larsen v. Phila. Newspapers, Inc., 1988: 82-83). It foregrounds the definition of the element of falsity by placing this noun phrase as the subject of the sentence, uses a present tense verb that reflects the court’s holding, and incorporates key factors from the court’s rationale through a conditional structure introduced by ‘if.’ It is unlikely that Hong identified this rule statement from Larsen herself, however. In our Week 5 individual meeting (9/18), two days after she submitted her assignment, she had difficulty summarizing even basic information about the Larsen case. Week 5, Hong, IM2, 9/18 [00:06:28.13] 1 2 3 4 5 6

Well, ok, so tell me about- let’s-let’s go through as if you were telling me- through the case chart. So what was the holding? Hong: Holding is this. ((points to middle of main paragraph of headnotes preceding case text)) AH: Okay, so can you summarize? Hong: Ah ‘kay. Oh, I just @don’t @remember. AH: It’s okay. Okay, you can take a look at it again. That’s fine. AH:

50

Par t 2: Case Studies

7

Hong: Okay ((reads)) ‘no private cause of action’ (…) mmm (…) ‘and a rule of confidentiality governing (…) Review board proceeding’- uh does that mean that uh like uh invasion of privacy like um exist for #breach statute of Pennsylvania- uh like Pennsylvania has like a Pennsylvania Constitution, so that’s the statute ((underlines phrase in case)), is that right? AH: Okay, so it looks like they’re looking at three different things. Hong: Yeah- oh I uh uh just said the first one and uh second one ((reads)) ‘judge’s … that news media def- published … exc- of- Jud- Re- Proceedings … which cast … false light … sufficient … false light … state a claim … false light invasion of privacy.’ Um, so that means uh … ((reads)) ‘allegations that news media … d- … published … which cast him in false light were sufficient to state a claim for “false light invasion of privacy”.’ Mm I think that means- uh that means- uh … I’m sorry. I just copied this one= AH: = Okay, okay, alright, alright, okay Hong: I don’t know what that means.

8 9 10 11 12 13 14 15 16 17 18 19

[00:08:45.21] At this point, Hong was focusing exclusively on the headnotes of the case. The headnotes are a summary provided by the publisher, such as Westlaw or LexisNexis, and do not count as law. Given her difficulty with even this section, I decided to see how much of the headnotes she had understood and whether she was able to relate these headnotes to the rest of the case. With support, Hong was able to correctly identify the focal issue that related to her client’s case as well as state the court’s holding on this issue. When I then began to push her away from the headnotes, toward the actual text of the case, however, she started to have more difficulty. Week 5, Hong, IM2, 9/18 [00:09:45.01] 1 2 3 4 5 6 7 8

So, then, the main issue we know then was falsity, so where do they talk about the issue of falsity in the case? Hong: Mm, well, mm. They just uh- (.) they just like uh published excep- like excerpts- it’s collectively published. ((indicates headnote summary she has just read)) AH: Mm-hmm Hong: ((looks up at AH)) AH: Okay. So what about in the actual case? Because remember that this part doesn’t count as law, this part just counts as a summary. So it’s good for understanding, but it won’t actually be AH:

Hong : Legal Concept s Mediat ing L anguage Use

51

9

something that you can use in your memo. So where in the actual case does it talk about their an10 the court’s analysis of falsity? 11 Hong: Uh (…) ((turns page)) I don’t think I really uh understand this case.

[00:10:40.23] Despite two more attempts to help Hong find the court’s rationale on the element of falsity in the main text of the case and recommending that she skim the case to look for where the court mentioned falsity, Hong was unwilling to continue and eventually shifted the topic to the other case she had found, Rush. As she flipped through her copy of the Larsen case, there was no underlining, highlighting or notes on any but the first page of the 12-page printout. Hong’s apparent unfamiliarity with the Larsen case was particularly striking given that her first rule statement on this case would have been one of the best examples of a rule statement that she had used in her writing all semester. That she felt more confident with Rush, the case for which she hadn’t even identified the right legal issue, was equally paradoxical. The stark contrast between these two rule statements, submitted the same week, suggested that rather than representing a step forward in Hong’s understanding of the genre, the Larsen rule statement here was likely either borrowed from one of her study group members or based on a lucky guess. An interesting point about the first excerpt from the individual meeting in which we discussed these rule statements is Hong’s attempt to identify a statute. In this particular client problem, there was no statute. Memo I was the first purely common law problem of the course. As soon as she saw a reference to something that looked like a statute (here, the Pennsylvania State Constitution), Hong assumed that this must be the relevant law for the problem (‘does that mean that uh like uh invasion of privacy like um exist for #breach statute of Pennsylvania- uh like Pennsylvania has like a Pennsylvania Constitution, so that’s the statute, is that right?’ (Hong, IM 2, Wk.5, 9/18)). This paralleled her Week 1 case brief assignment on Williams, in which, under the heading ‘Original rule of law,’ she had listed every statute mentioned even tangentially in the entire case, including the California rules of court for certifying the court’s opinion for publication and statutes relating to robbery and petty theft. Hong clearly oriented to statutes in her reading of cases, even when these were irrelevant to the primary legal issue. When Hong was unable to identify a statute for the Memo I client problem, she found the next best thing for her rule statement: The Restatement (Second) of Torts. The Restatement is a secondary source and is not binding on courts in itself. While it summarizes general principles behind particular torts and can be adopted by the court in its decision, as it was in Larsen, the

52

Par t 2: Case Studies

Restatement is not a source of law on its own. In Week 6, Hong appeared to rely on the Restatement as if it were a statute, using a summary that was likely copied from such a legal treatise as her rule statement: Under restatement second, torts section 652: To establish a prima facie case in an action for false light invasion of privacy, the plaintiff must prove that the defendant made a representation that (1) was false; (2) would be highly offensive to a reasonable person; (3) was made with knowledge of its falsity or with reckless disregard as to its truth or falsity; (4) was publicized. (Hong, Larsen RE1, Wk.6, 9/23) Although her previous rule statement for Larsen would have been nearly perfect, her revision provided no information whatsoever about the Larsen case and incorrectly identified the Restatement as the original rule of law by introducing it with ‘under’ (line 1). Although the court in Larsen relied on the Restatement for identifying the elements of the tort listed in each of the points above, this rule statement gave no information about the factors the court used to evaluate these elements. Rather than focusing on falsity, the rule statement above lists all of the elements of the tort, not specifying which element is at issue in Larsen. Now that Hong had finally read the case more carefully, she revised her rule statement to reflect her understanding of its function, i.e. to ‘give the statutes.’ At this point in the semester, she still did not seem to recognize the importance of foregrounding case law in her rule statements.

Shifting Orientation from Statutes to Rationale Our Week 6 individual meeting revealed that Hong was beginning to see this gap. While our discussion in the Week 5 individual meeting suggested that her superficially accurate rule statement on Larsen that week did not clearly represent her understanding, our Week 6 individual meeting suggested that her understanding was starting to improve beyond what was reflected in her written assignment for the week. Week 6, Hong, IM3, 9/25 [00:02:08.06] 1 2 3 4 5

Hong: For today, I just- I have one question because I think if we- if we write elements - yeah? right, elements- we need to like uh make the factor um like uh make any factor points the element, is that right? AH: Mm-hm= Hong: = yeah but in this case, um the whole facts- the whole facts is- um ‘caus-’cause um

Hong : Legal Concept s Mediat ing L anguage Use 6 7 8 9 10 11 12 13 14 15 16 17

53

we want to find the falsity ((writes falsity at top of page three in her Larsen case printout)), yeah? We want to find the falsity. But the whole facts is like- uh uh it’s like- it’s- it’s not that clear to find the- to extract the clear points of the factor, ‘cause it’s like- uh it’s just like- I read this from this book ((points to legal writing textbook)) AH: Yeah Hong: Yeah, so that’s the whole thing. It’s- it’s just like everything is going- is talk about everything going beyond the process, so it’s like #timely, but we don’t know- I don’t know how to extract the-the factor and I saw that this- on this part it-it like talk about the false light is #purpose selective publication, yeah? But (.) um I-I don’t see- I don’t see things from the facts that is selective publication but- and I can’t made up it. AH: Ye[ah Hong: [So so what can I do for a case like this?

[00:03:51.10] Hong was clearly frustrated by the Larsen case. Although her Week 6 rule statement did not focus on falsity or mention the factor of selective publication, her concerns in our dialogue above show that she understood that these were important. Later, as we went through the case together, it turned out that she had not realized that there was a summary of the case facts specifically related to the client’s issue toward the end of the case. Had she realized this, she might in fact have been able to identify the relevant factors that she needed to include in her rule statement. Her Week 6 rule statement may not just represent a reliance on something that looks like a statute, but may instead have been a placeholder that she had included because she was not yet able to understand the relevant factors from the case even though she knew they were important. In order to draw her attention back to this rule statement later in the meeting, I asked her to tell me what the structure of a rule explanation paragraph is. She answered that ‘It’s like a um first you give a statute, or like a give the-give the law explanation- give the- what law it is.’ Since this again sounded like she might be understanding the rule statement as synonymous with giving a statute, I then asked how she understood the function of the rule statement specifically. Week 6, Hong, IM3, 9/25 [00:22:02.25] 1 2 3 4

Right, but- but what’s the function of a rule statement, actually? Hong: It give you a point that’s what the- what the law like, [(.) what’s the law say AH: [Okay, so the law from where? From wh-which law? AH:

54 5 6 7

Par t 2: Case Studies Hong: Common law stat-uh statute? AH: Depends. So here again we don’t have a statute, [and again Hong: [Yeah, so we have common law case law

[00:22:22.13] Hong seemed to be creating a syncretic understanding of what the law means in the common law system. At first she identified the rule statement as giving the law from a ‘common law statute,’ and then, after I pointed out that there was no statute in this case, she changed her answer to ‘common law case law.’ She now seemed to be beginning to recognize that cases are a source of law in the common law system, even though she was still focusing more on statutes.

Crossing the Threshold: Recognizing Precedent as a Discourse-Structuring Concept This individual meeting marked the beginning of a change in Hong’s trajectory. Hong’s struggle in our Week 6 meeting appeared to be the ‘rich point’ (Agar, 1996) that fueled this change. Her understanding of the rule statement from the rule explanation on Larsen that she revised after our Week 6 meeting transferred to her Week 7 assignment on a new case, Santillo v. Reedel (1993): ‘Under restatement second, torts section 652, the defendant release the information which was not false do not constitute a false light invasion of privacy’ (Hong, Santillo RE1, Wk.7, 9/30). Although this rule statement has some of the same weaknesses as her previous (9/25) rule statement, it also shares its strengths and builds on them. Here, although she focused more on whether or not the information released was actually false than on the question of what does or does not constitute ‘selective publication,’ Hong had clearly made an attempt to incorporate factors from the Santillo case rather than simply paraphrasing the Restatement. Hong also shifted toward more generic nouns, referring to the ‘defendant’ rather than specifically identifying the subject as she had in her previous (9/25) rule statement (there, ‘the newspaper’). This seemed to underscore her understanding that the rule must be more broadly applicable. She also used the present tense for the main verb of the sentence, which, although it focused on whether or not the entire tort was constituted rather than the element of falsity specifically, framed the sentence as a generally applicable principle. While the predicate of her previous (9/25) rule statement, in which she included the factors, was still basically cut and pasted from the text of the original case, this (9/30) rule statement provided evidence of an increased ability to paraphrase. Our Week 7 individual meeting provided further evidence of the struggles associated with Hong’s shift in understanding. In this meeting, Hong

Hong : Legal Concept s Mediat ing L anguage Use

55

experienced a key moment of frustration that served as another ‘rich point’ in her development, pushing her to question some of the assumptions she had been working with until that point in the semester. In this session, we focused on her Week 7 rule statement: ‘Under restatement second, torts section 652, the defendant release the information which was not false do not constitute a false light invasion of privacy’ (Hong, Santillo RE1, Wk.7, 9/30). Again, I decided to focus Hong’s attention on the function of the rule statement first before talking about the format. This question was met with a frustration that had been absent from her previous responses: Week 7, Hong, IM4, 10/2 [00:12:21.16] 1

AH:

2 3 4 5

Hong: AH: Hong:

6 7 8

AH: Hong:

9 10 11 12 13 14

AH: Hong: AH: Hong: AH: Hong:

So again- so what are you trying to do in a rule statement? What-what’s the purpose of a rule statement? ((sighs)) Oh like explain the rules Okay, so what does that [mean [So give-give-give the rule. ‘Cause the last time you told me, but II’m not sure I understand it correctly Okay It’s uh- you said that the-the rule must focus on-on the specific case. Mm-hmm But (.) um just like use- use this case to explain falsity Yeah Is that right? Yeah And uh I just- ((looks back at her paper, re-reads sentence))

[00:13:05.22] During this exchange, Hong was clearly tired of answering the same question over and over again each week. For the first time, however, she seemed to realize that her answer to this question might not be sufficient after all. When she began to paraphrase what I had told her in previous weeks, her explanation of the function of the rule statement was accurate. Still, Hong appeared to be lost about how to proceed. Following this segment, she began by suggesting a minor, and unnecessary, change in wording, at which point I stopped her and explained the ways in which her rule statement successfully conformed to the expectations of the genre. I then suggested that she rephrase her rule statement to change its emphasis. This led to an extended co-construction sequence in which we took parts of her original rule statement and reframed them to more accurately reflect its intended function.

56

Par t 2: Case Studies

Week 7, Hong, IM4, 10/2 [00:14:21.07] AH:

Hong: AH: Hong: AH:

Hong: AH:

Hong: AH: Hong: AH: Hong: AH: Hong: AH:

Hong: AH: Hong: AH: Hong: AH: Hong: AH: Hong: AH: Hong:

so, maybe another way to state it in order to kind of emphasize that you’re trying to show what falsity is based on this case= =What falsity is so= =Maybe start with= =selectively provideduh selectively re-released uh information Mm-hmm. And then- and then I think then we need to make sure that it follows still this negative holding, so you wanna say= =Okay so add ‘selectively release’ do you think= =Well, again, I think again if I see a sentence starting with ‘the defendant,’ it sounds like you’re talking about only this specific case. It sounds like you’re telling me what happened in this specific case before. But a rule statement is doing more than that. It’s not just telling me what happened here, it’s saying, ‘What’s the principle that I can now apply to other cases? What is falsity, based on this case?’ So maybe instead of starting with the defendant, maybe you could consider starting with something like ‘falsity.’ ((AH and Hong each write sentence frame on their own papers as AH speaks)) ‘Falsity occurs when-’ or ‘does not occur’ because we have a negative holding, ‘does not occur when’ or ‘the element of falsity is not met when-’ So that’s kind of the defining function of the rule statement. It’s trying to define what falsity is from that case. Okay It’s not just kind of- It’s not really summarizing, but it’s telling what is falsity. Okay, mm-hmm so uh, use this: ‘The element of falsity is not met’- ‘is not met when’ ‘when’ wha- the situation like uh … Mm-hmm, and so you’ve got ‘the defendant’ ‘the defendant selectively releases information which was not false’ Mm-hmm ‘do not constitute a false light invasion of privacy.’ Do you think that’s right? I think that’s closer, that’s getting closer. Now, you said ‘selectively release-’ ‘when the defendant selectively releases information’ Uh, should I need to give- specify uh information, what the information? Well, what do you think? Why would you and why wouldn’t you? I think I wouldn’t Okay, and why? ‘Cause uh the- which information is not-is not important here Yeah, exactly. Exactly. ‘Cause we wanna be able to apply it to both our client’s e-mail broadcast Yeah And the Santillo case Okay Published personnel file information Okay

Hong : Legal Concept s Mediat ing L anguage Use AH:

Hong: AH:

Hong: AH: Hong: AH: Hong:

57

Mm-hmm. So, so you mentioned selectively- ‘when the defendant selectively releases’ ((points to Hong’s original RS)) so we know that the element of falsity is not met when- and you could say ‘defendant.’ ((AH adds ‘the defendant’ to sentence frame)) Now, did the defendant in Santillo selectively release information? Um I don’t think so. Right, so you wanna make sure that the rule statement reflects accurately what happened, so I would probably say ((AH writes)) ‘does notYeah ‘selectivelyOkay ‘release.’ ‘Does not-’ Could you give me this paper?

[00:17:21.20] In this session, Hong still needed me to help structure her revision process, but she was able to provide much of the content of the revisions themselves. Here, Hong was able to take a much more active role in revising her text than she had in earlier sessions.

Connecting Legal Concepts to Genre Structures In the next day’s in-class CBI session (CBI 4, Wk.7), this understanding finally seemed to transfer. Throughout the session, which included an exercise on editing rule statements as well as other key sentences taken from other students’ assignments, Hong took a much more active role in evaluating the samples that were provided for the activity than she had in previous CBI sessions. While in CBI 1 in Week 4, her critiques of the student sample rule statements had focused primarily on surface features such as length (‘It’s too long,’ ‘It’s not too short, not too long’) or vague references to stylistic issues (‘need to extract the point’), her critiques of student sample rule statements in CBI 4 in Week 7 focused on more substantive issues of connections between legal meaning and linguistic form, including using negative grammar to reflect a negative holding, framing the rule statement as a definition rather than reported speech, and identifying specific unnecessary details or missing information. The CBI 4 session in Week 7 offers some of the most striking evidence of Hong’s conceptual shift as it played out in activity. In the following excerpt from her dialogue with Yong-Ik, a Korean classmate, they discussed the fourth rule statement on their handout: ‘In Larsen the court said that “the element of falsity is met if the plaintiff alleges that the defendant knowingly or recklessly selectively printed or broadcast true statements or pictures in a manner which *83 [sic] created a false impression”’ (Wk.7, CBI 4, Handout: ‘Evaluating Key Sentences’). After initially being unsure about what needed to be revised in this rule statement, Hong drew their attention back to this

58

Par t 2: Case Studies

sentence after they had moved on and completed the next part of the exercise. She began by re-reading the fourth rule statement on the handout and then suggested that the problem with this sentence did not have to do as much with its content as with its framing. Week 7, Hong and Yong-Ik, CBI4, 10/3 [00:23:31.10] 1

As I think, the key sentence- you should say that- not start from ‘The court said.’ I just 2 think when you put a key sentence at the beginning, you don’t like uh just say ‘The court said 3 what what what,’ you should say- ‘cause- ‘cause what you should apply in the RE paragraph is 4 um like uh what’s the false light is, uh what the falsity is, so ‘The element of falsity is met when 5 blablablablablablabla’ 6 Yong-Ik: ‘When’? 7 Hong: Yeah, the- I think I should use the sentence that ‘Falsity is met- is met when-’ uh ‘Falsity 8 is met’ yeah ‘Falsity is met if the plaintiff alleges that-’ just uh omit this part ‘In Larsen, the 9 court said’ what the element- or or in Larsen the court said. I think that part should be omit. 10 Yong-Ik: Omit? 11 Hong: Yeah. This should be delete. So, ‘the element of falsity is met.’ This sentence is like a 12 key sentence. We don’t need to say what the court said when we-when we-when we are writing 13 this paragraph. Hong:

[00:26:01.27] What is most striking in this excerpt is Hong’s confidence. In the three CBI sessions prior to this, she had often let her partners take the lead, either waiting for them to answer first, agreeing immediately with the answers they provided, or only tentatively questioning their responses. In this session, however, she directed the flow of the activity with her partner, returning to a previous question, and argued for her interpretation. In another exchange with her partner during this same Week 7 CBI session, she directly contradicted him after he had offered a response for the fifth sentence, saying ‘Um uh I have a different opinion, ‘cause I think use a negative sentence, that’s right.’ Since the holding in the case for which they were evaluating the rule statement was negative, Hong’s evaluation of this sentence was correct. When her partner argued with her on this point, she further defended her answer, justifying it by saying that the rule statement came from the Santillo case, which had a negative holding, not Larsen, which had a positive holding. While her partner did not appear to be completely convinced at the end of her exchange, Hong was so sure of herself that she

Hong : Legal Concept s Mediat ing L anguage Use

59

offered her response to the whole class even when another student had suggested that the negative phrasing of the sentence was problematic. This was also the first time in the semester that she volunteered to answer a question posed to the entire class during CBI. In the excerpt above, Hong was also able to provide accurate, concrete reasons for preferring this structure over the original when working with her partner (CBI 4, Wk.7). This contrasts sharply with CBI 1 in Week 4, in which she justified her responses to her partner by making reference to authority rather than explanations based on meaning (i.e. ‘well this question I’ve asked Alissa yesterday’ and ‘Cause yesterday Alissa told me’). Even more importantly, her interpretation was correct. She accurately identified that the problem with this sentence was not its content or grammar errors but with the use of reported speech and the placement of ‘the court’ in the primary subject position. Hong now recognized that the focus of a rule statement must be on the element, here ‘falsity,’ and that using the element as the subject of the sentence was a more effective way of doing this. Hong took up this ‘element is met when’ structure in every other rule statement throughout the rest of the semester, though she did not foreground it at first. In her first pair of rule statements for Memo II (Wk.10, 10/21), which dealt with a new client problem on a federal statute, the Anticybersquatting Consumer Protection Act (1999), or ACPA, she again placed ‘the defendant’ in the primary subject position, shifting the phrase regarding when the element is met to the end of the sentence. Her feedback from her law TA instructed her to rephrase this sentence to make it sound more like a rule statement. Again, I started by trying to shift Hong’s focus to the intended meaning of the rule statement first. Week 10, Hong, IM7, 10/23 [00:01:34.05] 1

AH:

2 3 4

Hong: AH: Hong:

5 6 7 8 9 10

AH: Hong: AH: Hong: AH:

11 12 Hong: 13 AH: 14

So again- so what’s the purpose of a rule statement, first of all? Um, give you what the rule it is? Mm-hmm And uh like to express that and then you can make some key facts- factors according to that rule Mm-hmm And uh to let the people know what the rule is Mm-hmm Yeah Right. And so I see that you-you mention specifically the bad faith element, which is exactly right Yeah I would probably bring this up a little bit earlier, so that we know that the rule statement is supposed to be defining what constitutes bad faith or when does somebody have bad faith intent

60

Par t 2: Case Studies

15 16 17 18 Hong: 19 AH: 20 21 22 Hong: 23 AH: 24 Hong: 25 26 AH: 27 Hong: 28 AH: 29 Hong: 30 31 32 AH: 33 Hong: 34 35 AH: 36 Hong: 37 AH:

to profit or something like that because right now ((shifts to paper)), the way I see it is ‘The defendant registered numbers of domain names’ - it sounds more like a summary of what happened. ((nods)) yeah It doesn’t sound as much like defining what bad faith intent to profit is or how it’s met. Um, so just rephrasing, I think when he says rephrasing, I think that’s the kind of thing he means, so here it sounds more like a summary for an essay Yeah -of you know this is what happened. But just changing it around so it focuses on= =what um what means the element of bad faith. Yeah, something like that, yeah, either um= =Um in this case that means like uh um profits Mm-hm So it’s just like changing to uh- I will like uh ((takes paper to write)) uh like to say ‘Under blablabla’ uh ‘what constitutes the bad faith’ uh ‘is’ (.) ‘the defendant’ uh okay ‘registeregistered numbers of domain names’ so like put this in front Mm-hmm Wha- uh what constitute bad faith- ‘cause make people more focus on bad faith, the element actually to talk? Mm-hmm Okay I think that’ll be good.

[00:03:34.11] Unlike the co-construction sequence in our individual meeting in Week 7, in which I took the lead in re-framing her rule statement, Hong was the leader in this sequence. Once I had oriented her attention to the nature of the problem her law TA had pointed out, Hong was able to make the necessary corrections on her own. During this sequence, my primary role was to push her to verbalize her understanding and to confirm what she had gotten right. At this point, she needed little mediation from me in order to meet the expectations of this part of the genre. From Week 11 onward, Hong not only included the element, but foregrounded it in her rule statement. She accurately used negation and affirmation of the main verb of the sentence to indicate the holding of the case, and she incorporated case-specific factors into the predicate of the sentence using nouns that were abstract enough to apply to both the precedent and the client case and specific enough to provide new insight into the rule. In addition, she consistently placed the main verb of the rule statement in the present tense, highlighting its role as a legal principle. In spite of Hong’s progress over the course of the term, there was some evidence that her understanding of case law and statutory law may still have

Hong : Legal Concept s Mediat ing L anguage Use

61

been blended at the end of the semester. Although she used the present tense for the main verb in each of her rule statements, she used the past tense in the dependent clauses describing the relevant case facts that were incorporated into the rule. On its own, this may suggest difficulty with tense shifts or a cobbling together of disconnected phrasal chunks. Taking Frawley and Lantolf’s (1985: 19) perspective, however, that ‘all verbal forms in discourse […] are both revelatory and relevant’ allows us to consider instead how Hong’s use of language sheds light on her understanding. In her phrasing of the rule statement, particularly in her final draft of Memo II (11/19), Hong seemed to be grappling with a tension between general legal principles and specific case facts in articulating a common law rule, which could explain this blend of verb tenses throughout her rule statements in the various drafts of this memo. In both of her rule statements for the final Week 14 Memo II (11/19) assignment, Hong introduced a novel structure that we had not previously discussed: ‘In (case name), under (statute).’ In both of her rule statements for this final memo, she began with this structure (i.e. ‘In Mayflower, under the ACPA’ and ‘In Shields, under the ACPA’) before moving on to the ‘element is (not) met when’ structure she had adopted from Week 8. This structure recalls her previous reference to ‘common law statute/common law case law’ from our Week 6 (9/25) individual meeting, as it directly refers both to individual cases and the statute. Although the use of ‘In (case name)’ to introduce the facts of the case in the section of the rule explanation following the rule statement would not be unusual, its use at the beginning of the rule statement is marked since it suggests that the rule refers only to this individual case. The combined structure Hong created here, along with her blended use of tenses in the rule statement, suggests that she may still have been having trouble reconciling the use of statutes and cases together in common law analysis.

Developmental Trajectory and Mediating Factors The biggest shift in Hong’s understanding of rule statements became evident in our Week 6 individual meeting, in which she could accurately explain what she needed to do, even though she did not yet understand the cases well enough to do this on her own in the assignment she submitted before our meeting. This shift played out in her subsequent revision, although she still struggled with applying her understanding to the evaluation of student samples in CBI 3. Our Week 7 individual meeting included a key moment of frustration in which Hong appeared to recognize the gap remaining in her understanding, followed by a co-construction sequence in which I led Hong through the writing of a rule statement. Hong’s understanding of rule statements from this session transferred to CBI 4 the next day, in which she was able to effectively evaluate writing samples from other students, and

62 Par t 2: Case Studies

then allowed her to lead a co-construction sequence in our Week 10 individual meeting. From her Week 6 revision onward, Hong began to focus more closely on case law in her written rule statements, consistently incorporated legal elements from Week 8, and shifted the grammatical focus of her rule statements to legal elements from Week 11. In terms of the intervention, the fundamental relationship ‘Precedents set rules,’ introduced in the initial CBI session in Week 4, appears to have functioned as a ‘threshold concept’ for Hong. As Meyer and Land (2006: 3) describe it, a threshold concept represents ‘a transformed way of understanding, or interpreting, or viewing something without which the learner cannot progress.’ They go on to explain that these are often key concepts that mark disciplinary boundaries as they represent ‘how people “think” in a particular discipline, or how they perceive, apprehend, or experience particular phenomena within that discipline’ (Meyer & Land, 2006: 3). These are the kinds of fundamental concepts that lead to the revolutionary development described by Vygotsky (1978: 73), in which the learner’s developmental trajectory enters into periods of a ‘metamorphosis or qualitative transformations’ that allow the learner to leap forward rather than plodding along a slow and steady evolutionary path. For Hong, the role of precedent in common law served as just such a concept. This shift also involved a qualitative change in the kinds of meaning that Hong associated with the ideas of ‘rules’ and ‘law.’ Wertsch (1985) describes Vygotsky’s distinction between two kinds of meaning, znachenie and smysl, both of which are relevant for thinking about how the concepts of precedent and legal rules develop for Hong across the semester. Whereas znachenie refers to the decontextualized, static meaning of a word, smysl is the more fluid, personal sense a word acquires through its associations for the speaker. While Hong was aware of the znachenie of words such as ‘precedent,’ ‘binding,’ ‘rule’ and ‘law,’ and could define them, the smysl that they had for her was influenced by her previous legal training in China, as is evident in her interpretation of tasks at the beginning of the semester, particularly her exclusive equation of statutes with law. Until she began to internalize new common law meanings for these terms, she was unable to apply them effectively to her writing for the course. As a result, the secondary concept of mental spaces and its relationship to language use within the memorandum genre fell outside of her zone of proximal development (ZPD) for much of the semester even though it served as a context through which to develop the primary concept of precedent. Once Hong was able to express common law meanings more effectively in her memoranda toward the end of the semester, working through typical grammar ‘errors’ came quickly and easily. In the final weeks of the semester (Weeks 12 and 13), our individual meetings were spent mostly in silence, working side by side. As I highlighted trouble spots in her writing, she corrected these on her own. Once she had finished her corrections, I checked her changes and engaged her in dialogue about any with which I disagreed or for which she was unsure of how to address the issue I had pointed out.

Hong : Legal Concept s Mediat ing L anguage Use

63

While Hong’s overall language proficiency was relatively high, her expectations for what the law is shaped her understanding of the new genres she was learning. More frequently than any of the other participants, she made direct reference to her home country and prior legal training. This came out in discussions of rhetorical style and structures of argumentation in our initial Week 4 Individual Meeting in her references to Chinese civil law and her attempts to equate the rule explanation paragraph with the structures of argumentation she was used to using in her home system. Before our Week 12 meeting, Hong had also restructured the discussion section of her second memo completely, changing many paragraphs that had previously followed the genre conventions from the textbook to new formats. During our meeting, I pointed out that her RA paragraphs didn’t begin with a clear conclusion, which was a necessary genre move indicated in the textbook and the professor’s grading sheet. Hong explained that the organization she was using followed what she referred to as a ‘Chinese thinking method,’ explaining that in Chinese argumentation, a writer would first build his or her argument step by step and then give the conclusion at the end. She asserts that ‘You like to, like, make the conclusion at first. But Chinese people don’t do that’ (Hong, IM 8, Wk.12, 11/6, 00:10:15.12). Translation also mediated Hong’s understanding of key legal terms. This came up first in our Week 6 Individual Meeting when she relied on the translation of a Chinese legal term, which her dictionary translated as ‘defamation,’ in her analysis of the client’s problem. This was problematic, since ‘defamation’ and ‘false light invasion of privacy’ are two distinct legal issues in the US and involve different legal standards. Issues of translation came up again in Week 12, when Hong mentioned that she had relied on what she referred to as a Chinese translation of the ACPA in which ‘non-commercial use’ involved a distinction between running a business and making a profit. Here, Hong’s definition again came from the translation of key terms rather than their interpretation by the court in case law. From the in-class CBI sessions and Hong’s writing, it seemed that the notion of case law as a source of legal definitions had become clearer for her by the end of the semester, but Hong still did not fully connect this concept to some of the definitions that were key to her analysis even in her final memo. Although Hong recognized the importance of case law in explaining common law rules by the end of the semester, she still struggled with reconciling this with her previous training. In her second memo, she introduced an argument regarding ‘defensive domain name registration,’ which she attributed to Chinese perspectives on intellectual property law rather than US cases that were binding on her client. In our meeting in Week 10, Hong also made an argument regarding a calculation of her client’s hypothetical profits, which she attributed to Chinese legal argumentation strategies as well. Hong’s progress in writing rule statements and rule explanations reflected important shifts away from a strict reliance on statutes in her

64

Par t 2: Case Studies

interpretation of the law, but many of the arguments she made at the end of the semester did not rely on the direct application of either precedent or a statute, but rather on strategies that appealed more to general logic. This may have been an avoidance tactic.

Chapter Summary In this chapter, Hong’s experience sheds some light on the challenges faced by a law student who is moving directly from one legal academic culture to another. At the beginning of the semester, Hong tended to view terms such as ‘rule’ and ‘law’ as having equivalent meanings across legal systems and transferred her understanding of what these terms meant in civil law to her common law coursework. Several weeks into the course, when she began to recognize that the meanings behind these terms differed in common law analysis, her approach to the texts that she encountered in the legal writing course changed rapidly. More than other participants, Hong also discussed perspectives on rhetoric and legal analysis from her home country, and these discussions provide further insight into ways that students may draw on their prior training in making sense of their coursework abroad and how this may play out in their reading and writing assignments.

5

Weixin: Understanding Precedent but Struggling with Language

Weixin struggled throughout the semester. Within her section of the legal writing class, her grades on both of the memorandum assignments fell toward the bottom of the group. On both memos, she received the second lowest score in her section of the course (Memo I: score = 60, mean = 78.5, max = 91, min = 59, SD = 12.3, n = 14; Memo II: score = 76, mean = 87.1, max = 98, min = 75, SD = 8.7, n = 14), even though her change in score from Memo I to Memo II was tied for the largest change in grade between the two memos in her section. Her relatively static position vis-à-vis her peers was not due to a lack of effort, however. Weixin requested extra meeting time whenever possible, sometimes asking to meet with me individually for more than two hours in a given week; attended and participated in class regularly; and carefully reviewed the written feedback she received from her law TA. While her professor noted the positive changes in her work across the semester, it was clear that two areas of difficulty for her were the rule application (RA) paragraph and reading comprehension. In this chapter, we will explore Weixin’s trajectory in her writing of RAs and how various factors limited her progress. As the following analysis will show, although Weixin’s study of US common law concepts while she was a student in China helped her understand how to derive a rule from precedent and express this in the rule statement and rule explanation, her understanding of how to apply this rule through specific factual analogies posed more difficulty. Rather than using the genre as a tool to express a legal argument, Weixin focused her efforts in each assignment on mastering the format of the genre itself. This emphasis on structure rather than meaning pervaded our discussions throughout the semester and appeared to limit her ability to understand the task as a whole. Moreover, difficulties with lexicogrammatical awareness influenced both her understanding of the cases she read and her own writing. While she appeared to know that this was a weakness for 65

66

Par t 2: Case Studies

her, she oriented to language as structure and prioritized error correction over expressing meaning, often looking for ‘right’ answers and focusing on the level of individual words, morphemes or phonemes.

Professional, Academic and Language Learning Background Despite the fact that both Hong and Weixin came from China and were trained in a civil law system, the two of them differed professionally in a few important ways. First of all, unlike Hong, Weixin had already worked as a legal assistant for a year and a half in her home country before coming to the LL.M. program. Her interests were in criminal law and international economic law, and she planned to take the New York bar exam and look for an internship in the US after graduation. Unlike Hong, Weixin had also received formal instruction in writing professional legal documents in Chinese, specifically civil complaints, from a professor at her law school in China. Weixin saw a close connection between language skills and her professional goals. When asked about her professional goals after finishing the LL.M., Weixin stated, ‘Right now, the first and the most important goal is improve my English skill!’ (Weixin, Initial Questionnaire, 8/29). In one of our later meetings (Weixin, Wk.9, IM7, 10/16), she mentioned that she had received a 94 on the TOEFL (Test of English as a Foreign Language), which suggested that she should have been one of the more proficient students in the class. In describing her experience with learning English, she wrote that she had only studied English for three years in high school in addition to eight months of self-study for the TOEFL. She had never lived abroad before and referred to her experience in the LL.M. program as her ‘first real experience to use English,’ reiterating, ‘I am trying my best to improve my English skill’ (Weixin, Initial Questionnaire, 8/29).

‘遵循先例. Oh! Chinese is Very Easy!’ Using the L1 to Successfully Mediate L2 Understanding Although her eventual grades in the course were lower than those of her peers, Weixin at first seemed to understand some aspects of common law analysis better than many others did. In her first written assignment, Weixin was able to derive a rule from precedent, effectively distinguishing between factors and elements and clearly focusing on the court’s rationale in determining the relevant rules from the cases she read. In her first case brief, on Williams (8/21), she incorporated key factors from the rationale of the precedent courts cited in the decision, specifically that the stolen property needed

Weix in : Underst anding Precedent but Struggling w ith L anguage

67

to be ‘upon or attached’ or ‘carried or held’ by the victim and not ‘laid aside.’ Unlike Hong, who focused only on the original statute, Weixin immediately seemed to recognize the importance of case law. Weixin also appeared to be familiar with the common law concept of stare decisis through her prior legal training. In the first in-class CBI session, this prior knowledge became evident in a task-based conversation about the rule explanation genre with Zixin, another Chinese classmate: Week 4, Weixin and Zixin, CBI1, 9/12 [00:16:35.10] 1 Zixin: 2 Weixin: 3 Zixin:

4 Weixin:

((reading from slide))’How does this relate to the principle ‘pre[cedents set rules?’ [precedents set rules. I’m not su[re what[遵循先例 (pinyin: Zūnxún xiānlì, English: ‘stare decisis’) 遵循先例 (pinyin: Zūnxún xiānlì, English: ‘stare decisis’). Oh! Chinese is very easy! @@@@@@

[00:16:46.14] In the excerpt above, Weixin’s partner, Zixin, identified the common law concept described in the CBI session as ‘precedents set rules’ as stare decisis, and used the Chinese word for this term of art (遵循先例 (Zūnxún xiānlì, English: stare decisis, literally ‘follow precedent’). This Chinese term was not a direct, word-for-word translation of the phrase used in the CBI session, but instead reflected an understanding of the concept of precedent by identifying the term that is actually used in comparative legal studies in describing the common law system in Chinese (M. Li, personal communication, 30 September 2013; S.-H. Lee, personal communication, 7 October 2013). Weixin’s immediate recognition of this term helped her relate the CBI intervention to her prior study of the US legal system in her first language. In contrast with Hong, whose reliance on the translation of legal terms often led her astray, Weixin was able to use the Chinese term to more easily make sense of what she was being asked to do. This prior knowledge may have contributed to Weixin’s initial successful understanding of how to derive a rule from precedent.

Struggles with Applying a Common Law Rule Although Weixin understood the rule explanation genre fairly well at the beginning of the semester, she had more trouble with the RA. Although she was familiar with some major common law principles from her academic study of the US legal system in China, she likely had little to no experience applying these common law principles to concrete fact patterns. As the use of factual analogies in applying a legal rule is closely related to the use of

68 Par t 2: Case Studies

cases as a source of law, this approach to argumentation would likely be unfamiliar. The RA is the section of the legal memorandum in which the writer uses analogies and disanalogies between parallel facts from the client and precedent cases to analyze the strength of the client’s case. Each RA paragraph focuses on one of the factors or standards identified in the rule explanations earlier in the memo. Although the textbook for the course described the organization of the RA in terms of two main moves, thesis and proof of thesis, the legal writing professors who taught the course provided a more detailed outline: (I) (II) (III) (IV)

Thesis (Conclusion on legal standard) Client facts Comparison to precedent case Legal significance of the comparison

The thesis sentence was intended to provide a conclusion on the client’s case with respect to a given factor or legal standard identified in the case law presented in the rule explanation paragraphs earlier in the memo. The legal writing professors also specified that the next two sections, client facts and comparison to precedent cases, should not just be presented sequentially, but should instead show tight connections or clear distinctions between the client facts and precedent cases.

Pre-Memo I Weixin’s difficulty with this section of the memorandum first became evident in her RA thesis sentences. The thesis sentence of the RA is intended to serve as a conclusion on the client’s issue as it relates to a particular legal factor or standard. In her first RA, on Williams, Weixin’s thesis sentence blended parts of the textbook example with a rule statement from her RE on the same case: ‘Defendant may argue that, a rule was summarized from the Williams case that person does not commit grand theft when the property is not physically attached by the victim’s person’ (Weixin, RA1 Williams, 9/4). The sentence frame ‘Defendant may argue that’ came from the textbook’s example for addressing unfavorable arguments that the opposing party might make (Wellford Slocum, 2011: 178), but Weixin used it here to introduce her own argument in her client’s defense. In effect, her sentence was saying that the defendant would argue for the same interpretation of the Williams case that she had, but she did not go on to draw any conclusion as to how this might affect her client. After beginning with this frame, she then made explicit reference to her own rule from Williams (‘a rule was summarized from the Williams case’). Finally, she inserted a slightly modified version of her most recent rule statement from the Williams

Weix in : Underst anding Precedent but Struggling w ith L anguage

69

case (‘A person does not commit grand theft when the property is not attached to the victim’s person’ (Weixin, RE2 Williams, 9/4)) to complete the RA thesis sentence. This rule was not connected to any specific facts from the client case. In this draft, Weixin did not understand what was expected in the RA. The rest of the paragraph continued to draw on key phrases from the textbook’s examples for introducing unfavorable arguments, frequently in inappropriate ways, first listing the most relevant facts from Williams and then listing the most relevant facts from the Pre-Memo I client problem. This organization implicitly suggested parallels between the client and the victim in the precedent case, but did not draw specific factual analogies as would be expected by a US legal reader. Weixin also did not relate these comparisons to an answer on the legal issue, though she did hint that the client’s facts might provide evidence for the factor of attachment. This implicit conclusion was not related to key factual distinctions from the precedent case, however. Weixin’s inclusion of precedent case facts here seemed to fulfill a genre requirement more than support her argument. In her next RA, Weixin shifted to a new format for her RA thesis sentence, which looked more like the structure for introducing favorable arguments from the textbook this time (Wellford Slocum, 2011: 177): ‘Unlike the Huggins case, the victim was put her purse on the floor and put her foot against the purse’ (Weixin, RA1 Huggins, 9/9). Whereas her previous RA thesis sentence had focused too abstractly on the rule from Williams without applying it to the facts of the client case, this RA thesis sentence focused too narrowly on concrete factual comparisons without linking these to broader legal principles, such as the factor of attachment or the element of taking from the person. More importantly, Weixin again used the sentence frame from the textbook without understanding its meaning. Although the sentence structure indicated that Weixin was contrasting the client’s facts with the Huggins case, the facts she had included actually came from the Huggins case. In other words, she had essentially said that the facts of the Huggins case were unlike the facts of the Huggins case. Weixin relied on the textbook examples of the RA as templates but did not always consider why these models were constructed as they were. The organization of the rest of Weixin’s RA on the Huggins case also departed from the expectations of the genre in that she made no further reference to Huggins after this first sentence. When I met with Weixin for our second individual meeting in Week 4 (Weixin, IM2, Wk.4, 9/11), we discussed her revised RA paragraph on Williams. When I asked her how she understood the function of an RA paragraph, she first interpreted the question as asking about the format. She was able to accurately list the prescribed format for this paragraph. When I then asked her how the RA and RE paragraphs were different, she started by listing the four parts of a rule explanation paragraph. When I again pushed her

70

Par t 2: Case Studies

to try to explain the function of each type of paragraph, she did seem to understand their basic roles: Week 4, Weixin, IM2, 9/11 [00:07:43.20] 1 AH: 2 3 Weixin: 4 5 AH: 6 Weixin: 7 AH: 8 Weixin:

And so, so it sounds like you understand the format of each of these really well. So what’s the- what’s the function of each of these parts? Uh function … I think uh the rule explanation will help a reader to understand uh how the court discussing the case Mm-hmm yeah And the rule application just maybe um for the suit? um [S-U-I-T is that right? [Mm-hmm right yeah mm-hmm So I think uh the important parts of a rule application is uh holding and uh rationale

[00:08:23.15] Her focus on case law in describing the function of the RE and her emphasis on applying the holding and rationale of a precedent case to predict an outcome for the client’s lawsuit in the RA are both accurate characterizations of the roles of these two paragraphs in the memo. Although she understood that the RA should focus on finding a result for the client’s lawsuit, she did not clearly communicate this understanding through the thesis sentence of her RA paragraphs or defend her conclusion through analogies with precedent cases. The focus of Weixin’s work at this point in the term was not to use the genre as a means to build and express a legal argument, but rather to master the format itself. Although she oriented to the formal features of the genre structure, the problems in her writing suggested that she did not understand the meanings that these structures were intended to convey. In her initial questionnaire, Weixin mentioned that the only legal documents she had been formally taught to write in her L1 in law school were civil complaints. Although a template-based approach to learning to write such formal and highly structured court documents may have been effective in that context, it was less effective for the kinds of argumentative writing required in her US legal writing course. At this point in the semester, it was not clear that she understood how the different parts of the memo fit together to build a common law argument. Instead, the writing of each paragraph seemed to be a discrete, format-driven exercise for Weixin and had little connection to her own legal argumentation.

Memo I The first CBI session focusing on the RA specifically was CBI 2, in Week 5. In this session, Teodora, a Romanian student, provided a significant amount of mediation to help Weixin better understand the RA genre. When

Weix in : Underst anding Precedent but Struggling w ith L anguage

71

discussing the first question regarding the function of an RA, Teodora offered clear, accurate explanations and specific examples to help Weixin understand this part of the memo. When Weixin attempted to offer her own perspective, however, it seemed that she had misunderstood the question as referring to the rule itself rather than the RA: Um (.) I think uh the function of the rule is um like a model rule and in like some mo-mo-model rule uh there are different topics, so if we know uh which topic of our case, we can use this mo-model rule. So I think that the function of rule just um, like you say, applying for our case. (Weixin, Wk.5, CBI2, 9/19, [00:07:57.26- 00:08:27.18]) Teodora did not accept this as an adequate explanation, and went on to provide an alternative explanation: Week 5, CBI 2, Weixin and Teodora, 9/19 [00:08:31.07] 1 2 3 4 5

Teodora: Weixin: Teodora: Weixin: Teodora:

6 7

Weixin:

8 Teodora: 9 Weixin: 10 Teodora: 11 12 Weixin: 13 Teodora: 14 15 16 17 18 19 Weixin: 20 Teodora: 21 Weixin:

So (…) the rule application Mm-hmm talks about a case that is similar with ours Mm yes And how that case can help our case, how the decision over there can help our case, how it applies to our case You mean uh the important function of rule application, I think, is uh comparison Mm-hmm Do you think so? It does. And also, does more than that. It tells you how you can talk about your case so you get what you want. You understand? Uh you- get what I want= =It tells you- it like for example, let’s say that you are the lawyer for Ms. Shane, Ms. Shane from our case, and she says, ‘I want you to prove that it was false what he said’ because he let out information. You gonna think- think about it and read the Larsen case, the one we talk about before, and then you gonna write a-a rule application paragraph and you gonna say, ‘In the Larsen case, they said that it’s false if you omit information. In my case, the defendant omitted information’ So it’s [- yeah [So, it’s false. That’s how you use the rule application. Yes? Yes. @@

[00:10:38.25]

72

Par t 2: Case Studies

Weixin appeared confused in the excerpt above. This may be in part because Teodora’s description of the RA was not that different from the way that Weixin had characterized the RE paragraph the week before while working with Zixin in class. In that session, Weixin had described the rule explanation paragraph as providing the basis for comparisons with the client’s case and getting a result for a client. As the Week 5 CBI session continued, there was further evidence that Weixin had conflated the rule explanation and rule application paragraphs. When Teodora and Weixin began discussing question two in the first discussion exercise, on identifying ‘spaces’ a writer needs to think about in writing an RA, Teodora immediately identified the precedent case and client case spaces as important. Weixin, however, interpreted the ‘spaces’ question as asking about the format of the RA paragraph, incorrectly stating that it begins with a rule statement: Week 5, CBI 2, Weixin and Teodora, 9/19 [00:10:58.09] 1 2 3 4 5 6 7 8 9 10 11 12 13 14

Teodora: ‘What ‘spaces’ does a writer need to think about’Weixin: ‘a writer need to think about when’Teodora: We think about precedent. Precedent. The previous case, the precedent. Precedent. We think about the client. Weixin: Yeah. I think this question ask us- um asks we to find the format of rule application. Didifferent space. Teodora: Yeah. Weixin: And uh rule statement uh compel-compare with uh presi-precedent case and our case Teodora: The rule statement= Weixin: =Oh yes, you mean, rule statement. The first one is rule statement. Teodora: But we have to talk about the rule application. Weixin: Oh, sorry, I mean theTeodora: Do you remember when she drew bubbles? Weixin: Bubbles?

[00:12:03.28] During this sequence, Teodora picked up on Weixin’s confusion and redirected her to the nested circles diagrams (referred to as ‘bubbles’ in line 13) used in the concept-based intervention, helping Weixin identify the presentation file in which they were initially presented. Weixin had already downloaded this presentation and had saved it on her computer. As I moved into a full-class discussion of the activity that the class had been working on, Teodora and Weixin continued to review the diagrams from the previous class session together quietly.

Weix in : Underst anding Precedent but Struggling w ith L anguage

73

In spite of this assistance from Teodora during CBI 2, Weixin’s next assignment provided evidence of continued confusion. In her Week 6 RA comparing the client’s case to the Santillo case, Weixin used the rule statement from her first rule explanation on that case, submitted the same day, as her RA thesis sentence: ‘A person do not committed false light invasion of privacy when he/she does not created a false impression by publicizing discrete presentation of true information’ (Weixin, Wk.6, RA1 Santillo, 9/23; RE1 Santillo, 9/23). This sentence again looked much more like a rule statement than a conclusion for the client. The organization of the rest of her RA on Santillo again only implicitly suggested comparisons between this case and the client case. Weixin cut and pasted the case facts section of her Santillo rule explanation (Wk.6, Santillo RE1, 9/23) directly into her Santillo RA in a single block, and then followed this with a chunk of client case facts that would eventually be copied and pasted nearly verbatim into her Larsen RA (Wk.7, RA1 Larsen, 9/30) and again into the second half of her draft statement of facts for Memo II (Wk.7, Statement of Facts: Memo II, 9/30). Not only did this technique not explicitly show the analogies she was making between the two cases, but also, in this particular RA, the precedent case facts and client facts she chose to include were not readily comparable. While her Santillo case facts focused on the truth of the information being published and which information was volunteered by the defendants, her client case facts focused on the effect of the publication on the plaintiff herself. Even a sympathetic reader would have trouble guessing the implied connections between these two sets of facts. Weixin’s final sentence did little to clarify these connections. She provided a single, conclusory sentence to end the paragraph, stating, ‘Therefore, broadcasting email with discrete presentation of true information was created a false impression for Ms. Shane’ (Weixin, Wk.6, RA1 Santillo, 9/23). The connections between the two cases were assumed to be self-evident, and apart from Weixin’s use of the transitional phrase ‘In contrast to the Shane case’ as she shifted from the precedent case facts to the client case facts midparagraph, signaling that she was highlighting a distinction between the two cases and thus a different outcome for the client, no other indication of how the cases might be similar or dissimilar was offered. This RA paragraph again reflected a strict adherence to the format provided by the instructor, at least as Weixin understood it, without an awareness of what this structure was intended to achieve in her overall argument. Weixin continued to use this structure for her RA paragraphs, recycling her rule statement from the corresponding precedent case as her RA thesis sentence in her next RA, on the Larsen case (Weixin, Wk.7, RA1 Larsen, 9/30). From the final draft of her Memo I assignment (Weixin, Wk.8, RA2 Santillo; RA2 Larsen, 10/8) through the end of the semester, however, Weixin shifted away from her use of rule statements as her RA thesis sentences and correctly shifted toward drawing a conclusion for her client in the first

74

Par t 2: Case Studies

sentence of this paragraph. Although she continued to present both the client facts and precedent case facts in two discrete chunks, her remaining assignments for Memo I flipped the order of these so that the client’s facts came first. Although she continued to cut and paste the same set of client facts across each RA, she began to incorporate more specific details from the precedent cases.

Memo II The remainder of Weixin’s RA paragraphs for the semester largely followed the same organization as her revised Larsen RA from Memo I: a thesis sentence offering a conclusion on the client’s problem, a summary of the client’s facts, a summary of the facts from the precedent case, and a restatement of the conclusion for the client. Her first and second drafts of the RA paragraphs on both Shields v. Zuccarini (2001) and Mayflower v. Prince (2004) paralleled each other, using essentially the same thesis sentence at the beginning for both cases. In her first drafts of these RAs, she focused exclusively on the element of bad faith intent to profit: ‘Under ACPA, Mr. Garber not acts with bad faith intent to profit’ (Wk.11, 10/28, Weixin, Shields RA1) and ‘Under ACPA, Mr. Garber does not act with bad faith intent to profit’ (Wk.11, 10/28, Weixin, Mayflower RA1). In her second drafts, she incorporated reference to the factor of non-commercial use by adding the adverbial ‘when he does not use his domain names on commercial purpose’ to the end of each of the RA thesis sentences from her previous versions. Likewise, as in her Memo I assignment, Weixin recycled the same set of client facts across the RAs for the two cases, only adding one additional sentence to the client facts in the Mayflower RA without adding a parallel fact to the precedent facts section. By the end of the semester, the only direct comparison she had made between her client facts and a precedent case appeared in her third draft of the Shields RA for this memo. This followed a CBI session focusing on language for making direct comparisons between facts from the client and precedent case. In this draft, she inserted the following sentence in the middle of the precedent facts section: ‘This fact is very different from our client, in our client all of advertisers are related with Subaru products’ (Wk.13, 11/11, Weixin, RA3 Shields), effectively contrasting it with the Shields case, in which the defendant had posted ads for multiple credit card companies unrelated to the original domain name owner’s product. Weixin’s final draft of her RA paragraphs for Memo II (Wk.14, Weixin, Memo II final, 11/19) showed some evidence of progress in making specific analogies between her client’s case and the precedent cases. While her overall RA organization still included the same chunk of client facts across the two RAs immediately following the RA thesis sentence, the rest of her Shields RA

Weix in : Underst anding Precedent but Struggling w ith L anguage

75

paragraph (Wk.14, Weixin, RA4 Shields, 11/19) now moved back and forth between more specific parallels between the client and precedent case facts, honing in on key distinctions and analogies. Although the legal significance of each of these comparisons was not explicitly mentioned, a sympathetic reader would now more easily be able to understand her implicit analysis and thus be more likely to accept her final conclusion sentence. Weixin’s final RA on Mayflower (Wk.14, Weixin, RA4 Mayflower, 11/19) also showed some progress. For the first time in the Memo II assignment, Weixin did not simply repeat the same broad conclusion for the client as her RA thesis sentence in both RAs. Instead, for her RA on Mayflower, she focused her RA thesis on evidence of the client’s intent to critique the company related to the disputed domain name, adding that the client used the site ‘to warn people instead of earn money.’ This was the first time in the semester since Weixin had abandoned the use of rule statements as her RA thesis sentences that she had made such a distinction between the two precedent cases in her analysis, recognizing how each case made a distinct contribution to her overall argument. Unlike her final RA on Shields, however, this final RA on Mayflower did not include specific factual comparisons. There were no client facts interspersed into the precedent case facts section and the client facts she did include toward the beginning of the paragraphs were essentially the same ones she had included across all eight RA drafts of this memo. Although she added one additional precedent case fact about the purpose of the defendant in Mayflower in registering his domain names, which implicitly supported her new thesis sentence about the client’s objective of warning people about Subaru products through his websites, the connection between this new fact and the client was not highlighted either linguistically through explicit marking or implicitly through proximity within the text, as she did in her Shields RA. At the end of the semester, although Weixin was able to roughly approximate the expectations of the RA genre, it appeared that she still relied heavily on mediation from others in order to do this. Although we had worked in class on linguistic structures for highlighting analogical, fact-based comparisons for the RA and talked about the need for her to make her own comparisons both more specific and more explicit repeatedly in our individual meetings, she was only able to approximate this in one of her two final RA paragraphs. A comparison of her texts from the beginning and the end of the semester suggests that she had made some progress, but this progress was hard-won and unstable given her moderate success with only one of the final two paragraphs. Although she seemed to understand that she needed to make comparisons and that these would form the basis of her argument, her holistic approach of showing similarity to a favorable case and dissimilarity from an unfavorable case was far from sufficient for making an effective common law legal argument.

76

Par t 2: Case Studies

Misunderstanding Audience, Purpose and Task Focus on advocacy over objectivity Part of Weixin’s difficulty across the semester came from a misunderstanding of the intended audience and purpose of the memo. While the memorandum assignment was framed as an objective analysis of a client problem to advise a supervising attorney, Weixin seemed to have understood the assignment primarily as focused on advocacy for the client. This first came up in her in-class session with Zixin in Week 4, in which she described the purpose of the rule explanation as relating to winning the client’s case: ‘Everything just for win. Win the case- win the suit […] °got to get money° @@’ (Wk.4, 9/12, Weixin and Zixin, CBI1)). On its own this could have been a relatively minor misunderstanding, but as the semester continued, it started to affect Weixin’s interpretation of which information was relevant or irrelevant in the cases that she was analyzing. In the Week 12 CBI 5 session, when she and her partner Umar were presented with an exercise that asked them to compare the Mayflower case to their client’s case in terms of the number of domain names that had been registered, Weixin saw this comparison as irrelevant, despite the fact that the registration of multiple domain names was one of the factors both listed in the statute and addressed consistently in the case law evaluating the focal element of bad faith intent to profit: Week 12, Weixin and Umar, CBI6, 11/7 [00:24:54.18] 1

Umar:

2 3 4

Weixin: Umar: Weixin:

5 6 7 8

Umar: Weixin: Umar:

9 Weixin: 10 Umar: 11 12

Now you can try, uh now you understand the facts, right? You can try to uh ehComparing this Yeah, comparing. We should combine them or compare them. Um why it’s important to #comparison for- uh is necessary for our m::emo? I think uh this fact and uh this fact uh is unnecessary to talk for our me-memoIt’s not about= =Do you think= =it’s not necessary or not. This is exercise. Okay Exercise that show- makes us familiar with the work and make us understand how to do it. So it doesn’t matter if it’s- related to our #rule or not. Maybe not, maybe yes, but uh the reason of this exercise just to like make us more familiar with this e:::h type of writing

[00:25:51.07]

Weix in : Underst anding Precedent but Struggling w ith L anguage

77

While Umar made a clear separation between the in-class exercise and the memo assignment, Weixin rightfully expected a connection between the two and saw the facts relating to the number of domain names as irrelevant. Weixin’s perception of the Mayflower facts from this exercise as irrelevant may have come from what she perceived as an argument against the client. When she went on to orally compare the two facts from this exercise in her own words, she demonstrated a clear understanding of the factual distinctions between the client case and Mayflower, but seemed reluctant to connect this to questions of legal significance: Week 12, Weixin and Umar, CBI6, 11/7 [00:27:07.18] 1 Weixin: Okay, I try. Mmm of course, it’s clear uh the Mayflower case uh with our case is 2 different. Uh for the website, our client uh registered multiple domain names uh but this domain 3 names just involved in one company, but for Mayflower case, the defendant registered uh maybe 4 also mu-multiple domain names, but uh this domain names involved in three companies, so mm 5 no- the content of website is differen-different. This is the difference between Mayflower case 6 and our client case.

[00:27:54.09] In her own memo, Weixin consistently stated that Mayflower and the client case were similar, and that, as a result, the client should not be liable. Her explanation above suggests that while she was aware of factual distinctions between the cases, she either did not see these as legally significant or she believed that because they might damage the client’s case she should not discuss them in her memo. Indeed, Weixin’s tendency to argue in favor of the client and her omission of counterarguments in all but one assignment across the entire semester both suggest a reluctance to incorporate viewpoints that reflected positions other than those desired by the client.

Favoring the abstract over the specific Weixin’s use of comparisons in her memo assignments appeared to be largely holistic rather than analytic, though the passage above shows that she was fully capable of recognizing more fine-grained distinctions. As her trajectory in writing the RA shows, rather than comparing specific facts, she tended to emphasize the overall similarity or difference between cases and based her conclusions on these holistic assessments relating to the case’s holding. In the instance described in the excerpt with Umar, an analytic perspective showing a difference between her client and the favorable precedent would have helped rather than harmed her argument, however. Although

78

Par t 2: Case Studies

Weixin may have been wary of admitting any difference between her case and Mayflower, the case with the holding favorable to her client, the difference here actually favored her client because it suggested that the client’s case was even stronger than the defendant’s in the favorable precedent. Weixin did not recognize this potential argument in the facts highlighted on the worksheet, but she did see the potential importance of the factor of multiple domain names. Instead of making a favorable distinction with Mayflower, however, she transposed this analysis onto the Shields case in her Week 13 RA. She was not afraid to make factual distinctions when this involved cases from which she would have liked to distinguish the overall holding, but she was more hesitant to admit any differences between her client and the favorable case or similarities between her client and the unfavorable case. This holistic orientation seemed to be linked to her broad focus on the legal element at issue in her RA thesis sentences, her repetition of the same group of client facts across all of her RAs for a given memo, and her separation of the client and precedent facts in the overall organization of her RA paragraphs throughout most of the semester. When I pointed out the latter two issues in an individual meeting and explained that the general level of detail that she had provided over and over again for the client facts was unnecessary, Weixin explained her understanding of the task: Week 13, Weixin, IM11, 11/13 [00:21:36.01] 1

So, what you do here ((points)) is good- where you’re starting to talk more about, you know, 2 specifically, this is what happened in Shields, this is the purpose of Zuccarini, this is um different 3 than our client’s case. Um 4 Weixin: But for two cases, um I think uh the important uh fa-factor is non-non-commercial 5 AH: Mm-hmm 6 Weixin: Uh so uh just for this different cases, uh in Shields, in Shields the defendant featured 7 some advertisers- advertisemen-advertisements uh in the sites and uh in Mayflower’s, the 8 defendant uh did not uh feature some like advertisements in the sites, so that’s the reason why I 9 just repeat the same facts of our climent- [our client 10 AH: [Okay, but do we need to know all of these facts again? 11 I mean, you’re telling me that it includes- yeah, he had multiple domain names, these were the 12 domain names, it included these specific advertisers- (.) We don’t need this much detail again. I 13 think you wanna look at- very specifically- what exactly about those advertisements were similar 14 to or different from um the advertising in Shields. Or in Mayflower, what makes- what was 15 similar to specifically- or different from- our case? AH:

Weix in : Underst anding Precedent but Struggling w ith L anguage

79

16 Weixin: Oh, do you mean I should um discuss more like comcomparisons instead of the facts? 17 AH: Yeah, instead of just giving me the general facts together as a group, more comparisons 18 directly. So comparisons- directly compare specific facts, and then say why that’s important for 19 your legal conclusion

[00:23:25.24] In this excerpt, it became clearer that Weixin was focusing the analysis in her RA at the more abstract level of the factor of non- commercial use rather than on the concrete factual comparisons that would be expected. She filled in the genre in the way that she understood it, which she described later in the same meeting as: (1) conclusion for the client, (2) relevant client facts, (3) comparisons of the two cases and (4) conclusion again. This explanation was similar to the outline provided in class, but it did not take into account the instructor’s further emphasis on making direct fact-to-fact comparisons. Instead, Weixin’s comparisons at the end of the semester were still primarily framed implicitly and at the level of the factor rather than particular facts. Her RAs seemed to be saying, ‘This is the conclusion for my client, here are the client facts that led me to this conclusion, this overall situation is different from or similar to the precedent (which had the same or opposite result in terms of the factor), and here is my conclusion again.’ The comparisons Weixin made between cases in her RAs seemed to be based on a holistic assessment of whether or not they met the legal standard, here non-commercial use, rather than an analytic assessment of specific factual analogies or distinctions between cases.

Confusing client and precedent Just as Weixin misunderstood the broader audience and purpose of the RA paragraph, there were also various points throughout the term when Weixin had difficulty with more fundamental issues of recognizing whether information came from an imagined client or an existing precedent. This issue first became evident in the Pre-Memo I problem at the beginning of the semester. This problem was based on a set of fictional client facts regarding the taking of a portfolio by a defendant named Mickie Fitzgerald and involved the analysis of two precedent cases, Williams and Huggins. In our second meeting (Wk.4, 9/11, IM2), Weixin wanted us to go through a revised version of her RA paragraph on Williams (Wk.3, 9/4, RA2 Williams) together. In this paragraph, she had added a citation to an additional precedent case, specifically an unrelated California criminal law case called People v. Fitzgerald, representing the client’s case as if it were a precedent case that had already been decided by the court. As we talked about this citation in our meeting, it became clear that she was attempting to respond to her law TA’s recommendation to add more citations in her writing. When I asked Weixin

80

Par t 2: Case Studies

where the citation had come from, she admitted that she hadn’t actually read the case but had just searched the Westlaw database for the name ‘People v. Fitzgerald’ and marked down the citation for the first case she found, despite the fact that it had nothing to do with the client’s case. Her misunderstanding of this comment from her law TA reflected a more significant underlying issue with misunderstanding the task. Her search for a citation for the client’s case made it clear that she did not understand the purpose of the memorandum as an attempt to solve an actual problem for a client in the ‘real’ world, but rather as an academic exercise of comparing published cases. At the beginning of the semester, it was also not completely clear that Weixin understood that the client’s case had not already been decided. Weixin’s use of rule statements in her RAs throughout almost all of her Pre-Memo I and Memo I assignments seemed to reflect not just a misunderstanding of the genre, but also of the task. When I first pointed out to her that the RA thesis sentence should be a specific prediction for the client rather than a statement of a general rule, she at first equated this with the holding of the case: Week 4, Weixin, IM2, 9/11 [00:10:28.11] 1

AH:

2 3 4 5 6 7 8 9 10

Weixin: AH: Weixin: AH: Weixin: AH:

11 12 13 14 Weixin: 15 AH: 16 17 Weixin: 18 AH: 19 20 Weixin: 21 AH:

Okay. ’Kay good, um (.) So one thing, for the rule application (.) your thesis sentence sounds a little bit to me like the rule statement from a rule explanation (.) because- but it’s telling me just about the penal code and it’s telling me what’s the element, but for a rule application, the thesis sentence should start as a prediction, so will‘Pre-dic-tion’? Mm-hmm ((quietly)) ‘Prediction’ … oh I think I forgetah -what’s the meaning of ‘prediction’ So, what do you think will happen for your client? Is Fitzgerald likely to be convicted of grand theft person or not likely to be convicted of ba- grand theft person? (.) Um, so in other words, we know that from the penal code ((points to Weixin’s thesis sentence)) ‘taken from the person’ ((circles element on Weixin’s thesis sentence from RA)) is an important thing to prove Uh-huh And in a rule explanation, we looked at how different courts had talked about ‘taking from the person’ ((nods)) So your rule application would start with a sentence saying, in Mr. Smith’s case, was the portfolio taken from the person or not? Oh So it’s- what do you think the court will decide about that issue, specifically?

Weix in : Underst anding Precedent but Struggling w ith L anguage

81

22 Weixin: Oh, so in the rule application put the maybe issue or rule statement at the first, not this 23 thesis sentence ((points to paper)) 24 AH: Different kind of thesis sentence. 25 Weixin: Mm-hmm 26 AH: So it’ll still be a thesis sentence, but it’s a thesis sentence that says what do you think the 27 court will decide about the issue. 28 Weixin: Oh … like holding? 29 AH: Kind of, but remember that, for your client, there is no holding yet. 30 Weixin: Oh yeah 31 AH: So, it’s your prediction about the holding. It’s what you think will ha- the holding will be, 32 based on your analysis. 33 Weixin: Oh, so uh the thes-thesis sentence uh come from my- from my perspective. 34 AH: Mm-hmm 35 Weixin: And uh rule statement come from court’s holding? 36 AH: Exactly. Exactly. You’ve got it. 37 Weixin: Oh! 38 AH: Nicely done.@ 39 Weixin: @ Maybe before version is right!

[00:12:44.26] At the end of this segment, Weixin seemed to correctly understand that the rule statement (and rule explanation) should be based on summarizing what the court said about a previous case (‘from court’s holding,’ line 35) and that the RA thesis sentence, and RA as a whole, were meant to express her own analysis of how the law would apply to the client (‘from my perspective,’ line 33). She reiterated this idea that the RA should come from her perspective and that the rule explanation should come from the court’s perspective about a minute later as our discussion continued. This potential misunderstanding between the client and precedent cases resurfaced as Weixin worked on Memo I, however. Our Week 6 individual meeting had started with Weixin asking me about the rule of a case she had been reading for another course. Since I was unfamiliar with the torts case she had brought in, she suggested that we switch back to the Shane client problem, which she initially pronounced as ‘Shine’: Week 6, Weixin, IM4, 9/25 [00:14:21.08] 1 2 3 4 5 6

Weixin: AH: Weixin: AH: Weixin: AH:

Maybe we can talk about Shine case Sure, we can do that Yes, uh so, maybe uh because you know Shine case Mm-hmm You know the context of Shine case Uh-huh

82

Par t 2: Case Studies

7 8 9 10 11 12 13

Weixin: AH: Weixin: AH: Weixin: AH: Weixin:

14 AH: 15 Weixin: 16 AH: 17 18 19 20 21 22 23 24 25 26 27 28 29

Weixin: AH: Weixin: AH: Weixin: AH: Weixin: AH: Weixin: AH: Weixin:

So what’s the rule of Shine case? Well, can we have a rule in the Shane case? Oh, ‘Shane,’ not ‘Shine.’ Uh-huh No. Uh-huh. Why? Uh because this case um be-because uh Shane does not sue the Mr. Ro-Rogers Yeah, there’s no decision made in the case yet. Oh, there is not a decision. Yeah, and exactly, yeah, he- she hasn’t brought suit against him yet, so there’s been no case so we can’t talk about a r- a rule coming out of the case until we have a decision from the court and the rationale from the court. Mm but [if [soI’m sorry No, please Did you read the Sha-She-Shantilo? Santillo? Oh, I’m sorry! Santillo, Santillo case. Mm-hmm Oh yes Yeah, I’ve got it with me Can we talk about the rule of Shantillo case?

[00:15:28.01] This excerpt could be understood a few different ways. On the one hand, it appears that Weixin may just have had difficulty distinguishing between the pronunciation of the client’s name, ‘Shane,’ and that of the plaintiff in the first precedent case, ‘Santillo.’ If this was the case, she may not actually have been asking about a rule from the client’s case, but rather about a rule from Santillo. At the same time, her mispronunciation of the client’s name as the monosyllabic ‘Shine’ occurred again across her next CBI session with Jingfei (Wk.6, CBI3, Weixin and Jingfei, 9/26), and her next individual meeting (Wk.7, Weixin, IM5, 10/2). Her pronunciation of the name ‘Santillo’ varied but remained consistently trisyllabic. When I asked her whether or not we could have a rule in the Shane case in the segment above (line 8), she corrected her pronunciation from ‘Shine’ to ‘Shane,’ and then correctly understood that I was referring to the client and not to the precedent (lines 9–13). She also recognized at that moment that there couldn’t be a rule for the Shane case yet and shifted the topic to Santillo, bringing us back to her original concern about deriving a rule from precedent (line 29). Weixin’s reference to the court’s perspective versus her own perspective in the earlier excerpt may thus help explain her use of rule statements as RA thesis sentences throughout a large part of the term. For Weixin, the RA thesis sentence represented a kind of ‘rule statement’ for the client, in which she presented her perspective on what the holding would be.

Weix in : Underst anding Precedent but Struggling w ith L anguage

83

Focus on Genre as a Template Weixin’s difficulties with the RA may also have stemmed from an orientation to structure over meaning. In her Pre-Memo I assignments described above, Weixin’s initial RA paragraphs looked like pastiches of sample paragraphs from the textbook, sometimes down to the exact number of sentences. At the same time, as the analysis above indicates, Weixin often did not attend to the meanings suggested by the templates she used. Weixin’s orientation to the genre structure without understanding its meaning relates to a distinction between imitation and mimicry discussed in Lantolf and Thorne (2006). While mimicry involves copying the means by which a more expert language user achieves a specific goal without understanding the goal itself, imitation involves an understanding of the relationship between the means that are used and the ends that they are intended to achieve. As Lantolf and Poehner (2014) argue, understanding this means-end relationship is an important tool for development. In order for learners to be able to make agentive choices about the meanings they want to convey, knowing the required structure is not enough. On at least two occasions, when asked about the purpose or function of different parts of the memo, Weixin began her response with a recital of the generic move structure of that section and needed additional prompting to move into a discussion of what that section of the memo was meant to achieve. Aside from the full memo drafts, she treated individual parts of the memo as discrete assignments, submitting each section in its own document file, even when a given section was only one sentence long, such as in the case of the Question Presented, which identifies the legal issue or issues that the memo will address. At one point in the semester, when we were talking about her introduction of unfamiliar referents in the Question Presented at the beginning of the memo, she insisted that she had already written the facts of the case. Although she had indeed written her Statement of Facts summarizing her client’s case earlier in the semester, this section would appear after the Question Presented in the final memo. Again, Weixin did not seem to understand how the individual parts of the memo fit together as a whole, and instead focused on getting each individual section ‘right’ rather than building a coherent document to express a legal argument. Weixin’s continued orientation to form over meaning became most evident in our Week 13 individual meeting. In her RA for the Mayflower case, submitted earlier that week (Wk.13, Weixin, Mayflower RA3, 11/11), Weixin mentioned that the defendant in the precedent case hadn’t included any advertisements on his website. She then went on to assert that ‘Therefore, our client Mr. Garber does not act with bad faith intent to profit under the ACPA.’ This was problematic in part because the client did have advertisements on his website, a fact that distinguished him from the defendant in Mayflower

84

Par t 2: Case Studies

and would likely count against him on the factor of non-commercial use. Weixin was aware of this fact from the client case and mentioned it in other places in the memo as well as in our meetings and the in-class CBI sessions. When I suggested that this juxtaposition might be problematic without further explanation, Weixin stated that this conclusion sentence, which she had placed at the end of her RA paragraph, was not intended to be a conclusion based on the facts she had mentioned, but rather that she was simply fulfilling the genre expectations for the RA: Week 13, Weixin, IM11, 11/13 [00:26:42.21] 1

AH:

2 3 4 5 6 7 8 9 10 Weixin: 11 AH: 12 Weixin: 13 14 AH: 15 16 Weixin: 17 AH: 18 Weixin:

I think the one last thing before we go is to be careful in your RA- don’t just make comparisons to make comparisons. Make sure that you’re really looking at what that comparison means, and if it means something that’s against your client, you really need to talk about that. Um, so for example here ((points)) um (…) so you talk about Dr. Prince in Sh- in Mayflower. You say ((reading)) ‘There is not any advertisement in Dr. Prince’s website, so he had never used these domain names for commercial purposes. He also does not desire- did not desire to sell these domain names. Therefore, our client Mr. Garber does not act with a bad faith intent to profit under the ACPA.’ It’s very difficult to see the connection between these two and why this ((points)) would mean this ((points)). If this is the reason for this- ‘cause you say ‘therefore’Oh -which to me tells me that this is the reason Yes, uh, this word ‘therefore’ I just uh con-conclusion again for RA, no-not for this facts Yeah, you still have to deal with these facts. You can’t just leave a bunch of facts and say ‘Therefore, I’m right. Done.’ @@@ (.) @@ Because that’s what this looks like. @ Okay

[00:27:57.27] We went on to discuss this issue in more detail, but after I finished explaining that she needed to further elaborate the comparisons she was making, Weixin immediately shifted the discussion to grammar, asking whether there were any grammar mistakes in the paragraph. While I saw discussing discourse structure as an important part of my role as a language specialist, Weixin seemed to perceive my role primarily as a source for wordlevel error feedback.

Weix in : Underst anding Precedent but Struggling w ith L anguage

85

Lexicogrammatical Awareness and Orientation to Forms Weixin was concerned with correctness, both in written and spoken language, and was often hesitant when I suggested that more than one form was possible or that the form she should choose was dependent on the meaning she wished to convey. Often, when I tried to push her to articulate her meaning so that I could better help her express it, she seemed resistant, steering the conversation back to the ‘right’ answer. She frequently stopped our discussions to ask whether her pronunciation, word choice and grammar were correct, and often interrupted herself mid-sentence to change her word or tense choice, even when both the original and the correction would have been effective (or ineffective). Language for Weixin meant linguistic form, particularly at the level of the word, morpheme or phoneme, and she appeared to subscribe to a version of standard language ideology in which only one form can be the correct one. She did not want to know what was effective, but what was ‘right.’ It may seem paradoxical, then, that lexicogrammatical concerns were an important factor limiting Weixin’s progress. Despite the significant attention that she paid to lexicogrammar, she often had difficulty recognizing both lexicogrammatical forms and meanings. This alone might not have been determinative, but when it was coupled with an orientation to language that emphasized form over meaning and correctness over effectiveness, it became difficult for us to find time to work on more fundamental issues in her writing. Weixin’s limited lexicogrammatical awareness became evident in recurring problems with the passive voice and past tense, among other grammatical forms, in her writing. Unlike Hong, who was easily able to correct grammar issues with minimal intervention during her final revisions, Weixin had difficulty with distinguishing among these linguistic forms and their meanings and required extended mediation in order to gain more control over them throughout the semester. Although Weixin scheduled additional meeting times with me beyond her regular 30-minute weekly meetings and frequently stayed to work with me beyond her scheduled time, sometimes up to a full hour after our session was scheduled to end, much of this time was spent discussing either grammar issues that obscured meaning in her assignments or her misunderstandings of the assignments or cases she had read. The relatively limited scope of Weixin’s lexicogrammatical awareness did not become apparent until we began to address these errors in our individual meetings. Relatively basic errors with word forms (e.g. repeatedly writing ‘putted’ as the past tense of the verb ‘put’ or using ‘doed’ in place of ‘did’) and auxiliaries were also ultimately more persistent than would be expected for a student with Weixin’s TOEFL score. During our first meeting (Wk.3, 9/4,

86

Par t 2: Case Studies

IM1), Weixin seemed to be able to correct many of these errors on her own, with only minimal intervention from me. When I highlighted the phrase ‘the portfolio was slid,’ in our second individual meeting before the primary intervention, Weixin immediately opted to delete the word ‘was,’ which was an effective correction. Her explanation of why she did this, however, suggested that her rationale for making this correction may have been misguided: Week 4, Weixin, IM2, 9/11 [00:15:04.11] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Weixin: Maybe I should delete ‘was’? AH: Yeah. And why? Weixin: Uh because of (.) ‘slide’ because there are two ((holds up two fingers)) verbs (.) Ververbs? The word is right I say? AH: Maybe, yeah Weixin: @@ maybe? AH: You hafta tell me more Weixin: Well um I want to say the word- uh ‘verb’- it means uh (.) some word or act. AH: Yeah. In this case, we think of the portfolio as sliding on its own because you could say ‘he knocked it’ or ‘he pushed it,’ but ‘slide’ talks about the action of the portfolio moving. Weixin: Oh AH: So even if it was caused by something else, the action of sliding- we say the portfolio actively does that usually. Weixin: ((nods)) AH: Um, you could say it ‘was knocked’ because Smith knocked the portfolio, or ‘was pushed’ because Smith pushed the portfolio, but the portfolio itself slid, so it just describes the movement, but not necessarily the intention or the-the cause Weixin: Oh AH: Mm-hmm. So yeah, so that’s good. I think making that the active voice is a good change. Weixin: Mm. Thank you! AH: Sure

[00:16:19.09] Although at the time our meeting was taking place, I understood Weixin’s reference to a verb meaning ‘some word or act’ (line 8) to mean that she was referring to a distinction between active and passive voice, it later became apparent that this was not the case. Looking more closely at this segment, it seems that she had understood the problem to be not with a conflict inherent in an intransitive use of the word ‘slide’ in the passive voice, but rather that the problem was related to using two verbs together, which she highlighted gesturally by raising two fingers as she gave her explanation (line 3). Thus, what at first appeared to be a successful self-correction seems instead to have been a formally ‘right’ answer based on the wrong reasons. Over the course

Weix in : Underst anding Precedent but Struggling w ith L anguage

87

of the semester, subsequent instances suggested that her initial ability to correct these problems was likely based more on an awareness that this form was a recurring problem for her than on a true understanding of its meaning. From Week 7, it also became apparent that her difficulties with the passive voice were closely related to confusion with the past tense. The following excerpt from our Week 12 individual meeting (Wk.12, Weixin, IM10, 11/6) illustrates the degree of difficulty that Weixin continued to experience with distinguishing grammatical forms even at the end of the semester. Issues regarding tense and voice had come up in at least five of our individual meetings preceding this one, often resulting in extended discussions, as in the excerpt below. In this excerpt, our discussion focused primarily on her Question Presented and, to a lesser extent, her rule statements for Memo II: Week 12, Weixin, IM10, 11/6 [00:03:10.26] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Weixin: I’m not sure when I should use a passive voice or not passive #words, because I think um on the R-E- R-E the first sentence we don’t need use passive voice AH: I mean it’s possible, it- now are you talking about passive voice or past tense? Those are two different things. Weixin: Uh, oh yes. The- in English is passive voice? AH: Okay, so something like ((writes)) ‘is satisfied’ or ‘is taken’ or ‘is done.’ Like that? Weixin: Yes AH: That’s passive voice. And then there’s also past tense, which is like ((writes)) ‘went,’ ‘did,’ ‘acted,’ ‘took’- These are all past tense of the active voice. Weixin: ((nods)) Uh I wanna say, we don’t need use uh either passive voice and uh active- active voice- pa-passive tense in the first sentenceAH: Um Weixin: -of RE, so I’m not sure about Question Presented. AH: Well right now, you don’t have any examples of past- of passive voice here at all. There’s no passive voice in this (.) sentence. Weixin: Oh AH: I don’t see anything that’s passive voice. Weixin: Um AH: Um where-where do you see passive voice here? Weixin: Here? Uh there-there is no pa-pa- there is no passive voice. AH: Okay Weixin: So I use ‘does act.’ Uh instead of use like ‘did’ orAH: Okay, well that wouldn’t be passive voice. So I think, just to be clear, um Weixin: So uh ‘did’ is a passive tense? Te-tense? AH: No- okay, so let’s look at- let’s look at two different things. Let’s look at passive voice versus active voice ((writes, draws sharp line across page to separate this section from next

88 27 28

Par t 2: Case Studies section)) and ((writes)) simple present versus simple past. They’re not directly related, these two different things.

[00:05:28.20] This mediational sequence on distinguishing between passive and active voice and past and present tense continued for another six and a half minutes, meaning that almost a third of our meeting time this day was spent establishing that she and I were referring to the same things in our use of grammatical terminology and making sure that Weixin could demonstrate this understanding through the construction of sentences related to her memo. This meant that we were left with little time to address more substantive issues in her writing.

Difficulties with Reading Comprehension A related area that posed difficulty to Weixin was understanding key details of the cases she was reading. In her early assignments, although Weixin’s approach of trying to identify factors from the court’s rationale was correct, issues of lexicogrammatical awareness limited her ability to accurately understand the court’s reasoning. In Williams, the court explicitly stated that ‘actual control’ was not essential to establish the element of ‘taking from the person,’ saying ‘[the crime] is not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands’ (Williams, citing In re George B, p.245/1471). In this sentence, it seems that Weixin may not have recognized the less common usage of the word ‘however’ in the phrase ‘however immediately.’ When explaining the court’s rationale in her first rule explanation paragraph, she stated that ‘from the court’s perspective the purse was not under Cirrencione’s control, so grand theft person does not occur’ (Weixin, RE1 Williams, 8/26). While the court had argued that control alone was not enough to establish that the property is ‘taken from the person,’ Weixin misunderstood this conclusion, subsequently focusing on control as a major factor in determining whether something is ‘taken from the person’ of the victim. More evidence for this confusion appeared in Weixin’s conversation with Zixin in the first CBI session in Week 4, in which she mentioned that she thought that another student’s rule statement contradicted itself. She stated that at first it say uh says uh this is- uh purse is-is not in some way upon or attached to the person, but next one- it’s-it’s taken from the actual and immediate control of the victim. I think it conflict. (Wk.4, CBI 1, Weixin and Zixin, 9/12 [00:39:30.05-00:39:51.17])

Weix in : Underst anding Precedent but Struggling w ith L anguage

89

Since she believed that the court relied on the notions of both control and attachment in its decision, she thought that the student sample was incorrect when in fact it accurately reflected the court’s focus on attachment rather than control. Similarly, in her rule explanation paragraph for the Huggins case (9/9), Weixin began with the same rule statement she had used in her rule explanation for Williams, specifically, ‘A person does not commit grand theft when the property is not attached to the victim’s person’ (Weixin, RE1 Huggins, 9/9; RE1 Williams, 9/4). While at first this may look like Hong’s focus on the same factors in both of her rule statements in her final draft of Memo I (Hong, Wk.8, Memo I final, 10/7), it seems to come from a different source. A closer look at Weixin’s understanding of the holding in Huggins shows that she had misunderstood the court’s decision, mistakenly believing that the defendant in the case had not been found guilty of grand theft person and therefore understanding the court’s rationale regarding partial attachment to be a factor in favor of the defendant rather than against him. She reported the holding for the Huggins case as ‘The court held that acquittal for the defendant should have been granted’ (Weixin, RE1 Huggins, 9/9, emphasis added). This sentence seems to be her paraphrase of the procedural history and outcome of the case expressed in the segment below: Following the denial of his motion for judgment of acquittal at the close of the prosecution’s case (Pen.Code, § 1118.1), defendant Christopher Blair Huggins was convicted by jury of grand theft from the person. (§ 487, subd. (c).) Sentenced to state prison, defendant appeals, contending his motion for acquittal should have been granted. We shall affirm the judgment. (People v. Huggins, 1997, p. 178/1656, emphasis added) Again, Weixin had understood the opposite of the court’s intended meaning. Rather than understanding the phrase ‘motion for acquittal should have been granted’ as the defendant’s failed appeal following the decision of the lower court, she interpreted this as the appellate court’s final decision. In fact, the appellate court eventually denied the appeal and affirmed the conviction of the lower court. Part of her difficulty with the sentence cited above may have been due to issues with verb tense and passive voice, which were major areas of confusion for Weixin, as we saw in the previous section. Weixin may not have recognized the use of the present tense ‘appeals’ as indicating that the court was currently evaluating this prior sentence or linked the use of the counterfactual modal construction in the passive voice (‘should have been granted’) to the defendant’s claim regarding the lower court’s earlier decision. Likewise, Weixin missed the appellate court’s ultimate judgment, expressed through a future modal in the verb phrase ‘shall affirm.’ Again, she may have misunderstood the modal here, or failed to

90

Par t 2: Case Studies

recognize that ‘the judgment’ referred to the sentence of the lower court, which the defendant was appealing at that time. Weixin misunderstood the procedural history of the case and the ultimate holding, and thus viewed the court’s rationale through this lens. As such, she appears also to have missed the court’s repeated rebuttals of the defendant’s arguments. Even though the court’s holding was reiterated in the final sentence of the case: ‘For the foregoing reasons, we conclude the prosecution’s evidence was sufficient to sustain a conviction for grand theft from the person and the trial court properly denied defendant’s motion for acquittal’ (People v. Huggins, 1997, p. 179), her initial understanding of the case appears to have shaped her reading of it. Given her misunderstanding of Huggins, her use of the same rule statement for both this RE paragraph and the one for Williams makes sense. Her problem here was a misunderstanding of the case itself, not of the analytical framework or the genre. Although Weixin’s primary confusion may have been fairly minor, likely being linked to the segment mentioned above, this misunderstanding shaped her reading of the rest of the case. The reading comprehension difficulties that Weixin had at the beginning of the semester persisted in subsequent assignments. When the first research report worksheet for Memo I was assigned, Weixin asked to discuss this in our Week 5 individual meeting (Wk.5, Weixin, IM3, 9/18) because she had had difficulty understanding the questions on the report. We spent the entire meeting going through her vocabulary questions from the worksheet, including legal concepts such as ‘original rule of law,’ ‘common law’ (Weixin asked what the difference was between common law and a statute), and ‘element’; vocabulary related to legal research (‘practice manual,’ ‘key terms’); as well as some general vocabulary, such as ‘address’ in the clause ‘Identify the preliminary issue you have been asked to address.’ Since we were only able to cover her vocabulary questions from the first five questions of this ninequestion worksheet in our 30-minute meeting, Weixin wanted us to continue going through comprehension of the assignment at the beginning of her meeting the following week (Wk.6, Weixin, IM4, 9/25), revisiting the term ‘original rule of law.’ As we started getting into her research, however, we spent over 20 minutes of this meeting (which eventually stretched ten minutes beyond the scheduled time) reviewing her comprehension of the Santillo case, since it quickly became clear that she had not understood why the court had decided in favor of the defendants or what the plaintiff’s argument was. In the second of two individual meetings the following week (Wk.7, Weixin, IM6, 10/5), we ended up spending almost an entire hour on her comprehension of the Larsen case and then spent an additional half hour talking about grammar from her own writing. Comprehension of key sections of the Shields case came up intermittently in our Week 10 meeting (Wk.10, Weixin, IM9, 10/23), and Weixin’s discussion of the Mayflower case with Umar in the Week 12 CBI

Weix in : Underst anding Precedent but Struggling w ith L anguage

91

session (Wk.12, Weixin and Umar, CBI6, 11/7) revealed that she still had not understood some of the basic legally significant facts from that case, such as how many domain names the defendant had registered.

Overgeneralizing Discourse-Relevant Concepts Weixin also drew on outside knowledge of law that sometimes led her to project inappropriate legal frameworks into her reading of cases or the arguments in her memos. In her first case chart (8/26), comparing the facts of the client’s case with Williams, Weixin seemed to bring in outside knowledge of criminal law in identifying relevant factors. The second factor she identified, ‘hurt the victim,’ was not addressed in the case or statute, but Weixin listed this as potentially important, writing that ‘It’s a matter to determine felony conviction or not’ (Weixin, Wk.2, Case Chart: Williams, 8/26). For other crimes, serious physical injury to the victim can be an important element for distinguishing between a felony and a misdemeanor, such as in the case of assault, but it is neither an element of grand theft person nor was it a factor mentioned in either case for determining what constitutes the element of ‘taking from the person.’ Weixin’s incorporation of this factor in her case chart may thus have reflected her previous training in criminal law in China or concurrent coursework in the LL.M. program. Another place in which this use of extratextual legal frameworks occurred was in Weixin’s addition of counterarguments relating to whether or not the defendant ‘owes a duty of reasonable care’ to the client in her final draft of Memo I. These counterarguments were not based on either Larsen or Santillo, the two binding precedent cases for the memo, or the relevant section of the Restatement (Second) of Torts, a secondary legal source cited in Larsen. Instead, these arguments came from broader principles of tort law. Although Weixin’s mistaken reference to physical harm as a factor for evaluating the previous grand theft person case may have been related to either Chinese or US criminal law, the ‘reasonable care’ standard Weixin used here almost definitely came from her study of torts in the United States since this is a fairly specific term of art. Unfortunately, since this particular standard was not addressed in the law for this problem, it was not likely to have been useful in defending her argument for a US legal audience. Rather than basing her argument directly on the analysis of precedent cases, Weixin brought in legal frameworks from US tort law more broadly to analyze the client problem. This may have been one way of coping with the lexicogrammatical and reading comprehension difficulties described above. Weixin’s attempt to draw on principles from other areas of law may also have been related to what Weinstein (1998) and Mitchell (1989) have observed in the case of subexperts, which Weinstein (1998: 18) defines as ‘an expert in a related domain [who] lacks specific knowledge in the domain

92 Par t 2: Case Studies

under examination.’ In their studies, Weinstein (1998) and Mitchell (1989) both found that lawyers specializing in areas of law unrelated to a given legal problem brought in frameworks from their area of specialization in order to analyze it. Similarly, since Weixin had only begun to learn how the crime of grand theft person was defined in California law and how the tort of false light invasion of privacy was defined in Pennsylvania law, she may have been relying on her previous understanding of other typical distinctions between crimes and torts she was more familiar with in this part of her analysis. These frameworks then shaped her reading of the Williams case, leading her to focus on details that were not clearly relevant to the court and to project the factor of physical harm into the text, and influenced her development of counterarguments in Memo I.

Developmental Trajectory and Mediating Factors Weixin’s trajectory across the semester provides evidence of the use of mediational tools that had both positive and negative effects on her success with writing US legal memoranda. On the one hand, her earlier study of the common law system in her first language enabled her to quickly grasp the concept of stare decisis and to write effective rule statements and rule explanation paragraphs to explain rules derived from precedent. On the other hand, her difficulties with grammar and reading comprehension more broadly often limited her ability to fully understand the cases she was reading and to apply them to her client’s case. Her use of related legal frameworks in her analysis, such as the notion of ‘serious physical harm’ from criminal law and ‘duty of reasonable care’ from torts, may partially have been a coping strategy to help fill in the gaps in her understanding of the texts themselves. Unfortunately, this strategy was ineffective since the RA requires specific analogies between precedent case facts and the facts of her client’s case. Even when she seemed to understand these facts, however, she still struggled with the degree of precision required in the RA. Weixin’s prior learning history also seemed to play a role in her orientation to the genre. Part of her orientation to the genre as a template may have come from her prior legal training in China, in which she had learned to draft formal civil complaints using a template provided by her professor. If she understood the textbook examples in the legal writing course as being similar to the templates her previous professor had provided, this could at least partially account for her orientation to the genre. Similarly, her focus on correctness and a search for a single ‘right’ answer may have stemmed in part from the fact that much of her experience as a language learner was oriented toward TOEFL preparation. The nature of standardized exams pushes students toward identifying a single right answer from a limited range of options. If test preparation had been Weixin’s primary experience

Weix in : Underst anding Precedent but Struggling w ith L anguage

93

with language learning, her suspicion of the idea that multiple right answers could be possible or that the effectiveness of a particular form is dependent on the writer’s intended meaning was reasonable. Although Weixin made some progress with lexicogrammatical control by the end of the semester, her dedicated efforts went largely unrewarded in terms of her success on the major memorandum assignments. It is unclear whether the primary concept-based pedagogical intervention was simply outside of her ZPD or whether her orientation to in-class tasks was at odds with the goals of the course. At the end of the semester, in her exit questionnaire, when asked about how US legal writing was similar to or different from legal writing she had done in professional practice, she first mentioned that the format is different and then stated that, in her home country, they ‘pay more attention on applying rule into client case instead of comparing cases, which are similar or different from client case’ (Wk.13, Weixin, Exit Questionnaire, 11/13). Despite this improved awareness of differences between common and civil law legal analysis at the end of the semester, she was still unable to fulfill the expectations of the genre.

Chapter Summary In this chapter, we have seen how Weixin, a Chinese lawyer with a year and a half of professional experience in the field, was able to draw on her prior training and experience successfully in some ways, such as in her initial identification of rules from case law, but struggled with the course overall. Her own goals for language development appeared to focus on correctness at the individual word and sentence level, and she oriented to the genre structures that were presented in the course as templates into which categories of information could be directly inserted. This focus may have been due in part to her awareness of her own difficulty with lexicogrammatical control, as could be seen in her frequent errors with tense marking and auxiliaries as well as her challenges with distinguishing among lexicogrammatical forms. In the context of the legal writing course, which required attention to meaning at the discourse and genre levels, this focus limited her ability to progress.

6

Bader: Negotiating Genre to Express a Common Law Argument

Bader is one of two focal participants from Saudi Arabia. Among the four focal participants, Bader was the person who saw the greatest change in his grade across the term, moving from the bottom third of his class on Memo I, with a score of 72.5 (mean = 77.1, max = 104.5, min = 34, SD = 14.9, n = 23, 30th percentile), to the top quarter of his class on Memo II, with a score of 92.5 (mean = 87.3, max = 97, min = 71, SD = 6.3, n = 23, 75th percentile). Although his TOEFL score and performance in written assignments early in the course suggested that he was less proficient than many of his classmates, a closer look at his interactions during our individual meetings and the CBI sessions suggests that, on their own, these assignments did not adequately reflect his language proficiency, genre awareness, or legal analysis. Instead, the surface issues in Bader’s writing masked a deeper understanding of the course material than that of many of his classmates. These issues arose from a number of factors that seemed to be less related to either his language proficiency or understanding of key common law concepts than to his rhetorical preferences and expectations as well as his other obligations outside of the course.

Professional, Academic and Language Learning Background Among the four focal participants, Bader had the most professional experience, having worked for four years as a legal researcher at a commercial bank in Riyadh. Although Arabic was the primary language used while he was in this position, he stated that he had also used English in this job. He had completed his prior legal training in Saudi Arabia, and his areas of expertise were in banking and business law. During the LL.M. program, he hoped to learn more about energy and arbitration law, and he planned to complete an S.J.D. (Doctor of Juridical Science), or research doctorate in law, in the long term. He did not wish 94

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

95

to pursue a career in academia, however, and stated that he eventually wanted to be in a leadership position in one of Saudi Arabia’s oil and gas companies. Bader self-identified as a native speaker of Arabic and an advanced speaker of English. He was conditionally admitted to the LL.M. program in the semester prior to the study due to his low TOEFL score (80 on the iBT (Internet-based Test), which he mentioned in our Week 6 Meeting (Bader, Wk.6, IM3, 9/26)). As a condition of his admission, he was required to complete a preparatory, semester-long course in methods for US common law study, which was paired with a course on constitutional law. The course focused on developing key skills for US doctrinal law courses, such as case reading and briefing, making a course outline (a study tool commonly used by students in US law schools), and responding to typical law school exam problems (‘hypos’ or hypothetical fact patterns) in timed settings. During this semester, he also took an ESL (English as a Second Language) essay writing course emphasizing legal topics, though not legal genres. Prior to entering the LL.M. program, Bader had studied English in an intensive language program in California for 18 months. During this program, he wrote ‘articles, essays, and paragraphs’ (Bader, Initial Questionnaire, 8/29). In spite of this, when asked whether or not his writing had changed across the semester at the end of the legal writing course, he responded: ‘SURE. It has existed again’ (Bader, Exit Questionnaire, 11/14). He was an avid consumer of media in English, reading newspapers, listening to the radio, and watching television and movies in English on a regular basis. He also mentioned reading books and articles in English. He did not indicate whether or not he had ever had direct instruction in legal writing in his first language, but when asked if his prior legal training had influenced his work in the course, Bader stated that it had not because ‘the purpose and the way I used to write was different’ (Bader, Exit Questionnaire, 11/14). At the end of the semester in which the study was conducted, when Bader was asked how US legal writing was similar to or different from other kinds of English writing he had learned in the past, he stated that legal writing was used for similar kinds of purposes as general writing, mentioning persuasion, comparison, and analysis. At the same time, he saw the format of the US legal memorandum as described in the textbook and grading criteria as an important difference from writing styles he had previously learned. He mentioned that legal writing had ‘strict rules’ and left him ‘no more of free space to invent’ (Bader, Exit Questionnaire, 11/14). He stated that, by contrast, other kinds of English writing he had previously learned, such as essays, had offered him the flexibility to ‘shape [his] writing easily’ (Bader, Exit Questionnaire, 11/14).

Understanding Common Law Analysis Despite Bader’s low TOEFL score, his training in US legal analysis and academic legal genres, such as case briefs, during the previous semester

96

Par t 2: Case Studies

appeared to give him some advantages over his peers who had not had this experience. From his first case brief assignment (Wk.1, Bader, Case Brief: Williams, 8/22), he clearly understood what information he needed to extract from the case and, in his description of the court’s rationale, focused on the analogies the court made between the facts of the defendant’s case and the facts of precedent cases it cited. In his statement of the holding, he also highlighted the factor of physical attachment, which was a key part of the court’s analysis in the case. Not only was he able to extract this factor, but he also understood the case well enough to paraphrase the key points in his own words. An interesting feature of Bader’s early assignments was his tendency to include information that would already be tacitly understood by a US legal practitioner. For example, in the procedural history section of the case brief assignment mentioned above, he stated that ‘The Court of Appeal, based on applying the stare diesis [sic], found the evidences not enough to constitute grand theft charge on appellant’ (Wk.1, Bader, Case Brief: Williams, 8/22). The phrase ‘based on applying the stare [decisis]’ would be considered as stating the obvious to anyone in the legal field in the United States. This may just have served as a way for Bader to make his own understanding visible, whether to himself or to the instructor. Similarly, in Bader’s description of how the court answered the legal question in Williams, he explained that The Court answered the legal question in this case by distinguishing between the previous cases and the current one in the given facts. It did that to remove any confusing might occur out of the grand theft felony decisions that happened in McElroy and George B. (Wk.1, Bader, Defining the Rule of Law: Williams, 8/22) Although Bader provided some useful information by mentioning the precedent cases the court relied on in its decision, McElroy and In re George B, his very ‘meta’ approach to answering the question did little more than describe the process of reasoning by analogy used throughout US common law analysis. The rest of the answers he gave in this assignment provided the necessary information for defining a rule from Williams, but this particular response framed the issue much more broadly than would typically be considered effective. Bader’s explicit description of analogical reasoning showed that he was aware of the court’s approach to analysis, and this may be part of what helped him to focus so clearly on analogy in the court’s rationale in his case brief. Bader took a similar approach in identifying a preliminary legal issue in his research assignment for Pre-Memo I, posing this question at a more abstract, meta level: ‘Are the facts in Fitzgerald are similar to Huggins’s ones? How should Fitzgerald case be ruled?’ (Bader, Wk.4, Research Plan, 9/10).

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

97

Again, these issue statements accurately described the broad common law approach that he needed to take, but they did not identify the facts or elements that he needed to analyze. At the same time, Bader understood his role and the overall goal of the memo from the beginning of the semester, and more importantly, he understood how case law would help him achieve this goal.

Developing a Reading Focus and Increasing Precision in Writing While Bader missed some nuances in the cases he was reading, his overall comprehension of the cases was much better than Weixin’s and even Hong’s, despite his significantly lower TOEFL score. When he did appear to have an inaccurate understanding of the case, this seemed to come more from making incorrect inferences or speculating about the court’s rationale. For example, when I asked him about a problematic phrase he had used in his RE on Williams (Wk.3, Bader, RE2 Williams, 9/5), it seemed that this phrase reflected not so much a misunderstanding of the case as his own added interpretation of the importance of the facts. In the excerpt below, we discuss his use of the phrase ‘in a mean it usually carried’ in his description of how property needed to be attached to the victim in order for the defendant’s action to be considered ‘taking from the person’ under California’s grand theft person law. Week 3, Bader, IM 1, 9/5 [00:15:59.27] 1

AH:

2 3 4

Bader: AH:

5

Bader:

6 7

AH: Bader:

8 9 10 AH: 11 Bader: 12 AH: 13 Bader:

And then ((reading)) ‘not attached to the victim-’…Okay, this expression is a little awkward. Tell me another way to say this. Uh, ‘in a…’ ((reading Bader’s original phrase)) ‘In a mean it usually carried’ ‘The purse, while being stolen, was not attached to the victim…’ ‘as it usually carried’? Okay. For example, how is it usually carried? Uh, it could be on the shoulder, it could be on the hand, it could be on the bag that I am carrying in my uh- I carry in my hand. Uh, but if it’s- people don’t usually- i-it’s- sometimes they do put their purse uh on the passenger seat… And what if she put it on her lap? Would that change the legal conclusion? It could be, yeah. Because it’s now attached to the body, soSo does the usualness of it matter? No.

98

Par t 2: Case Studies

14 AH: Okay. 15 Bader: No. ‘In a mean it…should be carried’? No. It should be… 16 AH: Well, what did the court emphasize? What did the court emphasize? Was it about how it 17 should be- happen, or how it usually happens, or what was- what was their focus? 18 Bader: As far as I understood, that- the court- so, this situation is not carrying, or not uh being 19 carried or attached to the-to the person, in a way it considered ‘attached’ to the body, or20 AH: Uh-huh. Attached is good. 21 Bader: Yeah, attached to the- to the body. 22 AH: Uh-huh 23 Bader: So it’s not attached. So attachment is the-the consideration, or the principle that the court 24 looked at. 25 AH: That was one of the main principles. So attachment was one thing. They said it wasn’t 26 attached to her body. 27 Bader: Okay

[00:17:43.18] In our discussion, it was clear that Bader had understood what had happened in the case and what the court had said about it. He was also able to consider hypothetical alternative scenarios and what their legal implications might be. Rather than focusing on basic comprehension of the facts, our discussion centered on the interpretation of the facts and the identification of factors. When working with Bader on reading comprehension, we focused on developing close reading skills rather than basic comprehension. He understood what he needed to look for, and our work directed his attention back to a closer examination of the original case text. When Bader and I looked at his first RA (Wk.4, Bader, RA1 Huggins, 9/10) in our second individual meeting, I highlighted the phrase ‘had placed,’ since the victim had not intentionally placed his property where it was in the actual case facts. As Bader thought about what the problem with this phrase might be, he first suggested changing from the active to the passive voice and suggested alternatives in both the simple past and past perfect tense. Since I was more concerned about his lexis and comprehension of the facts than I was with syntax, I then asked him to describe what ‘had placed’ would look like: Week 4, Bader, IM 2, 9/12 [00:20:57.27] 1 2 3

But also, so- ‘had placed.’ What would that look like? What would be the situation if he had placed it partially on his- the brake and partially on his foot? Bader: (…) He had placed it- I mean uh partly on his foot and partly on the-on the brake. AH:

Bader: Negot iat ing Genre to E xpress a Common L aw Argument 4

AH:

5 6 7 8 9 10 11

Bader: AH: Bader: AH:

12 13 14 15 16 17 18 19 20

Bader: AH: Bader: AH: Bader: AH: Bader:

99

Okay. So if I say that, if this is the parking brake ((takes video recorder case, places on floor)), this is the portfolio ((picks up notebook)), that means that he had placed it- Mr. Smith went like this, he said ((raises notebook)) ‘here’s my portfolio, I’m going to put it ((places notebook partially on foot, partially on video recorder case)) here.’ #part- okay. But is that what happened? No, it was on-on the brake, but it kinda leaning on his leg Okay, so that’s part of it. So partially- ((notebook slips)) oops, sorry- part of it is that it’s really more on his leg than his foot, but also, did he intentionally go and ((takes notebook and deliberately places it in position)) pla:ce it there?= =No. ‘Was placed.’ Well, even so, ‘was placed’ suggests that someYeah -person did it Okay okay Yeah Okay. ‘Had placed’? No. Mm

[00:22:11.09] Since Bader still seemed to be having difficulty identifying the problem even after acting out the situation, I decided to make my feedback more explicit: Week 4, Bader, IM 2, 9/12 [00:22:11.09] 1 2

AH: Maybe ‘placed’ isn’t the right word. Bader: Yeah, I’m talking a- um thinking about alternatives for uh- for ‘place.’ ‘Was in’? 3 AH: ‘Was’…? 4 Bader: ‘Was o- was on the brake, leaning to…’ 5 AH: Yeah, I think, yeah, I think if you wanna talk about the final position, yeah, I think that 6 would be fine. ‘Was on the- the- was on his- partially on his leg and partially on the parking 7 brake.’ I think that would work. 8 Bader: Okay 9 AH: Uh-huh 10 Bader: Mm. Or (…) ‘in Fitzgerald, the portfolio #was on the brake and par- uh partially on his11 uh on the victim’s leg’ 12 AH: Mm-hmm. That would be fine.

[00:22:55.03] As Bader reconsidered his description of the facts, he realized that the verb ‘place’ was inaccurate (line 2). Again, Bader seemed to have a correct mental image of what had happened in the case, but he had difficulty expressing this effectively at the beginning of the semester.

100

Par t 2: Case Studies

Now that he had recognized the problem with this verb and had identified a possible alternative expression, he wanted to be sure that this expression accurately reflected his legal interpretation of the facts rather than simply an objectively correct description. When I mentioned that the expression he had suggested would emphasize the final position of the object, Bader then asked what he could say if he wanted to focus on the victim’s action. We discussed options such as ‘knock’ or ‘accidentally hit’ to describe the victim’s movement, which caused the portfolio to move, as well as ‘slide’ to describe the movement of the portfolio itself without reference to an agent that caused this motion. Finally, Bader decided that he wanted to emphasize the final position of the stolen portfolio rather than the movement of the victim or portfolio: Week 4, Bader, IM 2, 9/12 [00:23:43.17] 1 AH: So it depends on what you wanna emphasize 2 Bader: Okay. I will go to the final- uh final result, that the portfolio was on the brake and partly 3 on- on the victim’s bo- uh leg 4 AH: Mm-hmm and I think because we’re talking about attachment, that makes a lot of sense.

[00:24:00.23] Again, Bader spent over half a minute making notes on his assignment before indicating that he was ready to move on. He was concerned with accurately portraying his own construal of the events and highlighting what he believed to be the key aspects of these events. He was not looking for a single ‘right’ answer, but wanted to know what his options were and how these would reflect different shades of meaning. This was an orientation to lexicogrammar that remained consistent throughout the semester.

‘‫ ’دﺟﺎج ﻣﺸﻮي‬and the Mediating Role of Affect Although Bader appeared to have some confusion about the scope of the rule that should have been included in his rule statements as well as how to effectively reflect the holding of the case through the grammar of the sentence, his overall understanding of this part-genre was better than that of many of his peers. It came as a surprise, then, that his responses to the rule statement evaluation exercise in CBI 1 at first seemed fairly similar to those of Hong, who focused on superficial structural aspects of the genre rather than meaning. In fact, some of their responses were identical. In the second sample rule statement on the handout, for example, both Hong and Bader focused exclusively on the length of the sentence, while their partners

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

101

commented more on content and organization. Bader’s discussion of a rule statement with Maqsood illustrates this: Week 4, Bader and Maqsood, CBI 1, 9/12 [00:30:04.10] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33

Maqsood: Okay. ((reading)) ‘The act of taking a purse from the passenger seat of a car does not constitute grand theft person…at least…’ I think this is good. Really good. Bader: Okay Maqsood: I th- I like this one. It’s a little bit all over the place, butBader: Okay. ((reading)) ‘The act of taking a purse from the passenger seat (.) of’- ‘does not constitute grand theft person under’- ‘at least where the victim had laid the purse aside, because it is not in some upon, attached to the person’- ‘even though it is taken from the actual and immediate control’= Maqsood: =then #we #can [#make #it Bader: [It’s too long. Maqsood: That’s it. Number one, it’s too longBader: Too long Maqsood: Number two, I think that they started with the- that they started with the rule and they ended with the law. I think you should start with the law and end with the rule. Bader: Yeah (…) Maqsood: Oh boy. What do you think? Bader: Yeah Maqsood: Yeah, I mean, you start withBader: Shorten Maqsood: -you start with uh- ‘well, this is section 487’ Bader: Yeah Maqsood: And then you go to ‘this is what People versus Williams held’ Bader: Yeah Maqsood: Instead of saying ‘this is what People versus Williams held, but it’s not’- ‘it doesn’t satisfy the conditions of’- Good points: includesBader: Every fact is recorded Maqsood: Mm-hmm Bader: Eh Maqsood: Every important fact included Bader: Need-needs to improve (..) make shorter. Maqsood: It sure needs to be shorter Bader: And then to state (..) the (…) before the fact (…)

[00:32:26.02] Like Hong, Bader focused on sentence length but did not describe which information specifically might need to be omitted. Similarly, for the next rule statement on the worksheet, Bader’s only contribution to the evaluation of the sentence was stating that one of its merits was that it was short, while

102

Par t 2: Case Studies

his partner, Maqsood, mentioned specific issues with not incorporating enough information from the case and not creating a precise enough definition. Bader’s final utterance in the excerpt above, which seems to be a paraphrase of Maqsood’s response, was never fully elaborated, perhaps because he was only repeating it aloud to keep it in mind as he wrote. After this sentence, neither of them said anything for ten seconds, and then Bader began to read the next rule statement on the handout aloud. During the majority of the rule statement evaluation exercise, Maqsood took the lead, and Bader responded only minimally. This was uncharacteristic for Bader, whose seniority and overall confidence generally made him a leader or at least an equal partner in his pair work in CBI sessions. During most of the first exercise earlier in this session, he had been the one who was directing the flow of the activity, reading the questions from the slides and volunteering answers first. Slowly, though, Maqsood seemed to take over, redirecting the flow of the activity when he felt a question hadn’t been fully addressed and often both rephrasing and elaborating on Bader’s responses. As this happened, Bader’s responses became shorter and more simplistic. At the beginning of the first exercise, Bader would often launch into his own response immediately after reading the question, or even cut Maqsood off mid-sentence to finish answering a question for him. By the last question in the first exercise, however, Bader seemed to be stepping back to allow Maqsood to lead: Week 4, Bader and Maqsood, CBI 1, 9/12 [00:16:40.10] 1

Okay. ((reading)) ‘How does’-the last question- ‘How does this reta- how does this relate 2 to the principle ‘Precedents set rules’?’ ‘Precedents set rules.’ 3 Maqsood: ##rule ‘Cause- because I think that because precedents provide what the law is, and it4 they explain the law. So in order to be able to uh- to apply the law 5 Bader: Mm-hmm 6 Maqsood: You need to tell exactly what the law is, and that’s what- that’s what the rule 7 explanation paragraph does. It explains what the law is so you can compare it to your case. 8 Bader: Yeah, you’re right. 9 Maqsood: Do you wanna add anything to that? 10 Bader: No, that’s fine, that-that’s all. Bader:

[00:17:14.26] When the activity shifted to the rule statement evaluation exercise, Maqsood now became the first person to answer each question, and Bader’s responses became shorter and frequently just paraphrased ideas that Maqsood had already expressed, often ineffectively, as in the earlier extract where he ended by trailing off (Bader: ‘And then to state (..) the (…) before the fact (…).’).

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

103

This changed suddenly in the fourth rule statement evaluation question. In evaluating the fourth and final rule statement in the second exercise, Bader’s response was much more sophisticated: Week 4, Bader and Maqsood, CBI 1, 9/12 [00:36:29.15] 1 2 3 4 5 6 7 8 9

Maqsood: What are the good points? Bader: The good points is that the important factors are included here Maqsood: Mm-hmm Bader: but it needs to improve the elements that we don’t need in the rule statement, such as theuh having the precedent McElroy- McElroy Maqsood: McElroy Bader: Ye-yeah, McElroy, and the-the citation is not necessarily here. Maqsood: Yeah, absolutely. #A #little or some irrelevance Bader: Yeah

[00:36:57.24] Bader’s evaluation of this rule statement accurately identified specific strong and weak points of the student sample. His answer here was much more congruent with his overall performance in the class. What brought about this change in his responses, which became less elaborate from the first part of the first exercise through most of the second exercise and then returned to their usual level of sophistication toward the end of the session? The answer may have to do with affect. Maqsood was an expert speaker of English from Pakistan. He expressed himself clearly and confidently in English, and, unlike Bader, he had been trained in a legal system based on common law. The activities in class seemed to come easily to him. Bader, on the other hand, was grappling with a legal system with which he was much less familiar and a language with which he was not entirely confident. As the session went on, Bader seemed to be taking fewer and fewer risks of showing these potential vulnerabilities. Given that he was older and more professionally established than Maqsood, this may have been a sensitive point for him. Bader’s shift back to confidence in his responses in his evaluation of rule statement four came after an off-task conversation with Maqsood. When another student teased Maqsood for his handwriting, he called it ‘chicken scratch,’ which Bader said was an expression that was also used in Arabic. This then spurred a conversation around the word ‘chicken.’ Week 4, Bader and Maqsood, CBI 1, 9/12 [00:35:02.00] 1 2

Maqsood: What do you call chicken in Arabic? Bader: ‘‫( ’دﺟﺎج‬dajaj, ‘chicken’)

104 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Par t 2: Case Studies Maqsood: !‫( دﺟﺎج ﻣﺸﻮي‬dajaj mashwi, ‘grilled chicken’) [((sucks teeth)) Bader: [@@@@ Maqsood: I miss dajaj mashwi so much! @[@@] Bader: [@@]@@@ Maqsood: I remember I used to go every Friday to the market and get dajaj mashwi. It was delicious. Bader: Where? Where was it? Maqsood: Iraq Bader: Iraq? How-how-how many years? Maqsood: ‫( ﺛﻼث ﺳﻨﻮات‬thalath sanawat, ‘three years’) Bader: From? Until? Maqsood: ‫اﻟﻒ وﻣﯿﺔ واﺛﻨﯿﻦ وﺛﺎﻣﻨﯿﻦ اﻟﻰ اﻟﻔﯿﻦ واﺛﻨﯿﻦ‬....‫اﻟﻒ وﻣﯿﺔ‬....‫( اﻟﻔﯿﻦ و‬alfeen ooo… alf wa miah…alf wa miah wa athnean wa themanen ela alfeen wa eithneen, ‘2000 (…) 1100 (…) 1182 to 2002’). Bader: ‫ اﻟﻔﯿﻦ واﺛﻨﯿﻦ‬ahm (alfeen wa eithneen, ahm, ‘two thousand and two, ahm’) Maqsood: No, ‫ ﺗﺴﻌﺔ وﺗﺴﻌﯿﻦ‬not ‫اﻟﻔﯿﻦ‬. (no, tis’aa wa tis’aeen not alfeen, ‘no, 99 not 2000’) Bader: Yeah, I got, I got. When you- when you said ‫ﺛﻼﺛﺔ‬ (thalatha, ‘three’), I got that. Maqsood: Now we know I wasn’t alive in the twelfth century= Bader: =@@@

[00:35:56.10] In this segment, Maqsood was speaking a lower prestige, colloquial version of Arabic, rather than Modern Standard Arabic, as can be seen in his pronunciation of the number 100, which he says as ‘‫( ’ﻣﯿﺔ‬miah) rather than ‘‫’ﻣﺎﺋﺔ‬ (ma’eh) (B. M. Al Thowaini, personal communication, 26 January 2013). While he seemed to be fairly proficient in this dialect of Arabic, his L3, he struggled with formulating the numbers to explain how long he had lived in Iraq, pausing frequently and accidentally using the wrong century. This exchange was punctuated by laughter from both speakers, and this segment, along with the ‘chicken scratch’ conversation, seemed to improve the rapport between the two participants. When they shifted back to the task immediately after this exchange, Bader’s analysis of the final rule statement from the handout improved significantly, as we saw in the second to last excerpt above ([00:36:29.15]–[00:36:57.24]). This context is critical to interpreting Bader’s responses in CBI 1, and specifically for seeing how he understood the rule statement. Without taking into account the affective shifts that occurred throughout this session, it would have seemed that Bader’s understanding was similar to Hong’s. If we take affect into account, however, we get a very different picture of Bader’s understanding in Week 4. Taking Bader’s best explanations from CBI 1, from the moments at the end of the session when he seemed most at ease with his partner, as being indicative of his overall level, it becomes clear that he was able to accurately identify key elements of the rule statement and to effectively evaluate the writing of other students. More importantly, he connected the meaning of the rule statement to the court’s rationale and holding.

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

105

Challenges with Genre Conventions: Explaining a Common Law Rule Bader’s trajectory is a little confusing at first glance. The content of Bader’s rule explanation paragraphs was good overall, and he clearly understood how the parts of the genre connected with common law meaning. Instead, he seemed to struggle with paragraph organization, which was all the more unusual considering that the rule explanation paragraph format provided in the textbook essentially gave a fill-in-the-blanks template that should have been easy to master. The expected move structure for this genre, as described in the textbook, took the following form: (1) rule statement, (2) case facts, (3) holding and (4) rationale (see Chapter 4 for more on this part-genre). Students in the course were graded in part on their adherence to this format. Only four of Bader’s eleven rule explanation paragraphs followed this required format. These four correctly-structured paragraphs emerged intermittently across the semester, at Week 8, in both RE paragraphs for his final draft of Memo I (Wk.8, RE3 Santillo and RE1 Larsen, 10/8), in his first revision of the Shields RE for Memo II in Week 11 (Wk.11, RE2 Shields, 10/29), and his first submitted draft of an RE on Mayflower for his final draft of Memo II in Week 14 (Wk.14, RE1 Mayflower, 11/19). While in some cases he revised correctly formatted drafts into incorrect formats, in others, he used the correct format for one of two REs in a given assignment but not for the other. There were two major structural issues with Bader’s REs. The first was the omission of rationale in two of his REs during the pre-intervention period, specifically in his Week 3 and Week 4 assignments (RE2 Williams and RE1 Huggins, respectively). The second, and more persistent, structural variation that Bader introduced in his rule explanation paragraphs was inverting the holding and case facts sections, placing the holding before the facts. This occurred in five out of his 11 total REs, in Weeks 2 (RE1 Williams), 6 (RE1 Santillo), 7 (RE2 Santillo, which was identical to his first RE on this case), 10 (RE1 Shields), and arguably 14 (RE3 Shields, in which the rule statement is written as a holding).

Pre-Memo I Bader’s first rule explanation paragraph (Wk.2, Bader, RE1 Williams, 8/27) started out well, with a fairly effective rule statement. In this rule statement, he incorporated the key factor of attachment and stated this rule as a general principle in the present tense, although he did not accurately reflect the negative holding of the case through lexicogrammatical negation. Rather than following the rule statement with the key case facts, however, he stated the holding next (‘The court held in William that the theft of a bag

106

Par t 2: Case Studies

from a victim car seat is not considered as a grand theft because the purse was not attached to the victim person directly.’). He then followed this with a single sentence of case facts (‘In William, the victim was sitting on the driver seat after putting the purse on the passenger seat when the thief broke into the car and stole the purse.’), and finally concluded with a sentence that seemed like either a continuation of the case facts or a very brief reference to his understanding of the court’s rationale (‘The purse while being stolen was not attached to the victim in a mean it usually carried.’). Bader’s rule explanation flipped the holding and case facts sections and, like Hong’s first rule explanation on Williams, provided little to no rationale. Unlike Hong, however, the lack of rationale in Bader’s rule explanation did not reflect a lack of understanding of its importance, as both his Williams case brief and later explanations in individual meetings and CBI demonstrated. This inversion of the holding and case facts reappeared in Bader’s first drafts and unrevised ‘second’ drafts throughout the term. It was the first structure he used for his first RE in the semester, and it was the default structure he returned to for his REs at the beginning of the Memo I and Memo II assignments. This particular variation on the RE paragraph format was also unique to Bader. While some structural errors were common across many students in the class, such as omitting or truncating the rationale section or rule statement, Bader’s inversion of the case facts and holding did not appear among other students in the class. While Bader’s revision of his first rule explanation in Week 3 (Wk.3, Bader, RE2 Williams, 9/5) incorporated some missing rationale, likely following his law TA’s comments, the structure of the paragraph was even further off from the expected structure than the first draft was. Bader moved the case facts from the previous draft to the very beginning of the paragraph and followed this with what appeared to be the court’s rationale and holding: The Supreme Court decided in McElroy that victim pants were not on the victim body even though they were under his head, so the thief is not in charge of the grand theft person punishment. Unlike the Supreme Court decision, the Court in this case held that laying the purse aside on the car seat not by any mean an attached article to the victim’s person. (Wk.3, Bader, RE2 Williams, 9/5) In this section, he described the rationale from the precedent, McElroy, which the Williams court relied on in its decision, and then a perceived disanalogy between the two cases. Following the section above, he added his original rule statement from the previous draft and then ended the paragraph with his original formulation of the court’s holding. Bader was conscious of which parts of the paragraph he was placing where, and he believed that he had responded to his law TA’s feedback in restructuring the paragraph. When I asked him to tell me what revisions he

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

107

had made between his first and second draft of the Williams rule explanation in our first individual meeting, it was evident that he had made the above changes consciously: Week 3, Bader, IM 1, 9/5 [00:00:00.00] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Bader: Okay, the change that I made from the first draft AH: Mm-hmm Bader: First of all, I replaced- or rewrite the paragraph in the or- I changed the order. AH: Okay Bader: I started in the first draft with-uh with-uh with the code, with the code and what the code means and requires. AH: Mm-hmm Bader: Then, I went to the facts. Here, in the second draft I started with the facts, then I went to the court’s holding and rationale. Then, I ended with uh the code and what-what it requires. That’s the first thing. Re-order, or- I put the paragraph in a different order. AH: Mm-hmm Bader: Second thing, I added the rationale – the court’s rationale as to the background, to the paragraph and uh I removed a part or uh a mean of approach on the Williams facts, I thought it was okay to add it to the court’s rationale, but it turned out not that necessary to include it in thein my paragraph, so I forgot the name of the guy that- who reviewed my-uh my work. AH: Okay Bader: He suggested me to- suggested me remove that part from the paragraph, and I did.

[00:01:28.14] In this excerpt, it sounded at first like Bader’s description of the rule statement as ‘what the code means and requires’ (lines 6–7) was similar to Hong’s description of the rule statement’s purpose being to ‘give the statutes’ (Wk.4, Hong, IM1, 9/11). Bader’s rule statement itself, however, incorporated key rationale from the Williams case, specifically the factor of physical attachment. This differed significantly from Hong’s rule statement for Williams, which only paraphrased the original statute. Despite their similar verbal explanations of their understanding, their performance of this understanding in their writing suggested that Bader actually had a much better idea of what was expected in the genre. Instead, the place where there seemed to be a gap in Bader’s understanding relative to both Hong and Weixin was in his understanding of the expected format of the rule explanation paragraph. These problems with paragraph formatting created a surface perception of disorganization that undermined his ability to demonstrate his understanding of the course material.

108

Par t 2: Case Studies

Memo I Although Bader had asked me directly about differences between the format of the RE and RA in our Week 3 individual meeting and had received negative feedback on this paragraph structure from his law TA, he continued to have difficulty recognizing this problem in his own writing. When it persisted in his first RE for Memo I in Week 6 (Wk.6, RE1 Santillo, 9/24), I was a little surprised. I asked him to explain his understanding of the structure of the RE paragraph to me. Week 6, Bader, IM 3, 9/26 [00:16:26.03] 1

AH:

2 3 4 5 6 7 8 9 10 11 12

Bader: AH: Bader: AH: Bader: AH: Bader: AH: Bader: AH: Bader:

13 14 15 16 17 18

AH: Bader: AH: Bader: AH:

19 20 21 22 23 24 25

Bader: AH: Bader: AH: Bader: AH:

26 Bader:

So again for an RE, start out with the rule statement and then what’s the next part? Uh in the rule statement? Mm-hmm. So after the rule statement, then we would have… Ah. The rule statement, the court’s holding? Uh that comes later Okay. The rule statement and um the statute? TheMm… HoldingTwo parts missing. Yeah, I know that after the holding is the uh rationale Perfect. Okay But before the rationale- before the holding uh the-the-the rule statement? It has something to do with the facts? Key facts Key facts, yeah Yeah Key facts And so I think that’s something else that might be missing here, because we kind of jump right into the decision Yeah, yeah Yeah Mm So make sure you’ve still got the case facts. Okay Kind of imagine that your reader has never read this case before Yeah

[00:17:36.24] At this point in the semester, most students could recite the required parts of the RE paragraph in order with little trouble, whether or not they actually used them effectively in their writing. Again, it seemed unusual that Bader would have so much difficulty with this in both his writing and in his verbal explanation. In order to try to justify the structure of the genre, I explained that the facts would help the reader develop a context for understanding the holding, and that this was why they would come first in the paragraph.

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

109

Bader spent 13 seconds writing down notes after the exchange above, and eventually revised his final draft accordingly. In the CBI session held later on the same day as the excerpt above (Wk.6, CBI 3, Bader and Hong, 9/26), Bader no longer seemed confused about the structure of the RE paragraph. As he and Hong tried to identify a series of student sample paragraphs in class, he correctly identified the rule explanation paragraph even when Hong still believed that it came from a different part of the memo (specifically, the thesis paragraph). As they looked at the paragraph more closely, he listed the parts that they needed to identify in order for it to be an RE: Week 6, CBI 3, Bader and Hong, 9/26 [00:11:19.27] 1 2 3 4 5 6 7 8 9

Bader: Hong: Bader: Hong: Bader: Hong: Bader: Hong: Bader:

So it’s rule ex- rule explanation. (…) Rule statementRule statement um Yeah, the um first-the first sentence. Precedent facts yeah. Precedent (.) case facts. ‘Kay this holding. Rationale. It all has. Precedent facts? Yes Holding? (…) Rationale- does it have the rationale? Yeah. ‘reasoned that’ Okay

[00:12:06.00] In this segment, Bader accurately outlined the four sections of the RE in the expected order and could recognize them as correct in an exemplary student sample. While he was likely referring to the structure as it was outlined on the board at the front of the classroom, his recognition of each part within the paragraph itself demonstrates progress in his understanding of the genre. Unlike in our individual meeting earlier that day, Bader put a strong emphasis on making sure that the precedent case facts were included immediately after the rule statement and before the holding. In spite of this, Bader did not revise the structure of his own RE on Santillo and instead submitted an identical draft instead of a true revision the following week. In his final draft of Memo I, however, he finally revised the paragraph.

Memo II At the beginning of Memo II, Bader’s inverted holding-facts structure came up again. Despite this, he believed that he had finally structured his RE correctly in our Week 10 individual meeting: Week 10, Bader, IM5, 10/24 [00:04:02.01] 1 2

Bader: Uh what I got here in my rule uh explanation- I hope that I-I write it at least uh completed the requirements- the required elements in the rule ex- uh- explanation

110 3 4 5

Par t 2: Case Studies AH: AH:

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Bader: AH: Bader: AH: Bader: AH: Bader: AH: Bader: AH: Bader: AH: Bader: AH: Bader:

23 24 25 26 27 28

AH: Bader: AH: Bader: AH:

29 Bader: 30 31 32 33

AH: Bader: AH: Bader:

Alright. I’ll #take #a #look ((AH reads Bader’s RE1 Shields silently)) I think it’s good, I think you’ve got a good rule statement. It’s um- (.) you’ve mentioned bad faith, I think that’s good. You’ve identified the correct statute um- so what I’m seeing right here, is I’m seeing rule statement, and then I’m seeing the holding Mm-hmm And then I’m seeing the case facts Mm-hmm And then I’m seeing the rationale. Is that the way that youYeah You did? Yeah, that’s what I tried to do. Mm-hmm. Usually, we’d expect to see the case factsBefore the holding? ((nods)) Before the holding Okay Yeah Okay Um I-is it the way to put holding uh front of-in front of the case facts to-to show the road map for- for our-where I’m going? In theory, that’s what your rule statement should do. Ah, I see. I see. Okay Mm-hmm Okay okay It should indicate the holding through the language that you’re using um Okay. So after the-after the rule statement, I should say or state the facts that the((nods)) Okay- that the court built its decision on it. Mm-hmm ((nods)) Okay

[00:05:41.18] This excerpt suggests that Bader’s use of the inverted holding-case facts structure in his REs was intentional. First of all, when I described the parts of his RE as I understood them, he confirmed that this was the structure he had intended (lines 6–14). When I started to say that the case facts should come before the holding, he completed the sentence for me (lines 15–16), showing that he was aware of the recommended structure. Although he understood that this was what we were looking for in his writing, he questioned this structure, feeling that putting the holding first would be more effective since it would ‘show the road map’ for the rest of the paragraph (lines 22–23). His use of the term ‘road map’ here reflects the way that rhetorical organization is discussed in law school in the US and in the legal writing course specifically. Rather than providing evidence of an inability to master basic genre structures, then, Bader’s use of this alternative structure appears to have been a conscious choice that he believed conformed to broader norms of US legal discourse. He understood many of these norms well and consistently

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

111

related them to the language he used when he explained the genre in individual meetings and CBI sessions. Furthermore, in the three rule explanations following this meeting, he used the required structure with relative success. Bader made agentive choices about his writing and based his rhetorical decisions on what he felt to be legitimate reasons rather than strictly following authority for authority’s sake. It wasn’t until Bader had a chance to discuss his own justification for the modified paragraph format he was using that he was willing to accept the justification provided for the expected structure. Until this point, he kept using the structure that made more sense to him as his default. Once the required structure was made clearly meaningful and legitimate to him, he embraced it.

Rule Statements and the Scope of a Common Law Rule Pre-Memo I Bader’s reorganization of the RE sheds some light on his understanding of the rule statement as well. The TA comment he mentioned in our Week 3 individual meeting had instructed him to move the case facts section from his first RE, which the TA had highlighted, before the holding. By moving the case facts section to the beginning of the paragraph in his revision, he had actually moved it before both the rule statement and the holding. In our Week 3 meeting, he grouped his original rule statement and holding together as a single unit, referring to them as ‘what the code means and requires’ and stating that he had moved this section to the end of the paragraph. For Bader, it seemed that the holding and rule statement were not clearly distinguishable, though he did refer to an entirely different sentence as the ‘holding’ at the beginning of our first individual meeting in Week 3. The rule statement is meant to incorporate the court’s holding indirectly through the structure of the sentence. In a sense, then, Bader’s seeming conflation of the rule statement and holding reflected not a serious gap in his understanding, but rather a sign that he was a step ahead of his classmates in understanding what a rule statement is intended to achieve. At the same time, while the omission of lexicogrammatical negation in this sentence did not clearly indicate the court’s holding in the case, Bader’s attachment of a followup holding sentence to the rule statement may have been his way of compensating for this. Rather than implicitly communicating the court’s holding through the grammar of the rule statement itself, Bader’s initial attempts at the rule statement relied on a supplemental sentence that explicitly stated what the court held. Since Bader still did not have the linguistic tools to combine all of this information into a single sentence in a way that he felt comfortable with, he achieved the same communicative goal through different linguistic means that, while effective, fell outside of the expectations of the

112

Par t 2: Case Studies

genre. The fact that he referred to a different, added sentence, ‘Unlike the Supreme Court decision, the Court in this case held that laying the purse aside on the car seat not by any mean an attached article to the victim’s person,’ as the holding, rather than the follow-up sentence that he attached to the rule statement, provides further evidence that what originally looked like his holding sentence was actually intended to be part of his rule statement. In discussing Williams, when I asked Bader about the function of the rule statement, his explanation confirmed this: Week 3, Bader, IM 1, 9/5 [00:02:07.00] 1

AH:

2

Bader:

3 4 5 6 7 8 9

AH: Bader: AH: Bader: AH: Bader:

10 11 AH: 12 13 Bader: 14 AH: 15 16 Bader: 17 AH: 18 Bader: 19 AH: 20 Bader:

Okay. And so do you know what a rule statement does or what its function is? Uh, it’s- it’s- in somehow it shows the court’s uh holding or the court’s uh the-the case in answer, what’s it all about Mm-hmm I mean and what’s the question, what’s the issue in that case. Mm-hmm According to the court Yeah That’s what I thought and that’s what I did the first draft but I don’t know why the guy suggested to introduce the paragraph with the facts. Um, that’s unusual. Okay. Uh-ah-I’ll ask to see uh who your TA is, but usually we start with some kind of rule statement Okay Um, and so you’re right that it would reference the code. So is this your original rule statement here? Yeah Okay. Until here or until here? Uh…until here, but uh here wh- uh… Yeah. From here, I added some explanation to-toOkay To understand uh the rule better.

[00:03:14.10] When I asked him where his rule statement began and ended, there was some confusion. He indicated that the first sentence was the actual rule statement, but that the sentence I had identified as the original holding provided ‘some explanation to understand the rule better.’ After I explained to him that the grammar of the rule statement itself needed to indicate the holding, he was able to self-correct easily: Week 3, Bader, IM 1, 9/5 1 [00:06:00.05] 2 AH: So, we want the grammar of the sentence to reflect the holding in that case. 3 Bader: Okay, so I should have it on negative?

Bader: Negot iat ing Genre to E xpress a Common L aw Argument 4 5 6 7 8 9

AH: Bader: AH: Bader:

113

Exactly. Yeah. Okay. ‘Under California Penal Code, theft of property is not consideredMm-hmm -not considered grand theft under certain conditions, being attached to victim’s body is one of them.’ Uh, I didn’t withdraw this-this principle from the-the code itself. It’s most likely to be the court’s rationale.

[00:06:57.12] Again, Bader’s explanation of what he had intended to do, specifically incorporating the court’s rationale rather than simply paraphrasing the original statute, was exactly right. Moreover, he was able to take the lead on rephrasing his rule statement and did not need the extended pedagogical support that Hong did during her first rule statement co-construction sequence. From our first individual meeting, Bader was quickly making progress with minimal intervention. Although I tried to direct his attention to further revising his rule statement, in which the introduced negation had changed the meaning in an important way, Bader then went a step beyond this, asking why it would be preferable to phrase this rule statement in the negative rather than in the affirmative, since the affirmative sounds more natural. Week 3, Bader, IM 1, 9/5 [00:07:16.27] 1 2 3 4 5 6 7 8 9 10 11 12 13

Bader: Okay. So what’s the mistake if I have it as a positive, in a positive way? Not negative. What I mean here is that this-this crime is considered as a grand theft person if- uh under certain cir- conditions. Or in maybe, if its meaning is- uh associated with uh many factors. Being attached to the body, or the victim’s body is one of-of those requirements to consider such a crime as grand theft. AH: And you’re right, the meaning is the same. You’re rightBader: Oh, is..? AH: if I phrase it in the negative or the positive Bader: Yeah AH: the meaning is the same. Bader: Okay AH: But it’s kind of a convention, because that way the reader – because what your reader is… Bader: Okay, I-I-I got the point. I got the point.

[00:08:02.27] This exchange presented a marked difference from other participants. Bader engaged actively in understanding the genre and did not simply accept corrections at face value. Bader wanted to understand not only what was

114

Par t 2: Case Studies

expected, but why the format used one form rather than another. He seemed to be feeling out the boundaries of the genre, trying to get a sense of how much room he had to improvise within its constraints. Bader was actively interested in meaning and went beyond just finding the right answer. Understanding why one form was used rather than another gave him the tools to do this more effectively as the semester went on.

Memo I In his Week 5 case chart for Memo I, the rule statements that Bader identified for both Larsen and Santillo were effective and accurate. For Larsen, he wrote, ‘The factor of falsity in the false light claim can occur if the truth is presented in misleading way,’ and for Santillo, ‘The merely confirmation of information is not false light invasion of privacy’ (Wk.5, Bader, Memo I Case Chart: Falsity, 9/17). Both of these rule statements drew out rules from case law and accurately reflected the court’s rationale. In fact, in these rule statements, Bader also accurately showed the court’s holding through the negation of the sentence for Santillo and the use of an affirmative construction for Larsen. While there were some minor grammatical errors in both sentences, a minor problem with terminology (‘factor’ rather than ‘element’) in the Larsen rule statement, and an omission of reference to the element of falsity in the Santillo rule statement, they were excellent overall. What was strange, then, was that Bader did not choose to use either of them directly in the rule explanations he submitted for these cases in the weeks that followed. Instead, his next two rule statements, in RE1 Santillo and RE2 Santillo, focused on the original rule of law as described in the Restatement (Second) of Torts, a secondary legal source, rather than on the processed rule from the case itself. Rather than identifying factors the Santillo court used in evaluating whether or not the element of falsity was met, these two rule statements simply listed two of the elements of the original tort: falsity and publicity. This at first looked much like Hong’s use of an excellent rule statement in her case chart on Larsen even though she was unable to summarize the case at all in our individual meeting. Bader, however, appeared to understand Santillo based on our discussion of the case during our Week 6 individual meeting. In the same meeting, Bader again accurately identified the function of the rule statement as relating to a rule derived from case law rather than a statute: Week 6, Bader, IM 3, 9/26 [00:03:48.05] 1 AH:

How do you understand what the rule statement should be doing in a rule explanation? 2 Bader: I thought that I understand the rule explanation is how the courts ruled in previous cases,

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

115

3

what’s the result from those cases. What’s the rule that we can withdraw from those cases. 4 AH: Exactly. And specifically on what? 5 Bader: On sim-similar facts. 6 AH: Okay, and so, since we’re only focusing on falsity, do we wanna know about all of false 7 light invasion of privacy or…? 8 Bader: No, just wha-what’s related to the falsity= 9 AH: =Exactly

[00:04:21.07] Unlike Hong at this point in the semester, Bader understood both the case and the rationale behind the genre, yet he seemed to make the same mistake as she did in his text this week. Examining Bader’s use of the Restatement (Second) of Torts in his preliminary assignments may help explain why this happened. In his Memo I Research Report (Wk.4, 9/12), Bader made no mention whatsoever of the Restatement and did not initially identify the primary cases that he and the other students were expected to find. In his case chart the next week (Wk.5, Case Chart, 9/17), he mentioned the Restatement in connection with his rule statement for the Curran case, on a different element, but did not seem to associate it with either Larsen or Santillo. Bader’s sudden use of the Restatement in Week 6 to replace his original, excellent rule statements for these cases may simply have been the result of his finally having identified the Restatement as a relevant document for these cases as well. Since the Restatement is based on legal scholars’ interpretation of principles arising from case law, Bader may have misunderstood the role of the Restatement with regard to formulating a processed rule in the rule explanation. Bader’s use of the plurals ‘courts’ and ‘cases’ in his Week 6 individual meeting to describe the rule explanation (‘I understand the rule explanation is how the courts ruled in previous cases, what’s the result from those cases. What’s the rule that we can withdraw from those cases’) could thus be interpreted in a few different ways. It could simply be that he was making a grammar or pronunciation error here, accidentally pluralizing words that he meant to be singular. In this case, he may have been having trouble expressing his idea as a generalization, using ‘the’ for generic, non-specific reference before ‘rule explanation’ together with plurals to indicate this. If so, his intended meaning may have been that rule explanations in general talk about how courts ruled in previous cases. At the same time, his mixing of singular and plural forms may also have been intentional, indicating that he was actually explaining the RE as not being about a single case, but about a single, synthesized common law rule from many cases – which is precisely what the Restatement (Second) of Torts provides. His use of the Restatement as the basis for his rule statement, then, may have been more related to confusion regarding whether the case law addressed in the rule statement should be

116

Par t 2: Case Studies

comprehensive – a synthesized rule from the Restatement – or related only to the specific case addressed in the paragraph. In CBI 4 in Week 7, Bader and his partner, Kaewta, evaluated a set of three rule statements that similarly focused too heavily on the Restatement and included elements that were not at issue for the client, specifically publicity and offensiveness. Although Kaewta recognized this problem immediately, Bader seemed hesitant to agree with her at first: Week 7, Bader and Kaewta, CBI 4, 10/3 [00:13:39.18] 1

Bader:

2 3 4 5 6 7

Bader: Kaewta: Bader:

8

Kaewta:

Kaewta:

9 Bader: 10 Kaewta: 11 12 Bader: 13 Kaewta: 14 Bader:

#Not a statement. ((reading)) ‘A publication is actionable un[der false light invasion of privacy’] [I think must be-] this one is kind of focused on the offensive. Okay But for our homework, we have to focus on falsity. U::m and eh your-your suggestion that this one is focusing on the publicit-publicity? No, it’s like- actually they- uh they have to more [uh emphasize [information? Emphasize. They have to more emphasize it’s falsity, but here it’s kind of the mix betweenMm -#offensive and falsity. Okay okay

[00:14:25.20] Although his verbal explanation in the previous individual meeting excerpt from Week 6 suggested that he understood the need to focus on falsity only, this error did not seem obvious to him when it appeared in the student samples analyzed in class. After re-reading the three student samples, Bader started to recognize that two of the elements, publicity and offensiveness, were unnecessary. As Kaewta reiterated the idea that the student samples were too broadly paraphrasing the Restatement, Bader seemed more and more convinced by her argument that this was the problem with the student samples. Week 7, Bader and Kaewta, CBI 4, 10/3 [00:15:16.25] 1 2 3

Kaewta: I think it’s too broad Bader: Both of them, I mean, both of them go to the offensive and the publications Kaewta: Mm-hmm

Bader: Negot iat ing Genre to E xpress a Common L aw Argument 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Bader: Kaewta: Bader: Kaewta: Bader: Kaewta: Bader: Kaewta: Bader: Kaewta: Bader: Kaewta: Bader: Kaewta: Bader: Kaewta: Bader: Kaewta: Bader: Kaewta: Bader: Kaewta: Bader:

117

Not focusing on= =and[ this one is like] [bro- bro] okay Yeah, this one is like broadly. It’s so broad= =So-so broad It’s just general rule for the (.) Restatement Okay This one. So it doesn’t emphasize or give any elements‘Under section-’ okay -under the falsity Okay. So your suggestion is this one is going too broad, huh? Mm-hmm. Too general. Too general Yeah Are- both of them as well, huh? Mm-hmm. (..) Because I think rule statementYeah -should be more= =should be focused= =yeah more specific In one element Yeah Okay

[00:16:05.02] Later in the full-class discussion of these same samples, Bader volunteered to explain the problem with these sentences to the whole class: Week 7, Full-class discussion, CBI 4, 10/3 [00:31:52.08] 1 AH: Why is this not a rule statement? 2 Bader: I think uh they included every-every elements, not just focusing on the falsity or one- in 3 one element 4 AH: Mm-kay and that’s a big part of it. 5 Bader: Too general 6 AH: These are basically just giving me the Restatement (Second) of Torts. They’re telling me 7 what are the elements of false light invasion of privacy as a whole.

[00:32:07.11] By the end of this session, Bader seemed to understand this problem, which had appeared in his own writing that week and the week before as well. His final revisions of the Santillo and Larsen rule statements for Memo I the following week (Wk.8, Memo I: Final draft, 10/8) incorporated rules that were specific to each of the cases and focused clearly on falsity, despite the fact that his final Santillo rule statement did not reflect the holding of the case through the grammar of the sentence.

118

Par t 2: Case Studies

Nonetheless, Bader still seemed confused about how broadly to frame the issue in writing his rule statements when he began the next memo. In discussing his first RE for Memo II (Wk.10, RE1 Shields, 10/22), he now moved away from case law completely, only paraphrasing the statute in his rule statement. When I talked about this with him in our individual meeting that week, I started by asking him which elements of the statute were not at issue, in order to help him focus his attention on defining only ‘bad faith intent to profit,’ the element at issue for the client. When Bader realized the basis of my critique, he explained his intent as trying to incorporate the holding of the case and asked whether the rule statement should focus on the broader (‘whole’) legal issue of liability under the statute or on the narrow issue specific to the client’s case. Week 10, Bader, IM 5, 10/24 [00:06:55.28] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Bader: Okay, but uh yeah, I-I uh wrote them here just to-to to give the holding for the case, or fothe rule out of the case AH: WellBader: Sh-should the rule statement- uh if I understand that well, uh should include the-the whole- or the- what we can get from that uh from that case- out of that case, then we can, uh we can choose which one of those elements or which of those rule statements or which part of that rule statement we can deal, according to our client facts AH: The rule statement should really be focused narrowly on what can we get from the case regarding the issue our client has Bader: Okay okay AH: Yeah Bader: I see AH: Because you can get a lot of other information from the case, and if you were just going to summarize the case, like for an essayBader: That’s what I thought, thatAH: -that would be different Bader: Okay AH: Here, we’re really focusing in onBader: Just for bad faith. Okay

[00:07:46.10] In this excerpt, Bader seemed to understand the revisions he needed to make and cut me off when I started explaining these. Still, one of Bader’s ongoing struggles with the rule statement centered on the scope of information included. In Memo I, he was not sure whether to include the entire synthesized common law rule from the Restatement or the individual rule on a single issue from a given case. In both Memo I and Memo II, it seemed that he was

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

119

also not sure whether he needed to cover the entire tort or only the element at issue for the client. The other struggle that resurfaced here was Bader’s question about how to incorporate the holding into the rule statement. As with his RE format, Bader frequently used a holding sentence immediately after the rule statement rather than indicating this holding through the grammar of the rule statement itself. The excerpt above also suggests that he was not just unsure of how to incorporate the holding in terms of the outcome of the case on the element, but that he was also unsure of whether his incorporation of the holding should include all elements of the broader legal issue or just the holding on the element that was relevant to the client. When asked why he had included extra elements in his first Memo II rule statement (Wk.10, RE1 Shields, 10/22) above, he explained in our individual meeting that ‘I-I uh wrote them here just to-to to give the holding for the case, or fo- the rule out of the case.’ Again, he was correct to focus on incorporating the holding into his rule, but he was confused about the necessary scope of the rule. In his revision of this rule statement (Wk.11, RE2 Shields, 10/29), he removed one of the extra elements, ‘identical to or confusingly similar,’ but still did not provide enough detail regarding the factors that were used to evaluate the focal element of ‘bad faith intent to profit’ in the Shields case specifically. Although all of his verbal explanations consistently emphasized the importance of case law and demonstrated his understanding of the cases themselves, Bader still did not appear to have drawn a connection between this understanding and his own writing in this draft. In our seventh individual meeting, just a few days before the final draft of Memo II was due, Bader brought in an intermediate draft of his Shields RE, which he did not submit through the online course management system or e-mail. In this draft, he had completely re-worked his Shields rule statement, which now looked more like a summary of highly specific case facts, including the defendant’s name, rather than a more abstract legal principle. This was perhaps the least effective rule statement he had written all semester, and I was surprised when I saw it appear in this draft when his previous draft had been so close to what was expected. Week 13, Bader, IM 7, 11/14 [00:15:25.11] 1 2 3 4 5

The one thing where I’m not sure about it is the rule statement. So this looks like it refers really specifically to Zuccarini’s liability, and a rule statement shouldn’t be specifically about that case. Bader: Okay AH: It should include facts from the case, but it should be stated in a way that it’s like a general AH:

120 Par t 2: Case Studies 6 7 8 9 10 11 12 13 14 15 16

principle Bader: Okay. I got that ideaAH: Mm-hmm Bader: I-I wrote it the first time, as you said, without- I meanwithout any namesAH: Mm-hmm Bader: Just the statement. But I found that in-in the Wellford book, that uh in the- the garage case, the-the-the rule statement he said the-the-the last name. Uh the family name for the I don’tI forgot the- what-what was that name, but uh in the rule statement it started or uh in the rule explanation, it began with uh- with the name of the househol- of the house uh holder AH: Okay Bader: And that uh- the name for the house.

[00:16:16.05] Bader seemed to have had some doubts about his rule statement format and had returned to the textbook to review the format before writing this draft. Unfortunately, he may have misinterpreted the section on rule statements. In this section, there were two parts that could have negatively influenced this draft. The various sections of the model rule explanation provided on pages 167 and 168 of the textbook (Wellford Slocum, 2011) were separated into three shaded boxes spanning two non-facing pages. On the first page, there was one box containing a rule statement, some explanatory prose, and then another box with the case facts. The reader then needed to turn the page to find another section of explanatory prose followed by the last box, which included both the holding and rationale sections of the model RE. Within the last box, a full line was inserted between each of the first three sentences and the last section of the paragraph. This layout was confusing for many students, and, like others in the class, Bader may have interpreted the case facts section as the beginning of the RE. This would help explain his use of case-specific nouns rather than a general principle here. Bader’s confusion may also have come from the section in the textbook where the author provided a series of sample rule statements, which were then evaluated (Wellford Slocum, 2011: 131–133). Among these samples were a range of more and less effective rule statements. Bader may again have gone directly to the numbered and italicized rule statements without reading the explanatory prose surrounding them, in which case he may have thought that one of the less effective samples was a valid model. Without carefully reading the surrounding explanation, it would have been easy to make such a mistake. Both these sample rule statements and the model rule explanation cited above dealt with ‘the garage case’ that Bader mentioned in this excerpt.

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

121

In spite of this confusion on the format of the rule statement, Bader was able to clearly define a rule from Shields orally: Week 13, Bader, IM 7, 11/14 [00:16:51.12] 1

AH:

2 3 4 5

Bader: AH: Bader:

6 7 8 9 10 11 12

AH: Bader: AH: Bader: AH: Bader:

13 AH: 14 15 16 17

Bader: AH: Bader: AH:

18 Bader:

So for you, for Shields, what was the- what was the interesting analytical principle that we can get out of Shields- to look at our client’s case differently? The case in Shields- in Shields, is different from our case Mm-hmm I:n terms of uh, of the purpose or-or the motivation of registering the domain names. Uh in Shields, he- uh uh Zuccarini intended to uh- to profit from them Mm-hmm To profit from them. His use wasn’t fair Mm-hmm Or-or uh bona fide non-commercial use Mm-hmm -while in Garber, he- he was totally the opposite. Or uh, most likely the-the opposite. Mm-hmm. Yeah. So the court kind of focused on that non-commercial useYeah -factor Yeah And so- so I think that would be worth incorporating into the rule statement Okay. Mm ((writes))

[00:17:46.00] Bader rightly focused on the non-commercial or fair use factor in this explanation and incorporated it into his final draft. When I then looked at his Mayflower RE (another draft that was never submitted), he knew exactly what my critique would be: Week 13, Bader, IM 7, 11/14 [00:18:52.12] 1 AH: Okay. And so again I th= 2 Bader: =yeah yeah the definition, okay 3 AH: Yeah. But. And then- so also then keeping in the present tense because we’re talking about 4 kind of a general principle 5 Bader: Ah yeah yeah

[00:19:01.29]

122

Par t 2: Case Studies

Interestingly, his explanation of the problem he had now identified with this sentence wasn’t phrased in terms of formal grammatical features, but in terms of meaning. In fact, his explanation aligned directly with the ‘spaces’ explanation from our CBI sessions, where the rule statement was described as primarily a definition of a rule. When I confirmed his response, I made sure to highlight the specific grammatical features that would help construct such a ‘definition space,’ but he already seemed aware of how his language did not express this meaning. In his final draft of Memo II (Wk.4, 11/19), Bader’s rule statement on Mayflower fit all of the expectations of the genre in both form and content. His rule statement for Shields, however, appeared to be a hybrid between a rule statement and a holding sentence. While it was placed at the beginning of the RE, included key legal factors for interpreting the element of bad faith intent to profit, maintained an effective balance between abstract lexis and concrete detail, and indicated the holding on this element through its grammar, the sentence was phrased in the past tense and began with a phrase signaling a holding, i.e. ‘The court held that.’ This may again speak to Bader’s struggles with incorporating the holding into his rule statement and may have been yet another way of him trying to put his conceptual understanding of what needed to happen into a concrete format that made sense to him.

Developmental Trajectory and Mediating Factors Looking only at his TOEFL scores and Memo I grade, Bader might have appeared to be one of the weaker students in the class. His explanations of common law argumentation and its relationship to the memorandum genre, as well as his explanations of the cases he was reading and his analysis of them, however, reveal that his understanding was far ahead of many of his classmates, including the other focal participants in this study. Although his written texts and oral explanations sometimes bore a surface resemblance to those of Hong or Weixin, looking at them in context suggests that their difficulties had a different origin. The sharp improvement in Bader’s Memo II grade may also be somewhat misleading. Although the quantitative change in his grade from Memo I to Memo II looks quite impressive, it does not seem to have been indicative of fundamental changes in his understanding of common law argumentation or language proficiency. These two features appear to have been relatively stable, and strong, throughout the semester. In our meetings, he could frequently correct grammatical errors with minimal intervention (e.g. highlighting). The most extended discussions we had regarding grammar were not based on helping him understand basic principles or grammatical terminology, both of which he seemed to grasp already. Instead, we discussed

Bader: Negot iat ing Genre to E xpress a Common L aw Argument

123

fine-grained comprehension of the cases he was reading and linguistic options for more accurately portraying the facts of the case and his interpretation of their legal significance in his own writing. Bader wanted to know what his options were and how they differed rather than looking for a single grammatically correct answer. What changed across the semester was Bader’s acceptance of the prescribed genre and ability to justify its structure. While the analysis presented here focuses only on the rule explanation, his performance in the rule application (RA) and other parts of the memo followed a similar trajectory. Various factors influenced his acceptance of the required genre structure. One aspect of our interactions that fostered his willingness to follow its expectations was having the opportunity to explain his own understanding and to directly question why the genre was structured in one way rather than another. His drafts conformed most closely to the course’s expectations when he had had a chance to discuss his doubts about the effectiveness of the prescribed format. He took copious notes during our meetings, re-read relevant sections of the textbook, reviewed his feedback from the law TA, and asked questions to the professor both in class and outside of class. It may be these behaviors that provided the foundation for him to succeed, or it may be that he knew what to take notes on and which questions to ask precisely because he was already so advanced. Rather than representing a clear cause and effect, his understanding and behaviors reinforced each other, leading to his notable degree of success by the end of the course. Bader’s more limited success on Memo I may also have been related to other contextual factors. During this semester, Bader and a few other students were taking a particularly challenging financial accounting course (Field Notes: Week 7 and Week 9). Part of the difficulty of this course came from the fact that it ended at the middle of the semester, which also meant that the class met four hours per week rather than two. The financial accounting midterm was scheduled in Week 5, and Bader mentioned that he planned to attend an additional midterm review session for the course on Friday of Week 4. Even Maqsood, a student with native English proficiency and significant professional experience, expressed concern about the difficulty of the financial accounting course in an off-task conversation between the two in the Week 4 CBI session, saying that they were covering so much material that he didn’t have time for anything else. Given Bader’s background in finance, he may have had an advantage in understanding the content of this course, but the workload was likely still quite heavy for him. Since it related directly to his professional interests, it may also have been a greater priority to him than the legal writing class was. The final exam for the financial accounting course was scheduled in Week 9, and Bader had requested permission for a deadline extension on his Week 9 Research Report assignment for the legal writing class. When his request was denied, he did not submit the legal writing assignment for that

124 Par t 2: Case Studies

week. He also missed his scheduled individual meetings in Weeks 8 and 9, as well as the group class in Week 8. This did not fit with Bader’s usual diligence, and it seems likely to have been connected with his financial accounting final. The final draft of his first memo was also due at the beginning of Week 8, the week before this financial accounting final. Week 7 was busy for him. In his assignment submitted at the beginning of the week, he had not revised either his RE or RA on Santillo, but instead submitted drafts that were identical to those he had submitted the week before. He postponed our regularly scheduled meeting from Wednesday to Friday because he wanted to make further revisions on his final draft of Memo I before we met. He then arrived just 15 minutes before the end of our rescheduled meeting time because his daughter’s daycare had called and asked him to pick her up early (Field Notes: Week 7). Our shortened meeting time on Friday also prevented us from reviewing his assignment in depth because I had had another meeting scheduled immediately after his. By the time Bader submitted his Memo II case chart, his financial accounting course had ended. Since the final draft of Memo II was due before the rest of his finals began, he likely had much more time to focus on his writing than he had for Memo I. These factors seem to explain Bader’s success on the second memo much better than a change in his common law analysis or language proficiency, especially when they are combined with the increased number of opportunities for Bader had to talk through his understanding of the genre.

Chapter Summary By examining the case of Bader, a Saudi lawyer with four years of professional experience in the financial sector, we have seen how surface characteristics of a learner’s work may mask a deeper level of understanding. Although his standardized test scores, first graded assignment, and difficulties with paragraph structure all seemed to suggest that he would struggle in the course, the interactional data examined above as well as more subtle aspects of his written assignments consistently demonstrated internalization of the key disciplinary concepts targeted in the course as a well as an orientation toward representing his argument in a nuanced way. Bader’s understanding of language as a tool for making meaning allowed him to develop a better sense of where to focus his reading and increase his precision in describing the cases involved in his assignments over the course of the term.

7

Alima: Distinguishing Discourse Proficiency from ‘Professional Vision’

This chapter highlights Alima, the final focal participant in the study. Among the four focal participants, Alima seemed to have the highest level of English language proficiency. Her two memorandum grades were 90 and 91, giving her the second highest grade in her section on Memo I (90th percentile, mean = 78.5, max = 91, min = 59, SD = 12.3, n = 14) and placing her in the 60th percentile in her section on Memo II (mean = 87.1, max = 98, min = 75, SD = 8.7, n = 14). Despite her consistently high grades and language proficiency, Alima was the only focal participant whose percentile rank dropped from Memo I to Memo II. As this drop in percentile suggests, while Alima’s classmates made significant gains from Memo I to Memo II (average change from Memo I to Memo II in her section = 9.2 points), Alima’s improvement was not as marked. Although her language proficiency enabled her to read, understand and accurately represent the texts she had read and to present her own arguments relatively effectively, Alima needed significant support in order to identify which information was relevant to her client’s case and her own arguments even at the end of the semester. This chapter analyzes Alima’s trajectory through the lens of ‘professional vision’ (Goodwin, 1994: 606), examining how her practices of ‘coding,’ ‘highlighting’ and ‘producing and articulating material representations’ were shaped through the tutor/researcher’s mediation. Specifically, analysis focuses on how Alima grappled with coding information into legal categories, highlighting relevant facts within published legal opinions, and producing and articulating material representations of her legal argument through the genre of the memorandum. By examining the support Alima needed to effectively engage in these discursive practices, we will see how the difference between Alima’s independent and assisted performance remained relatively stable throughout the semester. Despite her high grades on both of the major assignments, Alima’s ability to engage independently in these professional discursive practices did not develop significantly. 125

126 Par t 2: Case Studies

Professional, Academic and Language Learning Background Like Bader, Alima was from Saudi Arabia, a nation that uses an Islamic legal system. Unlike Bader, however, she had no professional experience in law before beginning the LL.M. program. She had completed her first law degree in her home country, though she had not specialized in any particular area of law (Wk.2, Initial questionnaire, 8/29). In her initial questionnaire, Alima listed her only law-related work experience as three months working as a legal researcher in a university law department in her home country. During this time, she had consulted legal materials in both English and Arabic. After finishing the LL.M. program, she planned to return to Saudi Arabia to find a job in a transnational company. Alima joined the LL.M. program at the same time as Bader and began the program with the same additional semester-long preparatory course in methods for US common law study. In her legal writing course the following semester, when the study was conducted, she identified some key differences between the practice-focused legal writing education in her US law school and the more academic legal writing she had done in her home country. At the end of the semester in which the study was conducted, she stated that ‘The first time that I’ve done a legal paper was in the university. There is no relationship between that I did and the memo’ (Wk.13, Exit questionnaire, 11/14). Later in the same questionnaire, when asked about whether or not her prior legal training had influenced her performance in the course, she reiterated this idea, saying, ‘Since I did not train with legal attorney I do not how [sic] to write memo and I learned it here in [name of US law school]’ (Wk.13, Exit questionnaire, 11/14). All the same, she saw legal analysis as similar across the two legal systems, explaining that ‘in both of them I have to see the facts, the issue, and then how the court could interpret the law and apply it to the legal issue’ (Wk.13, Exit questionnaire, 11/14). Alima listed Arabic and English as her two main languages and mentioned that she had also had some experience learning Spanish and French. Like Bader, Alima had studied English elsewhere in the United States before beginning the LL.M. program. She had lived in Florida for a total of 15 months, spending eight of those months studying at a university language institute and five more at a private language school. Before this, she had also learned English during her regular school studies in Saudi Arabia. She mentioned that before coming to the LL.M. program, she had practiced English by ‘talking beside the mirror, reading books, and studying’ (Wk.2, Initial questionnaire, 8/29). When comparing legal writing to other types of writing in English that she had learned before, she stated that ‘legal writing is completely different,’ adding that ‘legal writing format is IRAC but others writing has other style’ (Wk.13, Exit questionnaire, 11/14). As for similarities, she

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

127

indicated that synthesis could be similar, but emphasized that the main similarity between legal writing and other genres she had learned in English was the use of ‘quotation, summary and paraphrase to avoid plagiarism’ (Wk.13, Exit questionnaire, 11/14).

Professional Vision and Legal Writing Alima frequently expressed doubts about her understanding of the expectations for the course. Much of her frustration seemed to stem from difficulty with what Goodwin (1994: 606) describes as ‘professional vision,’ or ‘socially organized ways of seeing and understanding events that are answerable to the distinctive interests of a particular social group.’ Professional vision encompasses a specialist’s ability to categorize phenomena based on discipline-specific categories, to identify specific features of these phenomena that are significant, and to produce concrete forms that communicate these ways of perceiving the world to others. As Goodwin describes it, professional vision derives from the ability to engage in three main discursive practices: (1) coding, which transforms phenomena observed in a specific setting into the objects of knowledge that animate the discourse of a profession; (2) highlighting, which makes specific phenomena in a complex perceptual field salient by marking them in some fashion; and (3) producing and articulating material representations. (Goodwin, 1994: 606, emphasis in original) For Goodwin, these ‘material representations’ include the various ways that professionals use to represent their professional interpretation of objects or activity in the world to others, for example, the creation of an archeological map representing the terrain at an excavation site or the presentation and arrangement of graphic evidence by a criminal defense lawyer in a courtroom setting. Alima was participating in a course designed to help her see and understand legal cases and the memorandum genre from the perspective of members of the US legal profession. In terms of Alima’s work in the legal writing course, the genre of the legal memorandum was the means through which she was expected to represent her professional interpretation of the client’s case and precedent cases. This material representation of her understanding was intended to derive from practices of coding information into legal categories such as a cause of action, elements, and factors, and highlighting relevant details in the cases she read and in her own writing. Alima’s struggle to successfully employ the discursive practices of highlighting and coding can help to explain the seeming paradox between the high-quality work she

128 Par t 2: Case Studies

was submitting and her continuing struggle to create such work without significant intervention.

Initial Struggles with Professional Vision Coding information into legal categories Alima quickly identified key legal factors from case law for Pre-Memo I in the very first assignment of the semester, well before the pedagogical intervention was introduced in Week 4. Like many other students, though, Alima often had trouble distinguishing between the elements of a crime or cause of action and the crime or cause of action itself. In her first case brief, for example, although she was able to accurately identify the factors of ‘physical attachment’ and whether or not the property was ‘laid aside’ in the court’s rationale from Williams, she connected these factors to establishing the crime of ‘grand theft person’ as a whole rather than the element of ‘taking from the person’ specifically (Wk.1, Alima, Case brief: Williams, 8/22). This was a significant issue because this crime has multiple elements, all of which must be satisfied in order to make a conviction. While elements ‘impose a legal standard that must be met’ (Wellford Slocum, 2011: 129), factors ‘reflect the underlying ideas the court considered when justifying its holding’ (Wellford Slocum, 2011: 126). Although providing support for a given factor might satisfy an individual element, this would not necessarily prove the entire cause of action. This issue persisted in subsequent assignments for the Pre-Memo I case. For example, in her first rule explanation, Alima’s rule statement again omitted any reference to the element of taking from the person: ‘Under the California Penal Code §487, grand theft person does not occur when the property has been laid aside by the victim, losing control and bodily contact, and is no longer upon, attached or carried on the person’ (Wk.2, Alima, RE1 Williams, 8/27). In fact, none of her other texts on Williams, including her case chart (Wk.2, 8/27), the rest of her rule explanation (Wk.2, 8/27), her revised rule explanation (Wk.3, 9/5), or her rule application on Williams (Wk.3, 9/5), made any reference to the key element that students had been asked to focus on in their analysis. Likewise, in her analysis of Huggins, the second case for this client problem, she recycled the same rule statement that she had used in her rule explanations for Williams, again omitting all reference to the element of taking from the person throughout both her Huggins rule explanation and rule application paragraphs (Wk.4, RE1 & RA1 Huggins, 9/9). At this point in the semester, Alima also seemed to have trouble distinguishing between the legal categories of elements and factors. In fact, in her revised rule explanation on Williams, she referred to the factor of ‘control’ as if

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

129

it were one of the required elements included in the statutory definition of grand theft person: ‘The defendant was not constituted to grand theft crime because the purse was not by the victim’s control as a California panel [sic] code 487,3 pointed out’ (Wk.3, Alima, RE2 Williams, 9/5). It is also revealing that she incorrectly cited the statute rather than the case here, which seems to imply that she understood the factor of control as coming from the original statute. At this point in the semester, Alima seemed not to clearly distinguish among the full range of legal categories required for her analysis in the US system.

Highlighting relevant details Similarly, Alima had difficulty highlighting relevant details in her assignments at the beginning of the semester. Like Bader, she initially included ‘witness identification’ (which he refers to as ‘the reality of the thief’ (Wk.1, Bader, Defining a rule of law: Williams, 8/22)) as a factor from the Williams case (Wk.2, Alima, Case chart: Williams, 8/27). While the identification of the suspect by witnesses would be an important part of the legal process overall, this particular detail was irrelevant for determining whether or not the defendant’s action fulfilled the element of ‘taking from the person’ under the meaning of the California grand theft person statute. Alima and Bader’s identification of this detail was somewhat idiosyncratic, and it seemed unlikely that they would have worked together on the assignment. Moreover, Jamal, another Saudi student that Alima mentioned talking to about the assignments, did not include this as a relevant factor. In the redacted text of the Williams case that was distributed to students, the legal writing professor had removed information relating to four other issues separate from the grand theft person count in which the ‘taking from the person’ element was at issue. At the end of the facts section for this particular count, the court had included information on pre-trial and in-court identifications of the defendant by the primary victim, a victim from another of the five contested counts, and a witness. Both Alima and Bader focused on this information in their initial analysis of the court’s rationale on grand theft person, not taking into account whether or not it was relevant to the ‘taking from the person’ element. Alima’s difficulty with recognizing the element of ‘taking from the person’ as an important legal category likely made it more difficult for her to recognize that the witness identification facts were related to a different legal issue. Moreover, while other information unrelated to the primary legal issue had been removed from the text of the case in the professor’s redacted version, the information on the suspect identification issue was left in the facts section, implicitly marking it as important. Both students’ reference to this fact in their rule explanations may simply have been due to a misinterpretation of its inclusion in the redacted case. At the same time, this concern with the identification of the suspect also relates to one of the seven required elements

130

Par t 2: Case Studies

for convicting a person of theft in the Saudi legal system, specifically that at least two credible witnesses must identify the defendant (M. Almulhim, personal communication, 25 February 2014). Given that this fact was not generally included by other students, Alima and Bader’s emphasis on it may have reflected their prior legal training. Similarly, in our first individual meeting, Alima asked what the phrase ‘key rationale’ referred to and whether it was different from rationale generally. Her question highlighted an important difference between the casebook readings that she had completed in constitutional law the semester before and the reading that she was doing now for the legal writing course. While the cases in the casebook were often redacted to remove issues unrelated to the line of doctrine that the case was chosen to illustrate, the cases that students read for their legal writing assignments were generally unredacted. Apart from the Williams case, the rest of the cases students read during the semester of the study came directly from professional databases such as Westlaw or LexisNexis and usually included additional legal issues that were not related to the ones that students were researching for their client problems. To read these unredacted cases effectively, students needed to have a clear understanding of the client’s legal issue and then be able to identify which parts of the precedent cases related to this issue. This was also a much more instrumentally focused form of reading than what Alima had engaged in the semester before, as it emphasized finding information that would allow students to make a prediction on the potential outcome for their imagined client based on these cases. In addition to this shift in reading focus, lexical knowledge also played a role in Alima’s difficulty with highlighting legally relevant information in the texts she read. From the beginning of the semester onward, it was clear that prepositions were an area of difficulty for her, and the importance of this became evident as we looked at her rule explanation on the Huggins case. In this case, Alima had missed some important rationale about the partial physical attachment between the victim’s foot and the stolen property. As we talked through her rule explanation together, it became clear that this was due in part to her difficulty with the preposition ‘against,’ which she had paraphrased as ‘between’ in her draft: Week 4, Alima, IM2, 9/12 [00:07:32.04] 1 2 3 4 5 6 7 8

AH: Alima: AH: Alima: AH: Alima: AH: Alima:

Alright, the next one. Not grammar, but about the case facts ‘put her purse’- Uh yeah, not ‘between’ Mm-hmm It’s like, in contrast of her feet, right? Okay. So, on her foot, or against her foot, we could say Yeah, maybe Here, show me what you think it looks like. Here’s-I think-

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

131

9 AH: Here’s the purse ((hands pencil case to Alima)) 10 Alima: -it was like, like this ((places pencil case on ground next to foot, but not touching)) 11 AH: Uh, that’s ‘next to’ her foot. That would be different 12 Alima: Ah, so here. ((places pencil case between feet on floor, again not touching)) 13 AH: Uh, that’s ‘between.’ 14 Alima: Yeah. So I don’t know 15 AH: Uh, so based- let’s look at uh Huggins

[00:08:03.19] After taking another look at the original text to make sure that the problem wasn’t just Alima’s recollection of the facts, I asked Alima to identify the section of the case in which the court talked about the location of the victim’s purse. Week 4, Alima, IM2, 9/12 [00:08:48.09] 1

AH:

2 3

Alima: AH:

4 5 6

Alima: AH:

7 8 9

Alima: AH:

10 Alima: 11 AH: 12 Alima: 13 AH: 14 Alima:

Okay. So can you find the detail about where the purse was, where she put the purse? ((reads silently)) Yeah, here. ‘She sat down-’ Here. Okay, so, ‘She sat down in a chair and put her purse on the floor. She put her foot against the purse to make sure she knew where it was.’ So what does that look like? @@ ((reading)) ‘against her foot’? Mm-hmm. So ‘she sat down in a chair and put her purse on the floor. She put her foot against the purse’ @ I @don’t know Okay, ah okay. Well, do it step by step. So- so- first she put her purse on the floor. Okay, it’s like- it’s like that ((places pencil case on floor)) Okay. And then she put her foot against it. Mmm … ((places foot in front of pencil case)) Maybe? No, that is behind. ‘Against’ would mean touching ((places pencil case against her own foot)) A::h, oka::y!

[00:09:49.05] When I pointed out the word ‘between’ in her text in the earlier segment above, she already seemed to have had doubts that this was the right word. Once we enacted the scene together, however, both her misunderstanding of this word and its relevance to her analysis became clear. Part of Alima’s difficulty in highlighting relevant information in the cases she read came from not knowing when an approximate understanding was sufficient and when she needed to know what was happening more precisely. This again related to being able to separate the case into relevant and irrelevant sections based

132

Par t 2: Case Studies

on the legal element at issue for her client and thus recognize where a closer reading was necessary.

Producing and articulating representations through the memorandum genre Although Alima’s case brief on Williams (Wk.1, 8/22) and case chart comparing Williams to the client (Wk.2, 8/27) both suggested that she had understood the facts of the case, her first rule explanation (Wk.2, RE1 Williams, 8/27) omitted the case facts section entirely. This same rule explanation also included a single sentence of rationale, strikingly similar to Hong’s, in which she mentioned only that the court relied on the precedent set by McElroy in its decision. Unlike Hong’s rule statement, however, Alima’s rule statement showed focused attention on factors that could reasonably be understood from Williams: whether the property is laid aside, whether the victim retains control over the property, and whether or not the victim is attached to the property at the time of the taking. In her identification of these factors and understanding of the facts, it was clear that Alima effectively accomplished at least part of the legal ‘coding’ she needed to do as she analyzed case law. At the same time, like Weixin, although she could identify factors that came from the cases rather than the statute, she did not distinguish between cases once she had found an initial set of factors, and instead used the same rule statement for both Williams and Huggins. In her first rule explanation (Wk.2, RE1 Williams, 8/27), Alima had some difficulty using the genre conventions necessary for communicating her professional vision back to the reader. While in this case she was able to engage in the coding practices that allowed her to identify key factors from case law and highlight legally relevant details, she had more difficulty representing her professional interpretation of the case materially to the reader through the memorandum genre. While she remedied this to some extent in her next draft by including a sentence of case facts and talking more specifically about the rationale from McElroy, she now flipped the holding and rationale. More importantly, although her single sentence of case facts included the one key detail necessary for explaining the court’s rationale (‘The purse was in the passenger seat and not in physical touch by the victim’ (Wk.3, Alima, RE2 Williams, 9/5)), she provided no context to help the reader understand why she was focusing on this fact or even that the purse was taken. Instead, the sentence simply placed an object in a visual frame. Although this did highlight the position of the stolen property, which was essential to the analysis, the sentence did this to the detriment of the overall narrative of the case. This way of framing the facts suggested that Alima was not yet attending to her reader’s needs and was instead focusing on developing her own understanding of the case. She was refining her own professional vision rather than communicating it to the reader.

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

133

When we talked about her Williams case facts from the revised rule explanation in our first individual meeting, however, Alima did not need a significant amount of support to start to see the problem with her framing: Week 3, Alima, IM1, 9/5 [00:11:18.00] 1

AH:

2 3

Alima:

4

AH:

5 6

Alima:

7 8 9 10 11 12 13

AH: Alima: AH: Alima: AH: Alima: AH:

So imagine if you’re telling a story to somebody and the first thing you say is ‘The purse was in the passenger seat.’ @ Ah, @okay, so there’s something wrong. So maybe we can say um- I don’t know. How would you start the story? If you were telling me what happened in Williams, how would you start the story? Uh maybe I can say that the woman, or the victim, was in- on the- what’s this called? Which one? Uh the car seat? OrOkay. Passenger or driver? Uh driver. So ((claps)) on the driver seat Mm-hmm And then the purse was in the passenger seat Mm-hmm. Yeah. I think that works.

[00:11:57.00] In this sequence, Alima was able to shift her perspective away from her own vision of what was important in the physical scene of the crime to start setting the scene effectively for a reader unfamiliar with the case. Likewise, as we talked through her next sentence, Alima began to see the importance of going beyond setting the scene and now placing the primary actor, the defendant, as a figure moving within this scene. Her next sentence, which appeared to be part of her rationale section, began: ‘The defendant was not constituted to grand theft crime because the purse was not by the victim’s control’ (Wk.3, RE2 Williams, 9/5). Given the mismatch between the subject ‘defendant’ and the verb ‘constitute,’ I suggested that she could change the subject to an action rather than referring to the defendant himself: Week 3, Alima, IM1, 9/5 [00:20:44.10] 1 AH:

Um, what about changing the first part of the sentence so that it’s talking about an action? 2 Alima: So, maybe I can say um that ‘the purse’- no no- ‘the act of the defendant’? 3 AH: Yeah, that would work, but then make sure in your case facts that you mention what the vic-

134

Par t 2: Case Studies

4

what the defendant did, because in the case facts, we know where the purse was, we know where 5 the victim was, but we don’t know anything about the defendant taking the purse. 6 Alima: Ah, so I have to add it to my facts 7 AH: I think that would help. And then that way you can refer back to the defendant’s act.

[00:21:23.10] Once Alima realized that she needed to focus her language on evaluating the defendant’s action rather than the defendant himself, she also saw that she needed to include the defendant’s taking of the purse to her case facts section. When she submitted her next rule explanation, on the Huggins case (Wk.4, RE1 Huggins, 9/9), this understanding transferred to her writing. In this paragraph, Alima’s case fact section started by identifying the victim, the position of the stolen property relative to her, the victim’s stated intention in placing the property there, and the defendant’s act of taking the purse. With relatively little mediation, Alima began to understand how to use the case facts section of the rule explanation genre to communicate her professional vision to her reader. The RA also posed difficulty for Alima. Even though she was eventually able to revise her text with little intervention, her initial RA on Huggins (Wk.4, RA1 Huggins, 9/9) suggested little awareness of its role in using precedent to argue for a conclusion for the client. Instead, Alima appeared to analyze the problem in reverse, showing how the client’s case could help compel a result for the precedent case. Her first sentence focused on the victim in Huggins, showing how she was similar to the victim in the client’s case. The rest of the facts that Alima included all came from Huggins rather than her client’s case and the final sentence seemed to argue for a conclusion for Huggins: ‘Therefore, the act defendant in Huggins’s case is considered as a grand theft person’ (Wk.4, RA1 Huggins, 9/10). Much like Weixin’s inclusion of a citation for the client case, this approach suggested that Alima did not understand the overall framing of the assignment as an attempt to analyze an imagined client’s case. This was quite different from her RA on Williams the week before, which, despite its other issues, at least focused on her client. When we began her second individual meeting, Alima brought up this problem with her Huggins RA immediately: Week 4, Alima, IM2, 9/12 [00:00:00.00] 1 2 3

Huggins is the right case to find, so that’s good= Alima: =Yeah, but the problem is uh what I did, I compared um- I compared Huggins to this case, but in a wrong way, like, uh my client was AH:

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’ 4 5 6 7 8 9 10 11 12 13 14 15 16

AH: Alima: AH: Alima: AH: Alima: AH: Alima: AH: Alima: AH: Alima:

17 18 AH:

135

uh … this one A::h okay. So, you were thinking of it asYeah As Huggins being your client? Yeah A::h I got it. Okay. So that’s what I did. So did you get feedback from your TANo -or did you just realize suddenly? Yeah Okay Yeah, yesterday and now on Monday class when uh Professor put the- the model answer or how or that we should um- @ I forget the word- so yeah, I #could uh recognize that Alright

[00:00:53.26] At this point, it seemed that Alima was able to independently recognize differences between her own RA and the model RA discussed in class and posted for students on the online course management system. As we examined her RAs that followed, however, she still needed support to see other important differences between her texts and the genre models.

‘I Don’t Know What They Want from Me’: Uncertainty and Coping Strategies Producing and articulating the memorandum genre Although Alima’s rule statements from the pre-intervention data consistently included factors from case law, her verbalization of her understanding, both in describing the genre and evaluating rule statements produced by other students in the first CBI session, was less consistent. At first, when explaining the function of the rule explanation paragraph as a whole, she described it as a summary of what the court concluded: Week 4, Alima and Teodora, CBI1, 9/12 [00:04:40.01] 1 Alima: 2 3 4

What I understand is the rule explanation paragraph is like summarize the idea out of the case and what’s the holding, yeah, and what’s the conclusion that the court had concluded. So wewhen we know- when we write a- a rule explanation paragraph, it’s like- it’s like a conclusion for everything.

136

Par t 2: Case Studies

5 Teodora: Mm-hmm 6 Alima: What we did before 7 Teodora: Yeah. I think so.

[00:05:04.26] On its own, this description could be interpreted in a variety of ways. When Alima then explained the role of the rule statement specifically, it sounded more like she was describing the rule as a summary of a statute: Week 4, Alima and Teodora, CBI1, 9/12 [00:06:11.16] 1 Teodora: So what each part does? The rule statement talks about (..) talks about what is- what 2 the= 3 Alima: =the rule statement is talk about the rule for the case4 Teodora: Yeah 5 Alima: -like the California Penal Code Section 487.

[00:06:31.11] Much like Hong’s explanations had, this description identified the original statute as the ‘rule for the case’ in the rule statement rather than a rule derived from case law. Similarly, in talking through the first student sample in the rule statement evaluation worksheet for this CBI session, Alima identified the element of ‘taking from the person’ from the original statute, an element that she had not included in any of her own Pre-Memo I texts, as a strength of this rule statement: Week 4, Alima and Teodora, CBI1, 9/12 [00:18:33.21] 1 Alima:

So I think the good points here that the writer say that the property is taken from the 2 person of another. This one. 3 Teodora: You think that’s # #enough? 4 Alima: Mm? No, I think it’s good point (.) to mention that. 5 Teodora: Oh yeah, that’s true. So the good point.

[00:18:54.00] Unlike Alima, the student who wrote this rule statement had not included any factors from case law, yet Alima did not see this as a problem as they continued to evaluate the sentence. The only problem that she and her partner identified with this first example was that it was phrased in the affirmative even though the holding of the case was negative. Neither of

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

137

them saw the fact that it did little more than directly quote the statute as problematic even though the main function of this part-genre is to introduce factors from case law. Similarly, Alima thought that Hong’s rule statement, the third one on the worksheet (‘Under California Penal Code Section 487, grand theft is not committed when property is not taken directly from the victim.’), which only slightly paraphrased the original statute, was fine as it was: Week 4, Alima and Teodora, CBI1, 9/12 [00:23:36.21] 1 Alima: I think this one is pretty good 2 TM: Yeah @@@ #it’s #very3 Alima: So, no need to improve it

[00:23:41.21] This seems to reinforce the idea that Alima saw the rule statement as a summary of the statute at this point in the semester. Much like Hong, she may have believed that the factors she had identified and used in her own rule statements on both Williams and Huggins actually came from the statute. If so, what she was representing in this part of the genre was not case law but what she believed to be the statute. In evaluating the second rule statement from the worksheet, Alima suggested removing all reference to the factors from the case law in the student sample. Although she thought that the first part of the sample rule statement, ‘The act of taking a purse from the passenger seat of a car does not constitute grand theft person under California Penal Code § 487,’ was both effective and sufficient as a rule statement, she argued that the second half of the sentence, which addressed the factors of ‘laid aside,’ ‘upon or attached’ and ‘control,’ should be removed: Week 4, Alima and Teodora, CBI1, 9/12 [00:21:45.24] 1 2 3 4 5 6 7 8 9

I think uh- I think the good point here is ‘the act of taking a purse from the passenger seat of the car does not constitute grand theft person under the #California-’ Teodora: Yeah, that’s correct. Alima: From here. And then after [that, I think] Teodora: [They- they ]put- put could have a point. In here, because there’s a new idea Alima: Yeah, I think the new idea, like in the rule, we don’t need to write a specific details like that Teodora: Mm-hmm Alima:

138

Par t 2: Case Studies

10 Alima: Because it’s just a rule, so I think uh, it’s enough from here 11 Teodora: So that- so then what’s bad is that it’s- they need to use a bit of grammar, because 12 #order. [And then also 13 Alima: [And then I think that 14 Teodora: Too many details 15 Alima: Yeah, too many details that we don’t need to know

[00:22:36.14] This suggested revision would have eliminated the parts of the rule statement that were most effective and left a rule that inaccurately represented the court’s rationale. More importantly, the factors that she now described as ‘too many details that we don’t need to know’ had been the strongest aspects of Alima’s own rule statements. At this point, it was unclear whether Alima now believed that the rule statement should include only the original rule or whether she was just having trouble recognizing the processed rule in other students’ texts. Her law TA had not commented on her rule statements at all at this point, and, in our individual meetings, I had praised the ones she had written so far. In the excerpt above, like Hong, she may just have been referring to the length of the rule statement rather than providing a critique of its content. Although Alima seemed to understand the main points of the cases she had read, she now seemed confused about how to represent these within the genre.

Coding information into legal categories Part of this confusion may have come from her continued difficulty with coding the legal categories of factor, element, and crime or cause of action. In her evaluation of the first sample rule statement in CBI, she treated the element of ‘taking from the person’ as equal to the factors she had identified in her own rule statements and sufficient in themselves to constitute the crime of grand theft person. It may have been that she saw ‘taking from the person’ as an equivalent paraphrase of taking property that is ‘upon or attached,’ not ‘laid aside,’ and under the victim’s ‘control.’ At this point in the semester, the unclear boundaries among these legal categories were still problematic for Alima.

Highlighting relevant facts Likewise, Alima had continued difficulty highlighting relevant details in the cases she needed to read for Memo I. Now that students were reading only unredacted cases, Alima had even more trouble identifying the key rationale for her client. Given her relatively high level of language proficiency, however, this incomprehension was effectively masked on her first case chart for Memo I (Wk.5, Memo I: Case chart, 9/17). The cause of action for this client problem was ‘false light invasion of privacy’ and the focal element was

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

139

‘falsity.’ In their reading of the relevant cases, students were expected to identify the factors of ‘selective/discriminate publication of true information’ and ‘creating a false impression.’ In writing her rule statement for Larsen in the case chart assignment, Alima appeared to accurately identify the factor of selective publication of true information, which was part of the case law rather than the original rule of law. At the beginning of our third individual meeting, though, she had trouble remembering the case facts that the court had relied on in its holding. When I asked her to print out Larsen so that we could look at it more closely together, she quickly admitted that she was unable to understand the primary text and had only based her analysis on the case summary provided by LexisNexis, the publisher of the legal database she had used to find the case: Week 5, Alima, IM3, 9/19 (Recording B) [00:00:11.07] 1 AH:

So this is Larsen, so do you remember where you found the holding in Larsen? 2 Alima: Actually and honestly, what I did at that- I accessed uh LexisNexis 3 AH: Uh-huh 4 Alima: And then found the case summary and then just read the case summary because I tried to 5 read it like three times and I couldn’t understand anything, like I found the words ‘highly 6 offensive’ and ‘invasion of privacy,’ ‘false light,’ but I don’t know what- what they want from 7 me, so I read just summary. The case summary.

[00:00:43.29] Here, Alima had highlighted one element, ‘highly offensive,’ and the cause of action, ‘false light invasion of privacy,’ as important search terms and key words for focusing her reading, but she still seemed to have trouble understanding even this summary of the case. After noting that Alima had correctly categorized Larsen as being useful for the element of falsity in her case chart (Wk.5, Case chart: Memo I, 9/17), I suggested to her that she could focus her reading on the most relevant sections of the case by first skimming through and highlighting where falsity was mentioned: Week 5, Alima, IM3, 9/19 (Recording B) [00:01:00.09] 1 ÁH:

Um, so, and then so for Larsen, you said that was for falsity, right? 2 Alima: Mm-hmm 3 AH: Okay. So, the first thing would be to see where do they talk about falsity. Um, so if you just

140

Par t 2: Case Studies

4

skim through, where do you start seeing them talking about falsity?= 5 Alima: =Here, like here ((points 6 to text in case)) we talk- they talk about false light 7 AH: Okay, let’s put a star there. Anywhere else?

[00:01:25.18] As we looked through the case together, Alima identified all of the instances in the case where falsity was mentioned, and I marked them. When she found a section toward the end of the case in which falsity was mentioned multiple times within the space of a few paragraphs, I drew a vertical line along the side of this entire section. We then returned to the beginning of the case to read each section on falsity more closely and in order. As we began, I asked Alima to summarize each of these sections. Alima recognized that the first section explained the basic facts of the case related to the falsity issue. When she got to the next marked sentence, she had more trouble recognizing why it might be useful. When I asked her what this section was talking about, she first said ‘Nothing very important.’ I then asked her to look more closely at the paragraph as a whole: Week 5, Alima, IM3, 9/19 (Recording B) [00:05:07.13] 1 AH:

Well, what is this paragraph doing? Maybe look at- from the beginning of the paragraph 2 Alima: Ah, I think they talk about- oh, ‘counts’ not ‘courts’ 3 AH: Okay. So what are they talking about when they talk about ‘counts’ 4 Alima: About the lower court maybe? No, right 5 AH: Mm, not about a court 6 Alima: Maybe the issues? 7 AH: Exactly, yeah.

[00:05:36.16] Once Alima realized that each of the issues addressed by the court had been labeled under a numbered count, I asked her which count referred to our issue. At first, she was unsure. She re-read the section, and then incorrectly guessed that it might be Count IV: Week 5, Alima, IM3, 9/19 (Recording B) [00:06:12.00] 1 Alima: Ah, okay, so Count- uh I-V? Maybe? Is it right? 2 AH: Okay, let’s take a look, so Count ‘I-V’ is four 3 Alima: Yeah, so-

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

141

4 AH:

((reading)) ‘Count IV’s cause of action was rooted in-’ da da da ‘Restatement (Second) of 5 Torts 652B’- Not sure that= 6 Alima: =Ah, so no= 7 AH: =‘B’ is ours. Okay. 8 Alima: It’s E. 9 AH: Mm-hmm. So keep looking.

[00:06:31.23] At this point, Alima was starting to recognize important cues that could help her identify whether or not this part of the case was relevant to the client’s legal issue. As soon as I read the citation to the Restatement (lines 4-7), she immediately recognized that Count IV referred to a different section than the one we were looking for – 652B rather than 652E (lines 6 and 8). Through reading aloud, I also drew Alima’s attention to the parts of the sentence that I attended to as I determined whether or not this section was relevant to the client, here the count number and citation to the Restatement, by explicitly verbalizing the elision of unnecessary information (‘da da da’ in line 4). When I asked her to look more closely at the section of the paragraph that we had marked together, she realized that Count V was the one that related to the client: Week 5, Alima, IM3, 9/19 (Recording B) [00:07:14.02] 1

AH:

2 3 4 5 6 7 8

Alima: AH: Alima: AH: Alima: AH: Alima:

9 10 AH: 11 Alima: 12 AH: 13 14 15 Alima:

But do you see anything about false light? False light invasion of privacy? No. Nothing here. Nothing in that paragraph? @@ ((bends down closer to page and re-reads)) Nothing that we marked together five minutes ago? @@@ Yeah @@ I know there- there’s something here. Okay. It’s um mm mm- ((turns page)) Count ‘V’- is ‘five’ Exactly. Yeah. Okay. So Count V we know deals with our issue Yeah So now we know two things. We know that we’re looking for falsity, and anywhere where you see falsity, false light and also anywhere where you see them talk about ‘Count V’ is also relevant for us That’s very good

[00:07:55.17] When we then went on to look at the section toward the end of the case where we had marked multiple instances of the word ‘falsity’ within the

142

Par t 2: Case Studies

span of a few paragraphs, we confirmed that she had now found the right section of the case and that Count V was indeed our legal issue. Week 5, Alima, IM3, 9/19 (Recording B) [00:09:46.21] 1 AH:

Okay. So, let’s see. So we decided that our issue is falsity, we decided that falsity and false 2 light invasion of privacy was related to Count V. Does it look like we were right about that, 3 based on this section? 4 Alima: Yeah, here they talk about Count V ((points to text in case)) 5 AH: Mm-hmm. Yeah. So it looks like we were looking at exactly the right thing 6 Alima: Yeah 7 AH: Um, so, I would say, in your reading, I would focus on this whole section.

[00:10:12.23] Now that Alima understood what she needed to look for, she was willing to put in the effort to read the case. The next week, she was able to clearly articulate a rule and brought specific questions about a single paragraph in the text that was still posing difficulty for her. Once she recognized that this paragraph related to another earlier paragraph, she quickly understood its meaning. She then described the work she had put into reading the case that week: Week 6, Alima, IM4, 9/26 [00:04:12.22] 1 Alima: I think that’s it for this, because I tried to read it and read it and read it 2 AH: Yeah 3 Alima: And then I do a chart 4 AH: Uh-huh 5 Alima: Like, to understand the factors 6 AH: Mm-hmm 7 Alima: And then I understood it, so @@@

[00:04:24.09] Alima’s initial difficulty in approaching this case involved not knowing how to separate relevant from irrelevant information. With support in coding the client problem into relevant legal categories that Alima needed to focus on, she was able to narrow her reading and turn a complex, 12-page text of dense legal prose into a series of shorter, more manageable paragraphs that all related directly to the client problem. In doing so, she began to

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

143

highlight the information that would be relevant to her analysis. In her first rule explanation on the case, she was able to pinpoint and quote key phrases from the court’s rationale to make her argument (Wk.7, RE1 Larsen, 10/1), and in her final draft of Memo I, she included page-specific citations that showed that she knew exactly where to find this information in the main text of the case itself (Wk.8, RE2 Larsen, 10/8). At the same time, Alima was still not at the point where she could engage in this highlighting process independently, and she again needed significant support to identify key factors and to understand the plaintiff’s argument in the Santillo case in our individual meeting in Week 6. In this case, there were two primary legal issues, and Alima mistakenly focused on the first one, ‘invasion of privacy by publicity to private life,’ in her reading of the case, referring to it as ‘defamation invasion of privacy’ at one point in our meeting and stating that the plaintiff’s argument was that the defendants ‘gave publicity to his life’ (Wk.6, IM4, 9/26). As we looked at the case together in our meeting, it became clear that she was looking at the wrong section of the case. In her rule explanation, however, she had identified an important factor, discriminate publication, from the correct cause of action. Although Alima seemed to understand the basic facts, when I asked her to explain the plaintiff’s argument regarding discriminate publication, her explanation was circular. Although her rule explanation stated that discriminate publication was a factor that could help determine whether or not false light invasion of privacy had occurred, in our meeting, Alima argued that the defendants’ action constituted discriminate publication because it put the defendant in a false light: Week 6, Alima, IM4, 9/26 [00:41:31.24] 1

AH:

2

Alima:

3

AH:

4 5 6 7 8

Alima: AH: Alima: AH: Alima:

9 10 AH: 11 Alima: 12 AH: 13

So why does Santillo say that what the two police officers did was discriminate publication? Maybe because they like give information about him and put him in false light? Mm-hmm. So how is that discriminate publication? Based on his argument? I don’t know What’s discriminate publication? @@@ @@ Discriminate publication, like when um there is an information that known by public is false Ah, not exactly. Okay. Do you- what’s selective publication? ((Alima looks confused)) Okay. So those are the two terms that the court uses. The court talks about ((underlines terms progressively in case text)) ‘discriminate publication,’ ‘selectively publicizing,’ um, (..)

144

Par t 2: Case Studies

14 15 16 Alima: 17 AH: 18 19 Alima: 20 21 AH: 22 Alima: 23 AH: 24 25 Alima: 26 AH: 27 Alima: 28 AH:

‘discriminate publication’ again, ‘discrete presentation’- these words: discrete presentation, discriminate publication, selective publication- these are all similar words. Mm-hmm They all mean basically the same thing. And so ‘selectively publicizing’ is probably the easiest one to understand. So, if I selectively ((picking gesture)) publicize somethingAh, okay! Like I select ((picking gesture)) what I want to say for the public. And the discriminate, no I’m thinking about this, it’s like discriminate? So it doesn’t mean the same thing as discrimination, just so that we’re clear Ah, okay It- it’s when you’re saying ‘discriminate publication’ and ‘selective publication,’ we’re really meaning the same thing Mm You’re selecting some things and publicizing those, and keeping some other things back Ah, oka:y So that’s what Santillo is arguing happened here

[00:43:11.22] Here, although Alima clearly recognized that ‘discriminate publication’ was an important phrase in the court’s rationale and used it herself in her rule explanation on Santillo (Wk.6, RE1 Santillo, 9/24), she had no idea what it meant. As in her case chart on Larsen the previous week, her overall language awareness allowed her to hide her lack of understanding of this factor. Similar to Alima’s difficulty with the preposition ‘against’ in relation to the factor of physical attachment in the Huggins case, she had not attended to the key word ‘commendations’ in relation to the factor of discriminate publication here. This was a significant oversight since this word was the only detail in the case that explained the basis for the plaintiff’s argument on this factor: Week 6, Alima, IM4, 9/26 [00:43:31.29] 1 2 3 4 5 6 7 8 9

What- what was Santillo’s argument? I would say, let’s review this paragraph and say what - what does Santillo say they should have done? [00:43:37.24] ((Alima reads)) [00:43:56.02] Alima: Uh, what does ‘commendations’ mean? AH: Ah, ‘commendation’ is like some sort of good report about somebody, like ‘Yeah, he’s an excellent police re- officer’ Alima: A::h, okay AH:

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

145

10 AH: He got an award for being a fantastic police officer. 11 Alima: Ah, okay, so uh I think he argued that they didn’t tell the report, the- they didn’t tell the 12 reporters about his comm- commendations? 13 AH: Mm-hmm 14 Alima: And that mean that they like discriminate publication 15 AH: Mm-hmm. That was his argument.

[00:44:21.25] At this point in the semester, Alima was able to highlight some key words from the case, but she did not focus her reading to the extent necessary to understand what these words meant. Again, once she had received only a minimal amount of mediation, she was able to quickly understand what she had missed. All the same, this did not appear to lead to greater independence in her ability to highlight and understand key information on her own.

Reliance on Scaffolding and Difficulty with Transfer Producing and articulating the memorandum genre Alima’s first RA for Memo I began differently than both of those that she had written for the Pre-Memo I problem. While her RAs on Williams and Huggins both indicated some kind of conclusion, her first RA on Santillo (Wk.6, RA1 Santillo, 9/24) began with a rule statement that had been cut and pasted word for word from her rule explanation on the same case (Wk.6, RE1 Santillo, 9/24). At the same time, Alima appeared to know that her RA should provide a conclusion for the client, as she mentioned this directly in the CBI session the week before submitting this paragraph: Week 5, Alima, Émilie, and Yue, CBI2, 9/19 [00:07:43.14] 1 Yue: 2 Alima:

The function Yeah, the function of the rule application that, I think, how we apply the- the conclusion 3 that we-we found in the rule explanation on our client case. 4 Émilie: It’s more like getting your own opinion 5 Alima: Yeah 6 Émilie: You know, giving the conclusion, and making your own statement, I think

[00:08:07.08] Although Alima’s characterization of the function of the RA at first seemed to acknowledge the importance of making a conclusion for the client based on the precedent described in the rule explanation, a closer reading suggests that what Alima understood as the conclusion was something that she identified as coming directly from the rule explanation. Later in the same

146

Par t 2: Case Studies

CBI session, she also mentioned that ‘In the RA we start with the- I think we start with the conclusion’ (Wk.5, CBI2, 9/19, [00:11:48.15]). Again, the term she used here was correct. The text that Alima produced the next week, however, suggested that what she understood to be the conclusion was actually the rule statement. In fact, in other parts of the memo that were expected to begin with a conclusion, such as her overview and thesis paragraphs, she had also used rule statements in place of these sentences. In her first overview paragraph (Wk.6, Memo I: Overview 1, 9/24), she copied and pasted exactly the same rule statement that she had used at the beginning of her Santillo rule explanation and application, submitted the same day. Her thesis paragraph (Wk.6, Memo I: Thesis 1, 9/24) did not use exactly the same sentence as the others, but nonetheless employed a structure that strongly resembled a rule statement: ‘Falsity occurs when the appellant show ample evidence that the statement, had been published by the appellee, was highly offensive and “with knowledge or in reckless disregard of the falsity.”’ Alima was unsure of her thesis paragraph, and in our Week 6 individual meeting, she first wanted to confirm that she had understood the structure correctly: Week 6, Alima, IM4, 9/26 [00:05:30.09] 1 Alima: So first I have to write about conclusion 2 AH: Mm-hmm 3 Alima: How-how does the rule affect the client’s situation.

[00:05:36.18] Here again, her verbal explanation of what she needed to do sounded correct. When I asked her to show me her conclusion sentence in the thesis paragraph she had written, however, she indicated the sentence quoted above: Week 6, Alima, IM4, 9/26 [00:08:46.26] 1 2 3 4 5 6 7 8

Okay, so where’s your conclusion? You said it starts with a conclusion, so where is- where is your conclusion? Alima: I think it’s ‘Falsity occurs when the appellant show ample evidence that the statement, had been published- published by the appellees, was highly offensive and ‘with knowledge and-’ ‘til here. AH: Okay. And so, ‘Falsity occurs when’ sounds like a general definition to me. To me that sounds like you’re saying ‘Falsity occurs any time this happens’ Alima: Ah, okay AH:

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’ 9

AH:

10 Alima: 11 12 AH: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Alima: AH: Alima: AH: Alima: AH: Alima: AH: Alima: AH: Alima: AH: Alima: AH:

28 Alima: 29 AH:

147

So how are- how could we make it more specific to this case? For our client’s case? Um like uh maybe I have to to write that this conclusion is related to the #present case? Precedent case? Yeah, or- more specifically, I mean when you say ‘the appellant’ it could be any appellant hereYeah -becauseAh! -it doesn’t really say anything specific about our client Ah so, I can write uh her name- his nameYeah, something like that Okay Mm-hmm Maybe I can write ‘falsity occur when Santillo’Okay, well who’s our client? Uh, Ms. Shane? Yeah Ah, okay So, remember that your conclusion should be about what’s the conclusion for our client. Ah, okay, for our client Mm-hmm

[00:10:01.09] Although it now seemed that Alima was beginning to understand that the conclusion sentence was meant to focus more specifically on a prediction for the client rather than the statement of a general rule, she was still unsure of how to realize this linguistically. She first suggested substituting the name of the plaintiff in the precedent case, and then the specific names from the client problem, into her original sentence structure. When I suggested that this still sounded like a general definition because of the phrasing, I recommended thinking of this sentence in terms of her overall argument: Week 6, Alima, IM4, 9/26 [00:11:56.29] 1 2

Alima: So maybe I can say that um oh- °I don’t know° AH: Okay. Well, what are- more generally, in-in Ms. Shane’s case, what are we trying to prove? 3 Alima: That the information that Mr. Rogers’ friend had published um were- were put her in false 4 light? 5 AH: Mm-hmm. Yeah. And is it the information itself or um6 Alima: No, the misrepresent- or maybe incomplete 7 AH: Yeah, kind of the way that he published it 8 Alima: Yeah 9 AH: Did it present a false picture of her 10 Alima: Yeah 11 AH: Yeah 12 So that’s the kind of sentence that I would wanna put as the- but turn it into a conclusion. So

148

Par t 2: Case Studies

13

now you’ve stated it as a question, you know, ‘Is Mr. Rogers’ presentation of uh- by publishing 14 her e-mail- their e-mail exchange- does that put her in a false light’ is kind of the issue 15 Alima: Mm-hmm 16 AH: And so, now you could answer that question in the thesis paragraph saying that either um 17 ‘Mr. Rogers’ um publication of the e-mail exchange either does or does not put um Ms. Shane in 18 a false light’ 19 Alima: Ah okay

[00:13:06.12] Although it seemed like Alima understood at first, her next suggested revision to the conclusion sentence still began with the same structure as all of her other rule statements. After I explained again why this was problematic and emphasized that the conclusion sentence needed to give a direct answer on the legal issue, Alima started to get closer to expressing her argument as a conclusion sentence: Week 6, Alima, IM4, 9/26 [00:15:12.12] 1 Alima: Um ‘Mr. Rogers forwarded- forwarded the e-mail exchange between him and Ms. Shane2 does put her in false light’ 3 AH: Yeah, you could say that

[00:15:26.27] Now that Alima had constructed a sentence frame that more effectively expressed whether or not the action of the potential defendant in our case met the element of falsity, we could now do more fine-grained work on lexicogrammar. Since the grammar of her current revision included two conjugated verbs whose relationship to the subject, Mr Rogers, was unclear, Alima and I started by discussing whether she wanted to emphasize the defendant or his action as meeting the element of falsity. In our discussion, she successfully nominalized the verb ‘forward’ to emphasize that his action was what put Ms. Shane in a false light. Although Alima incorporated this revised conclusion sentence into the overview and thesis paragraphs of her final draft of Memo I (Wk.8, Memo I: Final, 10/8), she continued to use rule statements in place of conclusion sentences for her RAs both in the next week (Wk.7, RA1 Larsen, 10/1) and in the final draft of her memo in Week 8 (Wk.8, Memo I: Final, 10/8). Although her initial understanding of the conclusion sentence as a rule statement seems to have extended across all instances of its use in the memorandum, she only applied her revised understanding of the conclusion sentence to the two specific paragraphs we had discussed in our Week 6 individual meeting. This issue continued into her Memo II assignments.

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

149

This lack of transfer in recognizing specific genre structures also appears to have occurred in her rule explanation paragraphs. In her first rule explanation on Santillo (Wk.6, RE1 Santillo, 9/24), it was difficult to recognize where the case facts ended and the rationale section began. There was also no clear indication of a holding for the case. When I asked her about this in our individual meeting, she recognized at least part of the problem: Week 6, Alima, IM4, 9/26 [00:35:33.24] 1 AH: Is there a holding here that I’m just not2 Alima: @@ No 3 AH: Okay. So that’s one thing, is just to remember that the rule explanation always has those 4 four parts, uh rule statement, case facts5 Alima: Holding um and rationale 6 AH: Yep

[00:36:01.24] Unlike in her thesis paragraph, where she had pointed out her intended conclusion sentence, Alima recognized that there was not a holding sentence in this paragraph. When I started reciting the expected structure, Alima completed my sentence for me, naming precisely the two parts of the paragraph that were the least clearly indicated in the rule explanation we were discussing. It was not clear, then, whether she hadn’t seen this problem when she had looked at her writing independently or if she had simply rushed through the assignment this week. Based on our discussion of the Santillo case in the same meeting, the main issue seemed to be that she had not fully understood the case yet when she wrote the paragraph. She re-wrote her Santillo rule explanation the evening after we discussed the case in our meeting, and in this revision and the final draft of the memo her paragraphs on the case were exemplary. From this revision onward, her rule explanation paragraphs throughout the rest of the semester included all of the required sections as well.

Coding information into legal categories Alima’s difficulty with distinguishing between a cause of action, its required elements, and the factors from case law that may be used to evaluate whether or not these elements have been met persisted throughout her Memo I and II assignments. In her Memo II research report, Alima stated the client’s legal issue broadly, leaving it at the level of the cause of action: ‘Whether Mr. John Garber is liable under the Anti-cybersquatting consumer Protection Act, ACPA, for operating a website with domain name which is similar to a well-known trademarks’ (Wk.9, Memo II: Research

150 Par t 2: Case Studies

report, 10/15). Although this was not inaccurate, it would provide little help for her in conducting her research since her client’s more specific issue was whether or not his actions met the element of ‘bad faith intent to profit’ under the Anti-Cybersquatting Consumer Protection Act (1999). The assigning memorandum students received at the beginning of this client problem implied this focus by telling them not to address the two other elements required by the statute or a related issue called the ‘safe harbor’ provision. Alima’s law TA did not address this problem in his comments on her research report, but when she submitted her rule explanation on Shields the next week (Wk.10, RE1 Shields, 10/22), he told her that her rule statement needed to focus more directly on the issue she had been asked to address. Like her issue statement in the research report, Alima’s rule statement in this assignment encompassed the entire cause of action, including all three of its required elements, and did not provide any information on the factors courts evaluate when addressing the focal element of bad faith intent to profit. In effect, as in her earlier assignments, this rule statement did little more than paraphrase the original statute. When Alima brought her law TA’s comments to our individual meeting in Week 10, she missed his intended meaning and thought that the main problem with her paragraph was that it lacked citation. Week 10, Alima, IM7, 10/24 [00:00:40.13] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Alima: What I understood from her- from his comments, that I just have to write more citation, likeAH: I think that’s the main thing, yeah. Let’s see, so- ((highlights parts of Alima’s RE1 Shields)) Okay. So, I think [law TA]’s point here about revising the rule statement to focus on the issue that you’ve been asked to discuss, I think that also relates to the rationale section a little bit. Alima: Mm-hmm AH: Um, so what’s the main issue you’re supposed to focus on in this memo? Alima: Whether- if he’s liable under the ACPA? AH: OkayAlima: OrAH: That’s kind of the big issue, but what’s the more specific issue? Alima: Bad faith intent to profit? AH: Yeah, bad faith intent to profit. Exactly. Um so, which two elements are we not really looking at here? Alima: Uh, I-I think liability? AH: Well, liability isn’t an element, that’s just kind of a general term for whether or notAlima: Oh, I wrote it down- Ah, okay. ‘Whether is it disti-distinctive’

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’ 18 19 20 21 22

151

Mm-hmm Right? That’s one, Mm-hmm And the other element is ‘confusingly similar’? Right, yeah. So ‘distinctive and famous’ and ‘confusingly similar’ are two elements that we 23 don’t need to deal with at all in the memo 24 Alima: Mm-hmm 25 AH: Um, so for the rule statement, I see that you do talk about bad faith- um intent to profit, 26 which is good, but it looks like there’s also ‘confusingly similar’ included in here 27 Alima: Mm 28 AH: And it’s really looking at the ACPA as a whole 29 Alima: Mm 30 AH: So the rule statement should be a little more focused in on specifically bad faith, um rather 31 than the entire ACPA AH: Alima: AH: Alima: AH:

[00:05:14.02] In the segment above, Alima did eventually recognize which elements were and were not at issue in the client problem, but her guess about ‘liability’ being an element that was not at issue suggested that she had still not fully mastered the distinctions we were considering. As we continued to look at her rule explanation, it became apparent that rather than providing rationale exclusively on the element of bad faith intent to profit, Alima was explaining how the court had evaluated all three elements, only barely mentioning bad faith, and ignoring the nine factors for evaluating it that were outlined by the court. When I explained to Alima that she would need to address the nine factors relating to bad faith intent to profit and that she could delete the part on the two elements that were not at issue, she made sure to confirm these legal categories again: Week 10, Alima, IM7, 10/24 [00:14:17.21] 1

And I would say, mention in more detail all of the different factors and what did the court 2 say about each different factor for bad faith 3 Alima: So uh the bad faith now is element, right? 4 AH: Bad faith’s the element 5 Alima: And the factor is like, does Zuccarini use this website as a vehicle? This is one of the 6 factors? 7 AH: As a … ? 8 Alima: A vehicle to earn more money 9 AH: Yeah, so they uh- remember there were those nine factors from the ACPA that the court 10 talks about AH:

152 Par t 2: Case Studies 11 Alima: Yeah 12 AH: Those are all the different factors you would have to deal with, and so you’re right that 13 commercial use is related to factor four I think here 14 Alima: Um #### here, bad faith. Ah okay! But- but like there are very many-

[00:14:59.07] At this point in our discussion, it seemed that Alima might have been starting to recognize the different levels of legal categories that she needed to address in her rule explanation, though she was still struggling with terminology. To address this, I related the case fact that she had provided, using the website as a vehicle to earn money, to one of the nine factors for proving bad faith intent to profit. Following this meeting, she appeared to recognize these factors and, in her following drafts, incorporated them more consistently into her rationale. At the same time, her confusion regarding the overall differences between the cause of action, elements, and factors continued to surface in her rule statements, such as in her repeated references to the defendant’s liability for the element of bad faith intent to profit, which persisted up until her first full draft of Memo II (Wk.13, Memo II: Rough draft, 11/12).

Highlighting relevant facts Because Alima had been looking at the entire cause of action rather than the specific element of bad faith intent to profit, the case facts she included in her first rule explanation for Memo II (Wk.10, RE1 Shields, 10/22) also included details that were irrelevant. As with the other cases she had read during the semester, Alima was unsure of how to locate the most important information for her client in the cases she was reading, likely due in part to difficulty with identifying the element at issue. She brought this point up herself in our meeting, recognizing that it was problematic: Week 10, Alima, IM7, 10/24 [00:11:15.27] 1 2 3 4 5 6 7

Alima: I tried- I tried to like uh to write the facts in general and like, because there’s- there are many facts that happened, so I don’t know what to include, and what I know it’s like, just two paragraphs should be- not more than that AH: Yeah. And that’s right. Um, so what I would think about for the facts is what facts, first of all, did the court think about when they were making their decision (.) about ‘bad faith intent to profit’ specifically Alima: Oh, oka:y

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’ 8

AH:

9 Alima: 10 AH: 11 12 Alima: 13 14 AH: 15 Alima: 16 AH: 17 18 19 20 21

Alima: AH: Alima: AH:

22 23 Alima: 24 AH:

153

And not really ‘confusingly similar,’ that’s kind of a different issue Mm-hmm ‘Distinctive and famous,’ we don’t really need to know any facts related to that. We wanna focus just on the facts that are related to the bad faith intent to profitOh, okay. So- but I think I have to write like something about the history of this mark, like when Shields start- started his mark and likeMaybe. What would that be important for proving? He’s first Mm-hmm. Okay. So, it sounds- because to me it sounds like if you’re talking about the history of the mark, the reputation of the mark, that to me sounds like distinctive and famous Mm That sounds like you’re trying to prove that first element Mm-hmm So, I don’t know if you need to get into a lot of detail. I think you can state it really briefly without getting into all the details about the history of the mark Ah, okay Mm-hmm

[00:12:39.19] Although she seemed to understand here that the facts that were unrelated to the element at issue could be eliminated, she did not change the content of this section in her subsequent drafts. The same issue came up again in her rule explanation on Mayflower (Wk.11, RE1 Mayflower, 10/29), however, and her law TA pointed this out in his comments. At first, Alima had difficulty figuring out what the problem with the facts she had included might be: Week 11, Alima, IM8, 10/31 [00:02:05.03] 1 2 3 4 5 6 7

Alima: About the relevant facts in this case AH: Mm-hmm. So, why do you think he’s saying these aren’t relevant? Alima: I don’t know AH: Mm-kay. Well, what factor are you focusing on in Mayflower, as far as the court’s rationale? Alima: The critique, maybe the criticism for the website? AH: Okay, so yeah, I think that’s a really good factor to focus on. Um so a lot of these factsyou’re giving me a lot of background information. So if we go up even a little bit further, so

154 Par t 2: Case Studies 8

‘Mayflower transit company provides interstate moving,’ ‘brought a suit,’ ‘arranged a move’9 Alima: Yeah, I know that that’s not important to say that Mayflower- Mayflower do the interstate 10 moving. It’s not important to say that, I know that, but like I don’t know- I didn’t know what to 11 write.

[00:03:04.04] I then talked Alima through her analysis, taking notes as she told me the relevant facts based on my questions about the factor she had identified: Week 11, Alima, IM8, 10/31 [00:03:06.07] 1

AH:

2 3 4

Alima: AH:

5 6 7

Alima: AH: Alima:

8

AH:

9 10 11 12 13 14

Alima: AH: Alima: AH: Alima:

What points do you think were important for showing- so you said critical purpose is important Mm-hmm Okay, so what things were important for showing that, based on the case facts? Why he creating this website, maybe? Uh-huh. How do we know that it’s for a critical purpose? Because he didn’t have- uh he just had one website or two, I think Mm-hmm, so he had ((writes in notebook)) one website for each company that he had a problem with Yeah And he had a couple of different companies Mm-hmm And so a small number of total websites too Yeah

[00:03:35.25] Alima went on to identify other facts that showed the defendant’s intention to critique the company through his website, including the facts that the content of the website was only related to critiques of the company and that he had not registered a large number of domain names unrelated to his problem, as defendants who had lost similar precedent cases had.

‘Thinking Like a (US) Lawyer’? Discourse Competence and Professional Vision Even at the end of the semester, Alima was still unsure of how to fit these facts into the rule explanation genre despite having now highlighted the relevant facts. With support, however, she was able to produce an effective summary:

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

155

Week 11, Alima, IM8, 10/24 [00:05:12.12] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33

AH: So I would focus on those [two Alima: [So uh should I start like saying uh, in the facts, that uh Prince had one website for each company to critique them? AH: I think something like that is a good start= Alima: =How can I start? AH: I would give a little bit of background information, just a- just a tiny bit, though. So if you were to tell somebody else a story, somebody who doesn’t know anything about this problem, and you wanted to say, ‘Okay, this is what happened in Mayflower. There was this guy …’ and what happened? Alima: Ah okay AH: How would you explain it? Alima: Maybe I can say like Prince had an- a bad experience with a c- a moving company, which- uh- its name is Mayflower and after that, after his- like maybe he’s- I think, like, stolen, so he make a web- made a website and then just to critique and try to like uh write his experience with this two companies AH: Mm-hmm. I think that’s good. That’s a pretty good start. Alima: #it’s #enough? AH: And then, how’re you gonna incorporate the one website for each company part? Alima: He just had one website for each company, and not um like a thousand domain names AH: Mm-hmm. Yeah, and I’d probably tell how many total websites, maybe, so they give a total of four or five= Alima: =Yeah, it’sAH: So I would mention the exact number, ‘cause I think that’s pretty important Alima: Mm AH: Um, was there anything else? So what about- So I noticed that in your rule statement, you mention commercial purposes, so what facts would be important for showing commercial or non-commercial purposes from Mayflower? Alima: Maybe I can say he didn’t use the website for commercial purposes, soAH: How do we know? Alima: There is no advertisements? AH: Perfect. I would put that in there. Alima: Ah AH: I think that’s a really key fact too, you know?

[00:06:58.24] Even at the end of the semester, Alima needed significant coaching both to identify relevant facts and to translate them into her rule explanation

156 Par t 2: Case Studies

paragraphs. When she received this support, she was able to write effectively, but this ability was limited to situations in which her performance was assisted through significant mediation. Though she was able to produce a high-quality written product in each of her final drafts, she still had difficulty producing such results on her own. Unlike the facts section in Shields, which we only looked at briefly and which remained static in her subsequent drafts, the facts in Mayflower changed significantly in Alima’s next draft (Wk.13, Memo II: Rough draft, 11/12), in which most of this section was removed, and in the final draft of the memo, where she eventually incorporated the key facts we had discussed in this meeting.

Developmental Trajectory and Mediating Factors Looking only at her final drafts, Alima would appear to have a good sense of both the memorandum genre and US legal analysis in addition to her overall high level of language proficiency. A closer look at our interactions, however, suggests that the level of her performance in these final drafts was not something that she was yet able to achieve independently. To some extent, this may not have been a question of actual ability so much as her perception of her ability. In our interactions, she responded quickly to mediation and required very little prompting to identify the legal categories, relevant details, and genre structures that she needed. This suggested that she should have been near the point where her understanding would transfer easily to the next task, allowing her to make significant strides in her development of the discursive practices characteristic of ‘professional vision’ within the US legal community. Her development of professional vision was surprisingly limited, however. Alima, like Weixin, was very diligent about seeking feedback, revising her work, communicating with her law TA, reading the textbook, and meeting with me. Looking only at her surface behaviors, it seemed like she was doing all the right things, and indeed, she was able to produce texts that met the expectations for the course. At the same time, Alima did not internalize much of the mediation that she received, needing instead to have it be constantly reinforced in each section of each assignment. Part of this issue may have been due to an overreliance on external support. More than any of the other focal participants, Alima talked about family members and friends she went to for advice on her legal writing assignments. During her time in the LL.M. program, she lived with her brother, who was studying in a different department in the same university. She often mentioned consulting her brother when she had questions about how to express her ideas in English while working on her legal writing assignments. She also mentioned asking him to read her assignments to help her identify problems in her writing:

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

157

Week 6, Alima, IM4, 9/26 [00:19:45.17] 1 Alima: The problem is here ((points)) 2 AH: Yeah, a little bit 3 Alima: Yeah, I know that because after finishing my homework, I used to make my brother read 4 it at- #not legal one 5 AH: Uh-huh 6 Alima: So when he read it, he told me I understood the idea very well and I know what the 7 problem, but this part, he couldn’t know what I want to say

[00:20:06.11] She also asked her father, who was a writer, for advice. At one point, he suggested having a partner read her memo aloud to her to help her identify problems with grammar or clarity. By the time she was working on her final revisions of the Memo I assignment, however, her brother had his own exams to worry about and was not able to do this for her: Week 8, Alima, IM6, 10/12 [00:12:09.21] 1

Alima: So- and my brother has a- an exam so he told me, ‘Please, no. I can’t do it. I hate your 2 memorandum too, so …’ 3 AH: @@@@ oh 4 Alima: ‘Cause he was suffering with me, with this memorandum 5 AH: @ 6 Alima: Like, it- every time, ‘[brother’s name], please help me with this work, I- I don’t know 7 how to say this in English! Help me!’ So he put a paper on his door: ‘Please leave me away. I 8 wanna study.’ 9 AH: Oh! @@ 10 Alima: ‘Go with your memorandum!’ 11 AH: @@@@ 12 Alima: So, this is the result ((shows bandaged fingertips))

[00:12:43.16] In fact, Alima was so nervous about her first memorandum that she had bitten the cuticles on all of her fingers until they bled. She showed up to our meeting that day with three neon-colored bandages on her fingertips. Alima also mentioned in her Week 6 individual meeting (Alima, Wk.6, IM4, 9/26) that she had received support from her former classmate, Jamal, another Saudi student who had been in the same preparatory program with her and Bader the semester prior. Jamal was enrolled in the other section of

158 Par t 2: Case Studies

the legal writing class and often shared the PowerPoint slides from that professor’s presentations with Alima. Since the assignments in the two sections were the same, Alima asked Jamal for additional explanation when she didn’t fully understand what she was expected to do. Although the numerous support systems she drew on scaffolded her reading and writing throughout the semester, this scaffolding did not allow her to build her ability to independently complete these assignments. Instead, this scaffolding came to form much of the internal structure of her finished products, without which they would have collapsed. She was generally hesitant to revise her work without getting explicit feedback or to put much effort into an assignment until she was absolutely sure that she understood what was expected. This created a dynamic in which Alima began by putting a more limited amount of work into the first assignments for a given client problem and then significantly more effort into subsequent drafts after we had talked through the task and the cases. Similarly, apart from the one instance of the RA at the beginning of the semester, in which she recognized the differences between her draft and the model answer on her own, she only revised the sections of her writing that we addressed directly in our meetings, and with these, she only made significant changes when we had talked through them in detail. Students were expected to revise their writing at least in part based on the legal writing professor’s review of student samples in class, but when she and I did not have time to look at her RA paragraphs from Week 10 individually and she did not receive feedback from her law TA, she refused to revise them, stating this refusal explicitly at the top of her Week 11 ‘revision’ assignment: ‘Since I did not get any feedback on my RA paragraphs I copied them as it is’ (Wk.11, 10/30, Alima, Shields RA2, Mayflower RA2). She then pasted the text of her RA assignments from the previous week below this statement. Similarly, when we discussed her Memo I case chart, she admitted that she had only read the publisher’s summary of the Larsen case because, as she said, ‘I don’t know what they want from me’ (Wk.5, IM3, 9/19, Recording B). After we talked through how to read the case in our meeting, she appeared willing to put in the necessary work to understand it, based on her description of the amount of effort she put into reading the case the following week and the improvement in her rule explanation on the case. When it came to the next case, Santillo, however, she did not put in the same amount of effort until after we had talked about the case together. This may have been a survival strategy, allowing her to focus her time only on activities that were guaranteed to provide favorable results, but her avoidance of the struggle necessary to apply what she had learned to new tasks inhibited her development. Alima presented two very different personae in her individual meetings with me and in in-class CBI sessions with her peers. In CBI sessions, she acted much like Bader typically did. She was the leader in her pair or group,

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

159

directing the flow of the activity by deciding when to move on to the next part of the task and frequently being the first member of the group to volunteer a response. She took an active role in explaining her understanding to members of the group who were struggling and even acted as a taskmaster, making sure all members of the group were participating evenly and following along with the others. In individual meetings, however, she often fell back on the phrase ‘I don’t know’ when I asked her to explain her understanding or to offer a possible revision. In fact, the frequency of this phrase in our individual meetings made it an almost characteristic expression for her. Analyzing the transcripts from both the CBI sessions and our individual meetings using AntConc concordancing software (Anthony, 2011), the phrase ‘I don’t know’ was the most frequent four-word lexical bundle in the data set, with 67 instances overall. Of the 46 instances spoken by Alima, 45 were spoken during individual meetings and one additional instance appeared in a side conversation with me during one CBI session. Across the four CBI sessions for which data are available for Alima, when I was not present, only her partners used this phrase. Although this phrase was common in transcripts with the other focal participants, it was usually I who was using it as a hedge rather than the students using it to deflect a question. On its own, the relative frequency of this phrase in Alima’s data may not be significant, but a comparison with the qualitative data discussed above starts to provide an interesting contrast between Alima’s performance in individual meetings and CBI sessions and between Alima and the other focal participants. It may be that Alima positioned herself as more of a novice through the use of this phrase in our individual meetings in order to elicit more feedback from me, whereas she may not have seen her peers as a reliable source of information during CBI sessions. On the contrary, in CBI, she appeared to be quite confident that she knew what she was talking about and was ready to explain this understanding to others, positioning herself as a more expert peer. Another factor that likely affected her follow-through with revising her paragraphs after our meetings was her frequent travels during the second half of the semester. In our Week 10 meeting, she mentioned that she had spent the previous weekend in Orlando and had hurriedly written her assignment for that week in a coffee shop (Field Notes: Week 10). The next weekend, she was in New York and almost got stuck there when the city was shut down due to Hurricane Sandy (Field Notes: Week 11). In our Week 13 meeting, she mentioned plans to be out of town the following weekend, right before the final draft of Memo II was due (Field Notes: Week 13). For a student taking a full load of law courses, this was a significant amount of time to spend travelling during the middle of the semester, and this likely influenced Alima’s ability to focus on her writing. In fact, considering the limited amount of time she had for studying during the second half of the course, it is impressive that she was

160

Par t 2: Case Studies

able to perform as well as she did. She did not mention travelling during the first half of the course, and she may have felt more confident in her abilities after she had completed the first memorandum, even though she did not receive her grade on the first memo until Wednesday of Week 11 (10/31). Once we started the second memorandum assignment, she realized that there was little new information in that half of the course. There were no new readings from the textbook, and the overall format for the memo, which was a major focus of the legal writing professor’s lectures, remained the same. By the end of the semester, she felt that the main lectures covered ‘the same thing all the time’ (Wk.13, IM10, 11/14, [00:00:14.01]). During the second half of the semester, she was more willing to miss the legal writing professor’s regularly scheduled class sessions on Mondays in favor of travelling and, in Week 10, although she made a point of attending our individual meeting on Wednesday in the afternoon, she mentioned that she planned to skip the group class that evening as well (Field Notes: Week 10). Alima appeared to be invested in succeeding in the course, as was evident in the stress she felt as she revised her final draft of Memo I and in her overall commitment to seeking feedback on her work. At the same time, she may not have been that deeply invested in developing her professional vision for legal practice in the United States. She did not plan to stay in the US and may never have needed to read another US legal opinion after she graduated, even if she ended up working in a transnational company. What she would more likely need was a high level of general language proficiency and the ability to recognize standard legal terms, particularly those common to whatever area of business law she chose to pursue. Her work in the LL.M. legal writing course may only have been relevant to her to the extent that it helped her achieve this end or to successfully fulfill the requirements of the LL.M. program itself. Alima’s responses on the exit questionnaire at the end of the semester indicated that she felt that she had been successful in developing her writing ability, particularly her grammar, through the course and individual meetings, and she also mentioned that the case reading strategies we had worked on together were helpful. At the same time, she did not mark any of the other intervention-based exercises as being particularly useful. When asked how the language instruction could be improved, she stated that it should include more ‘synonyms’ because ‘it is very important to learn legal synonyms to make strong arguments’ (Wk.13, Exit questionnaire, 11/14). It was not clear that Alima saw any connection between the legal concepts she had difficulty with, such as elements and factors, and the challenges she had with identifying relevant information in cases and using this information in her writing. Alima, like Weixin, seemed to believe that improving her writing was strictly a matter of lexicogrammar. To the extent that she perceived that the course allowed her to address this, especially through our direct work on her assignments in individual meetings, she was committed to it.

Alima : Dist inguishing Discourse Prof ic ienc y f rom ‘Professional Vision’

161

Alima did not appear to see a clear link between her work for the legal writing class and her professional goals. For her, the value of our meetings resided in polishing the formal aspects of her writing and understanding the cases she was reading well enough to write effectively about them. This presented a conflict between the stated goals of the course – indeed, the general understanding of the purpose of legal writing instruction in US law schools – and Alima’s priorities. The course purported to teach students not just how to write in a genre, but how to ‘think like a lawyer,’ specifically a US lawyer. Although there was significant evidence of Alima’s investment in improving her understanding of the specific cases used in the course assignments as well as the formal aspects of her writing, her interest did not extend to developing her ability to independently engage in the discursive practices of the US legal community. This may indicate a mismatch between the goals of the course and her own professional goals. As a result, Alima’s orientation to the course may reflect ‘learning to play the game of “doing being a student,” or getting by without actually internalizing the necessary linguistic and substantive content’ (Duff, 2011: 567, citing Rymes & Pash, 2001). On the other hand, it may also represent a strategic reframing of the course to fit her own goals.

Chapter Summary In this chapter, we have considered how the lens of ‘professional vision’ (Goodwin, 1994) can provide insight into learners’ development of disciplinary literacy by examining the case of Alima, a recent Saudi law graduate. Although she consistently succeeded in producing written assignments that fulfilled the expectations for the course, she relied heavily on external support to do this. Unlike some of the other participants, however, the work required for the course seemed to be well within her ZPD. In spite of this, Alima’s ability to independently complete reading and writing tasks did not seem to develop significantly over the course of the term. This case demonstrates how a mismatch between students’ goals and those targeted in the course may limit the effectiveness of instructional intervention, even when a student’s grades suggest otherwise.

Part 3 Addressing Connections between Language and Disciplinary Knowledge

8

Implications for Research and Teaching

As described in the introduction to the case studies, this book understands the development of disciplinary literacy as a process of qualitative change in learners’ ability to control and interpret meaning in discipline-specific texts. In examining learners’ development, we have looked not just at their final written products but also at their engagement in discursive practices associated with reading, revising and discussing disciplinary texts. Throughout this analysis, we have drawn on a definition of discourse that emphasizes meaning-making, in line with Blommaert’s (2005: 2) characterization of discourse as ‘a general mode of semiosis, i.e. meaningful symbolic behavior.’ This view sees discourse as ‘language-in-action, and investigating it requires attention to both language and to action’ (Blommaert, 2005: 2) Through the case studies presented in Part 2, we have attempted to investigate both how learners understand the texts that they read and write and how this understanding plays out in activity. Throughout Part 2, we saw four very different trajectories. While both Hong and Bader showed marked development in their ability to engage in local discourse practices associated with disciplinary literacy, Weixin and Alima made less progress, even though Alima still managed to earn good grades in the course. Each participant’s orientation to and understanding of reading and writing tasks as well as their actual performance in their written assignments shed light both on the intersections between their developing linguistic proficiency and on their ability to connect this knowledge to key common law concepts in their reading and writing. After briefly reviewing how each participant oriented to the tasks of writing memoranda and reading cases, we will consider how participants’ understanding of language and law influenced their performance in the course. We will then examine other factors shaping participants’ development across the term, and finally consider future directions for teaching and research in ESP and disciplinary writing. 165

166

Par t 3: Addressing Connec t ions bet ween L anguage and Disc iplinar y Knowledge

Orientation to Tasks and its Effect on Disciplinary Literacy Hong Hong oriented to the task of writing the memorandum as an opportunity to analyze a legal problem and was more interested in communicating her ideas than in perfecting the formal aspects of her grammar, which she could already achieve with minimal intervention. At the beginning of the semester, Hong understood the overall purpose of the memorandum as a defense of her client and focused almost exclusively on arguments that would support his or her case. By the end of the semester, through discussion with her peers, she began to see that her analysis should address both sides of the client’s problem and that this was part of her professional responsibility in this context. From the beginning of the semester, Hong realized that she was meant to take on the role of a practicing attorney, a role that she had not yet performed herself. Her writing initially reflected an understanding of this role that was overly focused on advocacy for the client, but eventually moved toward providing an objective analysis for a senior attorney, reflecting a more complete understanding of the purpose of the memorandum. Hong’s reading of cases changed significantly across the semester. While at the beginning of the course, she read cases to identify the relevant statutes for her client’s problem, she later made the necessary shift toward reading cases to understand the court’s rationale and to identify factors that were relevant to the court’s decision. Hong began the semester by reframing the client problem through the lens of her prior training in Chinese civil law and then attempted to address the assignment by focusing on statutes or the closest texts she could find. As the semester continued, she slowly reoriented her reading. As she began to internalize the difference between a rule from case law and an original rule of law, her reading shifted as well, allowing her to attend to the court’s rationale. This in turn enabled her to write more effective rule statements and rule explanation paragraphs.

Weixin Weixin similarly recognized her intended role as an attorney giving advice on a client problem but oriented to the memorandum more as a grammar exercise, drawing on sample paragraphs from the book as a strict template that she needed to master correctly. She used not just the broad move structures that were required for the assignment, but rather the exact sentence structures from the sample paragraphs in the textbook. She then substituted information from the client case as if it were a cloze exercise, without attending to the overall coherence or meaning of the emergent text that she had created through this process. The clearest example of this came from her

Implicat ions for Research and Teaching

167

first rule application paragraphs, which followed the model paragraph from the textbook nearly sentence by sentence. In our meetings, she frequently asked about the meanings of individual words, particularly from the assignments themselves, and sought feedback on grammar, pronunciation and word choice. Weixin understood that she needed to draw out legal principles from the court’s rationale in her reading of cases from the beginning of the semester, but her focus on the overall format of the RA paragraph prevented her from seeing that, in her own writing, these rules needed to be connected to the client’s case through specific factual analogies rather than just broad summaries of case facts. Instead, when she tried to move away from the mechanical sentence-by-sentence pastiche of her first RAs, she interpreted the paragraph outline too broadly, using the same group of client case facts across all of her RAs in multiple drafts. Although her understanding of the format of the RA changed over the course of the term, she continued to orient to it as a fill-in-the-blanks exercise.

Bader Like Weixin and Hong, Bader interpreted his role as that of an attorney representing a client, but he had a stronger awareness of the need to represent both sides of the client’s case. In his analysis, he weighed both the strengths and weaknesses of the client’s position and based his arguments consistently on analogies to precedent cases. Bader oriented to the memorandum as both a means to explore a legal argument and a tool for learning how to better express his ideas in English. Bader wanted to know what range of linguistic choices he had for expressing his meaning, or alternate meanings, and how each of these choices could help him nuance his argument differently. For Bader, learning to write the memorandum involved carving out ‘free space to invent’ within the limits of the genre. When the genre conflicted with his own sense of effective rhetorical structure, he wanted to understand the rationale behind the genre’s boundaries before he was willing to fully accept its constraints. This played out in his improvised structure for the RA section of his final memorandum, which did not follow the precise format from the textbook but reflected a clear understanding of the requirements of the genre. For Bader, the memorandum was a tool for making meaning and for learning to represent himself as a legal professional in English. Although Bader already understood the need to draw out a legal principle from precedent case law at the beginning of the course, his reading of cases became more acutely focused on case facts as the semester went on. Although he had a good basic understanding of the facts of the cases he read at the beginning of the semester, he became more attentive to identifying and understanding legally relevant details by the end of the course. This played out in his writing through his more accurate rule explanations as the semester continued.

168

Par t 3: Addressing Connec t ions bet ween L anguage and Disc iplinar y Knowledge

Alima In contrast to the other participants, Alima oriented to the memorandum more as an academic exercise than as a simulation of legal practice. This was most evident in her initial RA paragraph, in which she used the client’s case to argue for an outcome for the precedent case. Throughout the term, Alima relied heavily on individualized feedback and generally used it to perfect her writing as well as focus her reading, but she did not seem interested, or perhaps confident, in developing her ability to do either independently. This may have come in part from a focus on being a ‘good student’ and being successful in the course rather than on a broader emphasis on developing her ability to engage in discourse practices specific to the US legal system. This focus could, in turn, be due to her history as a learner, in that her only experience with law thus far in her career was in an academic context. It may also stem from her professional goals after graduation, which did not seem likely to require the specific genres presented in the course. Although, from the perspective of the legal writing professor, the goals of the course were less about mastering specific genres and more about internalizing common law approaches to argumentation, connections between these analytical frameworks and broader genre networks that could have been more relevant to Alima were not addressed explicitly in the course. Alima, like many other students, may not have recognized these potential connections.

Connections between Language and Disciplinary Knowledge in the Case Studies Linguistic influences on legal understanding Although participants’ understanding of and orientation to reading and writing tasks clearly influenced their success in the course and their development of L2 legal literacy, other important factors also came into play. For Weixin for instance, her difficulty with recognizing both lexicogrammatical forms and meanings played a significant role in limiting the amount of progress she was able to make in the course. This alone might not have been determinative, but when it was coupled with an orientation to language that emphasized form over meaning and correctness over effectiveness, it became difficult for us to even find time to work on more fundamental issues in her writing. The other participants all had greater lexicogrammatical awareness, which allowed them to correct many of their own formal errors with only minimal prompting. This was likely an important part of what allowed them to get higher grades on their writing, though as we saw in Alima’s case, this alone was not enough to foster her legal literacy development.

Implicat ions for Research and Teaching

169

Translation played a more complicated role in participants’ development. For Hong, for example, it inhibited her development at a couple of points in the semester, such as when she tried to find a Chinese equivalent for the tort of ‘false light invasion of privacy’ and then re-translated this back into English as ‘defamation,’ a separate tort with different elements in the US legal system. Her attempt to find what she referred to as a ‘Chinese translation’ of the Anti-cybersquatting Consumer Protection Act (ACPA) also led her astray, shifting her focus to distinctions that were irrelevant to the US statute or associated case law. By contrast, Weixin drew on an effective Chinese translation of the term stare decisis in her discussion of the concept of precedent. This allowed her to quickly recognize connections between the concept and her analysis of the rule explanation paragraph. Neither Hong nor Weixin was attempting to translate full texts word by word, but they each used translation as a tool for mediating their understanding of key concepts. In Hong’s case, she attempted to draw equivalencies between US legal concepts and Chinese legal concepts, which became problematic for her analysis. In Weixin’s case, however, she drew on her previous study of US law while in China, contextualizing her translation of the focal concept of ‘precedents set rules’ within the framework of the US common law system. Her identification of the Chinese translation for stare decisis relied not on finding direct correspondences between the two legal systems, but instead on using a Chinese term for describing a common law concept that she had previously learned in her L1. This was an effective strategy for her. Differing rhetorical expectations also influenced participants’ receptiveness to the genre conventions of the discourse community for whom they were being asked to write. Hong sometimes found it difficult to adapt to the genre expectations in the memorandum, particularly the use of the conclusion sentence at the beginning of the RA paragraph. Although she eventually adopted this convention in her writing, she indicated that this genre structure seemed awkward from a Chinese perspective. Bader similarly resisted the genre conventions of the rule explanation paragraph, feeling that it would be more effective to give the holding before the case facts. As with Hong, he was more willing to adopt the expected structure once we had a chance to talk through some of the assumptions behind it and how it made sense for a US legal reader. For both students, comprehension of the rationale behind genre conventions was a key step toward more effectively meeting genre expectations.

Legal influences on linguistic understanding Likewise, participants’ legal training shaped their understanding in various ways. For Hong, her prior analytical framework, based on analysis from statutes or the civil code, played a significant role in mediating her understanding

170

Par t 3: Addressing Connec t ions bet ween L anguage and Disc iplinar y Knowledge

of what the law was, and consequently, her initial understanding of the judicial opinion and legal memorandum genres. For Bader and Alima, while they were both more readily able to use the US common law legal framework, they appeared to rely on previous training in criminal law from their home country in their focus on ‘witness identification’ in their reading and initial analysis of the Pre-Memo I problem. The notion of reasoning by analogy is present in the form of qiyas (‫ )ﻗﯿﺎس‬in Islamic jurisprudence (Hasan, 1986), and this may have positively contributed to Bader and Alima’s ability to understand the function of the RA more easily. Weixin, by contrast, did not seem to draw on Chinese legal concepts or standards in her analysis, but instead drew on US legal concepts from her other coursework at the law school, particularly in the area of torts. Unfortunately, her emphasis on the ‘duty of reasonable care’ in her RA for Memo I was not relevant to her client’s legal problem. Although Weixin attempted to transfer concepts from the same area of law (torts) within the US legal system, this was not effective. Her attempt to transfer these concepts showed her active engagement with trying to understand US tort law and draw connections among her courses, but in this instance, the framework that she was attempting to transpose onto the client problem was not transferable. Weixin was still developing her expertise in US tort law, and her reframing of the problem into another area of tort law suggests that she understood the assignment as looking for legal justifications beyond the text of the relevant precedent cases themselves. While she may have been able to supplement her argument with such principles if she had correctly identified them, her search for extratextual arguments showed that she did not yet recognize the need to base her primary arguments directly on the language used by the court in relevant precedent cases. Here, it was not so much her first language or legal system that mediated her development, but her concurrent study of other areas of US law. Like their legal training, participants’ professional experience also mediated their understanding of the rhetorical situation presented by the memorandum. In Bader’s case, his four years of professional experience seemed to help him imagine the needs of the reader better, allowing him to anticipate the need to address both sides of the client’s problem. Similarly, Weixin’s professional experience shaped her interpretation of the task, though for her this involved an awareness of the client’s perspective as a paying customer and of competition in the market for legal services. In the same way, given that Alima’s only work experience came from an academic setting, her interpretation of the task as an academic exercise is also understandable. Like Alima, Hong also did not have professional experience in law, but she was better able to imagine her role as an attorney than Alima. At the same time, Hong’s unwillingness to address counterarguments or hedge her conclusions seemed to come in part from the fact that she had not yet practiced as an attorney.

Implicat ions for Research and Teaching

171

Other Factors Influencing L2 Legal Literacy Development Students in the LL.M. program needed to maintain a full schedule of courses in order to complete the one-year, 24-credit program on time. As a result, they often had to balance heavy workloads among their courses. In Bader’s case, the additional time pressure created by his financial accounting course, which ended a month before the legal writing course, limited his ability to invest as much effort as he would have liked into both revising his first memorandum and conducting the initial research for the second memorandum. Similarly, Weixin and Hong both mentioned their torts class as a major focus of their studies. Hong spent the majority of her study time on torts at the beginning of the semester, to the detriment of her legal writing. As the semester went on, however, she began to see connections between the two courses and put more and more effort into her legal writing assignments. Weixin occasionally brought in readings from torts so that she could ask about vocabulary words, using time that would otherwise have been spent reviewing her legal writing assignments. For many students, the legal writing course took a back seat to their other courses, likely due in part to the fact that it only counted for two credit hours while most of their other courses counted for three or four credits. Moreover, many students came to the LL.M. program seeking specialized training in areas of law like arbitration or energy law, and many had little interest in staying in the United States in the long term. As a result, the legal writing course, which focused on the learning of the norms of local US legal practice and drew on local client problems in criminal and tort law, seemed irrelevant to many students. Efe, Bader’s partner in one of the CBI sessions, expressed this frequently in our individual meetings and in some of the inclass recordings, and such sentiments were also expressed by other students. While the focal participants in this study were not openly critical of the course, with the exception of perhaps Alima, they often prioritized their other classes. Students’ emotions also mediated their performance in the course. For Alima, even though the pressure of getting a good grade on the first memorandum caused her to injure her own hands, it also served as a motivating factor that allowed her to work toward the grades she wanted. Once she was more confident in her ability to succeed in the course, she put less independent effort into her work. By contrast, Weixin’s anxiety about getting every pronunciation, word, and conjugation right prevented us from addressing more substantive issues in her work. Hong’s avoidance of criticism during the first CBI session also inhibited her development by preventing her from closely examining her own work. Her later frustration during our Week 7 individual meeting, however, served as a positive turning point in her

172

Par t 3: Addressing Connec t ions bet ween L anguage and Disc iplinar y Knowledge

development. In Bader’s case, a negative shift in the affective dynamics of classroom participation with his partner slowly silenced him during an inclass CBI session. A reverse shift in these emotional dynamics later in the same session then enabled him to become an active contributor to the discussion again. This turnabout in his participation was important because it allowed him to participate in the verbalization that would help foster his continued development. Participants’ emotional responses played an important role, and emotions that typically have either positive or negative connotations could sometimes have the opposite effect on their development.

Looking Below the Surface: Same Words, Different Trajectories Another important aspect of the case studies is that they demonstrate the need to consider not just students’ independent performance, but also the extent of mediation they need to improve this performance as well as the context in which this performance occurs. Perhaps the most striking example of this can be found in Bader’s trajectory. The grade that Bader received on his first memorandum placed him in the bottom third of his class (grade = 72.5, n = 24, mean = 77.1, SD = 7.8, 30th percentile). Taking only his low TOEFL score (80 on the iBT) into account, this would not have been surprising. His shift to a grade of 92.5 (n = 24, mean = 87.3, SD = 6.3, 75th percentile) on the second memorandum, however, is harder to explain if we consider only his TOEFL score or initial independent performance in his writing assignments. There does not seem to be a radical change in his understanding of either linguistic or legal concepts across the semester, yet Bader made one of the greatest leaps in the class in his grade from the first to second memorandum. A closer look at his trajectory helps explain what was happening. There were many points in the term where Bader’s surface-level performance mirrored that of other participants who struggled more in the course, particularly Hong. A closer look at the context in which these similar statements or assignments occurred shows that these similarities in surface performance did not indicate a similar level of legal literacy development. For example, both Bader and Hong omitted the rationale section in their first rule explanation paragraphs. Looking only at these two texts in isolation would suggest that neither student understood the importance of the court’s rationale in their reading of cases or in making their argument. Looking at these two paragraphs in the context of each student’s overall trajectory paints a very different picture, however. In my individual discussion of this rule explanation paragraph with Hong, she repeatedly rejected the idea that looking at the court’s reasons for its decision should be important. Her rejection of the rationale as a reading

Implicat ions for Research and Teaching

173

focus was also evident in the case briefs she had submitted in the assignments leading up to her rule explanation, where she instead listed every reference to a statute that she could find in the text of the case. Bader’s situation was different. In his case briefs leading up to this same assignment, he was careful to include the court’s rationale. Likewise, in our individual meetings and in the in-class CBI sessions, he clearly recognized the need to include the court’s rationale in the rule explanation paragraph and was not resistant to including it after we had discussed it together, even when he resisted other structural features of the genre. Similarly, in their Memo I assignments, both Bader and Hong mistakenly used an excerpt from the Restatement (Second) of Torts as a rule statement. Again, contextualizing these assignments as part of a larger trajectory reveals that although they were using many of the same words, they were not using them for the same reasons. Based on the discussion in our individual meetings, for Hong, the Restatement was simply serving a placeholder for her rule statement while she struggled with understanding the rationale of Larsen, which was a particularly difficult case. This became clear as we talked through her difficulties with understanding the case in our individual meetings and her explanations of her changing understanding of the purpose of the rule statement. For Bader, however, the use of the Restatement in his rule statement for a related case, Santillo, came after he had already developed a very effective rule statement for this case in his case brief. As he demonstrated in our individual meeting, Bader understood Santillo better than most students in the class, and his use of the Restatement as a rule statement for this case served a very different purpose than it did for Hong. In Bader’s case, his use of the Restatement came from his developing understanding of the scope of a common law rule as well as his growing understanding of the role of the Restatement as a secondary source. Even their participation in CBI sessions revealed important instances in which the use of the same words reflected different trajectories. In the rule statement evaluation exercise during the first CBI session, both Hong and Bader focused on superficial aspects of the rule statements that they were evaluating, particularly length, rather than their substantive content or linguistic effectiveness. While in Hong’s case, this focus on length seemed to reflect both her unwillingness to examine her own writing closely as well as a misunderstanding of the purpose of the rule statement, for Bader, it seemed to be linked more to the affective dynamics of his interactions with his partner, Maqsood. When these affective dynamics shifted part-way through the exercise, Bader’s analysis became much more sophisticated and better reflected his overall level of understanding as demonstrated in his written assignments and individual meetings. Hong’s explanations, however, did not undergo such a shift during this session, and her understanding of rationale as superfluous at this point in the term further explains why she saw much of the information provided in other students’ rule statements as little more than excess length.

174

Par t 3: Addressing Connec t ions bet ween L anguage and Disc iplinar y Knowledge

Connecting and Contrasting Disciplinary Literacy Across Languages and Cultures Although biliteracy (Gentil, 2011) was not a focus of the study itself, the ways in which students navigated their prior linguistic and legal training and experience in engaging with new genres offers insights relevant for future research in this area. Across the case studies, there were several areas in which there was evidence of opportunities for learners to transfer, contrast, blend or build on their prior disciplinary and linguistic knowledge as they developed the ability to engage with new genres. These opportunities touched on various aspects of genre knowledge (Tardy, 2009), and these areas may help provide insight into aspects of a common underlying proficiency (Cummins, 2008) for advanced disciplinary writing across languages and cultures. Learners with prior professional experience in law were often able to transfer aspects of their knowledge of the rhetorical situation, such as attention to office concerns and client needs. Even students who had only had academic experience in the field were able to draw on broad aspects of disciplinary knowledge from their prior legal training, such as recognizing distinctions between civil and criminal cases and recognizing different degrees of offenses, such as felonies versus misdemeanors. Recognizing these distinctions allowed them to better understand the kinds of information they should be looking for as they read cases, as well as what information readers would likely want to know in their memoranda. For students who had already learned about the common law system in their L1, they were able to transfer this prior content knowledge to better understanding some of the assumptions behind common law genres. Learners also demonstrated the ability to contrast rhetorical preferences between their L1 and L2, the use of different sources of law between legal systems, and differences between more traditional academic genres and more practice-oriented genres. As the term went on, they were further able to blend general process-related skimming and scanning skills with new analytical frameworks to focus on different aspects of the texts they were reading. In addition, learners built on their existing formal knowledge of English by expanding both their knowledge of legal terminology and their ability to create more nuanced meanings in their texts through developing greater control over their use of lexicogrammar and new discourse conventions.

Developing as an ESP Practitioner In addition to providing insight into the L2 legal literacy development of the focal participants, the study also has implications for my own development as an ESP practitioner, and for the development of ESP practitioners

Implicat ions for Research and Teaching

175

more broadly. In particular, the study highlights how the design of the pedagogical intervention and my ability to provide feedback to students were shaped in part by some of the same aspects of genre knowledge (Tardy, 2009) that students needed to develop: formal knowledge of genre conventions and discipline-specific terminology; knowledge of the imagined rhetorical situation presented in students’ assignments; process knowledge associated with case reading and the use of legal databases and citation manuals; and some disciplinary knowledge of the analytical frameworks students were expected to use as well as a highly circumscribed knowledge of the specific legal issues from the client problems addressed in the course. My knowledge base in this area developed through engagement in a variety of different activities, ranging from cooperation to collaboration to team teaching (Dudley-Evans & St. John, 1998). By the semester in which the study was conducted, I had already worked with international LL.M. students at this law school for two full academic years. During this time, I worked closely with the director of the LL.M. legal writing program, who both developed and taught the main course, and the law TAs who assisted with the course. I sat in on and assisted with two full semesters of legal writing courses using the same client problem assignments that were used during this study. I further assisted with additional legal writing courses focused on other legal genres, such as client letters and appellate briefs; co-taught short-term on-site and international courses on legal writing with the director of the program; developed and co-taught a semesterlong course that was taught as a language-focused companion to a constitutional law course; and co-authored an online course on common law analysis and language with faculty from the same law school. Moreover, during the year before this study was conducted, I had collected student writing on the same client problems for a corpus-based study (Hartig & Lu, 2014) in addition to performing a cognitive linguistic analysis of expert writing in this genre (Hartig, 2016). Through participation in national and international academic conferences, I was also put in touch with faculty involved in legal English instruction and legal writing generally at other institutions. My interactions with students that are documented in the previous chapters were thus part of a larger trajectory of my own development as an ESP practitioner. Throughout this process, I benefitted from several affordances: familiarity with the client problems and cases addressed in the course as well as how law faculty had analyzed them; an ‘apprenticeship of observation’ (Lortie, 1975) in which I was able to watch highly skilled professors teaching legal writing and doctrinal courses; extensive mentoring from the law school faculty and staff with whom I increasingly collaborated on curriculum design projects; opportunities and resources to conduct research on the target genres that students were learning; a network of professional contacts with knowledge of the specific challenges involved in learning law in a second language; and access to law library facilities with ample resources on legal writing and

176

Par t 3: Addressing Connec t ions bet ween L anguage and Disc iplinar y Knowledge

legal education more broadly. Both administrators and faculty at the law school were open to exploring new ideas for offering instructional support and afforded me a great deal of professional autonomy in my work. In many ways, these factors provided an ideal context in which to develop the kind of discipline-specific language instruction advocated in Hyland (2011) and elsewhere. Support and guidance from law school faculty and others in the field helped me chart a path through ‘lawyers’ land’ (Howe, 1993), enabling me to better connect the language support I offered to students to important forms of disciplinary knowledge.

Considerations for Research and Practice Considerations for ESP and academic literacy The data presented in the case studies offer several implications for teaching and research in ESP and for disciplinary literacy development generally. The study suggests that there is a useful place for disciplinary concepts in ESP, and that researchers and practitioners would benefit from continuing to explore the kinds of discourse-structuring concepts identified here. Models for identifying such concepts could come from research in education on threshold concepts (Meyer & Land, 2006), among other areas. While research on threshold concepts has generally not looked closely at how such concepts play out in discourse, this is an area in which applied linguists would be able to make a significant contribution while at the same time opening up a new perspective on language learning in the disciplines. Such research could offer new ways of thinking about the role of disciplinary knowledge in ESP and provide another way to help learners situate their language learning within disciplinary ways of making meaning. Helping learners understand the connections between these linguistic forms and the ways in which they instantiate disciplinary meanings has the potential to help learners make better sense of genre conventions. Emphasizing disciplinary specificity in this way can serve as yet another tool for helping students to connect texts to their disciplinary contexts. While this study has offered one possible model for this, further work in this area would be valuable. The study has also offered an attempt at drawing on cognitive linguistics in the teaching of genre. While much of the existing research in the application of cognitive linguistics to language teaching has emphasized constructions at the word, phrase, or sentence level (De Knop et al., 2010; Littlemore, 2009; Tyler, 2012), this study offers a way of using conceptual blending theory (Fauconnier & Turner, 2002) to help explain patterns at the paragraph and text level by highlighting the different domains of meaning that are blended across the text and how each domain is profiled differently across different sections of the text. Future research may consider other ways in

Implicat ions for Research and Teaching

177

which cognitive linguistic approaches to genre (e.g. Deignan et al., 2013) could be applied to the learning of disciplinary language. The concept-based intervention used in the study further highlights ways in which linking discourse-structuring concepts to cognitive linguistic models of discourse can be a way of demonstrating connections across a genre network. The concept of precedent was relevant to genre conventions in the judicial opinions that students read in both casebooks and professional databases. This concept also shaped the structure of the practice-oriented memos that students wrote in their legal writing course as well as the kinds of essay responses used for exams in doctrinal courses and the bar exam. Future work in ESP may consider whether making similar connections across genre networks would be possible in other fields. The case studies presented here show that while learners’ lexicogrammatical proficiency plays an important role in their ability to communicate in their chosen disciplines, the surface features of their texts may belie the current state of their understanding. As Wingate (2015: 1) points out, ‘the difficulties students encounter at university tend to be trivialized as language problems at the level of grammar and spelling,’ and this study further highlights ways in which such assumptions are problematic. Furthermore, students themselves may perceive their difficulties in such terms, as in Weixin’s case. Such perceptions shape students’ acceptance of both instruction and feedback on their writing and need to be addressed explicitly in the classroom.

Considerations for faculty in the disciplines The study likewise suggests several considerations for faculty in the disciplines. One of these is a need to carefully consider whether or not evaluations of student work adequately reflect faculty’s instructional goals. For example, although Alima scored consistently higher than Hong on her assignments, Hong developed much more in her ability to independently engage in local disciplinary literacy practices. It may be useful to take students’ reading and writing processes into account in assessing student work throughout the course of the semester, even though this may seem impractical in large classes. In this program, however, there were several opportunities through which such assessments could have taken place. For example, each student was required to meet with their legal writing professor individually at least once or twice during the semester, and many also met with the language specialists and law TAs individually on a regular basis. An evaluation focusing on changes in students’ ability to engage in disciplinary reading and writing practices could be carried out in such sessions, and dynamic assessment (Lantolf & Thorne, 2006; Poehner, 2008) could be an effective model for doing this. In this way, students would be evaluated not just on their final products, but also on their changing approach to reading

178

Par t 3: Addressing Connec t ions bet ween L anguage and Disc iplinar y Knowledge

and writing legal texts. Such a shift in evaluation would also likely shift students’ approach to the course. Students’ responses to written comments on their work also suggests the need to further attend to the use of key disciplinary concepts as well as indirect phrasing. In interpreting feedback from their law TAs, students often misunderstood comments on their papers, especially those that that were phrased indirectly. When Hong read her law TA’s initial comments on her work, the only message that she took away was that her writing was ‘in the good track,’ even though a closer reading of his comments suggested that there were significant problems with her analysis and reading comprehension. While the TA may have been using more indirect language as a form of politeness, this did not communicate to Hong that she needed to change what she was doing. Similarly, Weixin interpreted her TA’s advice to ‘add more citations’ as a need to find a citation for the fictional client’s case. Likewise, when Bader received feedback about changing the order of the various moves in his rule explanation paragraph, he interpreted his TA’s comment that he should move the case facts before the holding as a recommendation to place the case facts at the very beginning of the paragraph. Alima found herself at a loss when trying to address her TA’s comment that she should ‘focus on the issue,’ since she had interpreted the word ‘issue’ to mean the entire cause of action, which she had already highlighted clearly. All of these examples suggest that disciplinary terms that seem clear and straightforward to experts in the disciplines may be more opaque to learners, particularly when the meaning of these terms differs in other systems. For the learners in this study, the connections between the legal writing course and their other courses and professional goals were often not selfevident. By showing students how the genres they are learning are linked to broader genre networks (Tardy, 2009) relevant to their other coursework and professional work, it may be possible to increase student buy-in from the beginning of the course. In the case of legal writing courses such as the one presented in this study, concrete examples of such connections could include showing how principles of common law argumentation found in the memorandum and the cases students find on legal databases are linked to similar linguistic and discourse structures in the casebook readings that they will complete for their other coursework, responses to hypothetical fact patterns (similar to the legal problem questions described in Howe (1990) and Tessuto (2011), among others), and the bar exam. Since students’ motives and goals shape their development, it may also be necessary to find better ways to tap into these and to question whether or not the goals targeted in the course are commensurable with students’ goals. For example, the focus on local practice in the legal writing course in this study did not appear to align well with students’ needs and goals. By contrast, a more international focus would likely have been more relevant to students’ professional trajectories. One example of these kinds of internationally oriented

Implicat ions for Research and Teaching

179

topics is Mark Wojcik’s list of topics from his closing plenary at the 2015 Global Legal Skills Conference, and further work in this area would likely prove to be more motivating to students who intend to work in transnational contexts. As Silver (2013: 550) points out, international LL.M. students are often incorporated into US classrooms in a way that stresses the ‘one-way influence from the school to the international student.’ This is an issue not just in legal education but in other disciplines as well. In line with widespread institutional goals that value incorporating global perspectives in the classroom, courses that focus on the kinds of transnational contexts described above would benefit not just international students but also local students who may not have immediate access to opportunities to study or work abroad. Achieving these reciprocal benefits would require more than just the physical presence of international students in courses focused on local norms, but rather structures of participation that would require students to engage in mutually-necessary, goal-directed activity. As Silver (2013: 550) highlights in her examination of international students’ experiences in negotiation courses designed around such principles, ‘the intentional pairing of students on assignments that deliberately require interaction while refraining from privileging the US student’s comfort in the learning environment was transformative.’

Conclusion

This book has used law as a lens for considering ways in which disciplinary knowledge extends beyond content knowledge, shaping the texts that students read and write. Although law is ‘a less universal subject than science or medicine’ (Swales & Bhatia, 1983: 99), it seems worthwhile to consider whether there may be similar discourse-structuring concepts that could better allow students to make connections between the way their disciplines structure knowledge and how this plays out in disciplinary texts. If so, we may gain another tool through which we can help students connect their linguistic choices to the discipline-specific meanings they wish to communicate.

180

Epilogue

Looking back across the trajectories of the four participants described in the study, it is important to remember that each of these participants represents a unique combination of personal history, orientations to the course, and institutional and personal circumstances. As such, these participants should not be mistaken for ‘types’ of students. The students described here are not representatives of broad categories, but individuals who shape and are shaped by a number of complex and changing factors. While their relative success or development is described here, none of these students were determinatively bound to success or failure. For those who were less successful, more effective pedagogical intervention may have enabled them to progress further. At the same time, for those students whose goals were fundamentally at odds with those of the instructors or the institution, their own definitions of success and development may have been very different from those described here. In fact, none of the participants were uniformly effective or ineffective as either language learners or as law students more broadly. Each participant used both effective and ineffective forms of mediation, whether by choice or by the constraints imposed by factors outside of students’ control. Similarly, what students did was often not as important as why they did it. As such, it is important to remember Gillette’s (1994) caution against trying to extract a list of effective strategies from the descriptions of participants’ activity. Instead, the quality and history of these actions is the basis for any insights provided by the study. The study is not meant as a prescription for what an effective learner should do or avoid so much as a description of how students navigate the process of legal writing development more or less effectively and what factors foster or inhibit this development.

181

References

ABA legal education section reports preliminary data on non-J.D. enrollment growth, 2000–2012, (2012) December 21, 2012. See http://www.americanbar.org/news/ abanews/aba-news-archives/2013/08/aba_legal_education0.html (accessed 12 March 2014). Abbuhl, R. (2005) The effect of feedback and instruction on writing quality: Legal writing and advanced L2 learners. PhD thesis, Georgetown University. Abbuhl, R. (2006) Hedging and boosting in advanced-level L2 legal writing: The effect of instruction and feedback. In H. Byrnes, H. Weger-Guntharp and K.A. Sprang (eds) Educating for Advanced Foreign Language Capacities: Constructs, Curriculum, Instruction, Assessment (pp. 152–166). Washington, D.C.: Georgetown University Press. Agar, M. (1996) Language Shock: Understanding the Culture of Conversation. New York: Quill. Aljaafreh, A. and Lantolf, J.P. (1994) Negative feedback as regulation and second language learning in the zone of proximal development. The Modern Language Journal 78 (4), 465–483. Anthony, L. (2011) AntConc 3.2.4w. [computer software]. Baffy, M. (2017) Shifting frames to construct a legal English class. Journal of English for Academic Purposes 25, 58–70. Bain Butler, D. (2015) Developing International EFL/ESL Scholarly Writers. Berlin: DeGruyter Mouton. Beaufort, A. (2007) College Writing and Beyond: A New Framework for University Writing Instruction. Logan, UT: Utah State University Press. Bhatia, V.K. (2002) LSP and professional practice: Negotiating disciplinary conflicts. In M. Gotti, D. Heller and M. Dossena (eds) Conflict and Negotiation in Specialized Texts: Selected Papers of the 2nd CERLIS Conference (pp. 41–57). Bern: Peter Lang. Biland, É. and Israël, L. (2011) A l’école du droit: les apports de la méthode ethnographique à l’analyse de la formation juridique. [At the law school: The contributions of the ethnographic method to the analysis of legal training]. Cahiers de Droit 52, 619–658. Blommaert, J. (2005) Discourse. Cambridge: Cambridge University Press. Brennan, M. and Van Naerssen, M. (1989) Language and content in ESP. English Language Teaching Journal 43 (3), 196–205. Brinton, D.M., Snow, M.A. and Wesche, M.B. (1989) Content-Based Second Language Instruction. New York: Newbury House Publishers. Bruce, N. (2002) Dovetailing language and content: Teaching balanced argument in legal problem answer writing. English for Specific Purposes 21, 321–345. Candlin, C.N., Bhatia, V.K., Jensen, C.H. and Langton, N. (2002) Developing legal writing materials for English second language learners: Problems and perspectives. English for Specific Purposes 21, 299–320. Cappalli, R.B. (1997) The American Common Law Method. Irvington-on-Hudson, NY: Transnational Publishers.

182

References

183

Cheng, A. (2008) Analyzing genre exemplars in preparation for writing: The case of an L2 graduate student in the ESP genre-based instructional framework of academic literacy. Applied Linguistics 29 (1), 50–71. Cheng, A. (2011) ESP classroom research: Basic considerations and future research questions. In D. Belcher, A.M. Johns and B. Paltridge (eds) New Directions in English for Specific Purposes (pp. 44–72). Ann Arbor: University of Michigan Press. Coulson, S. and Oakley, T. (2005) Blending and coded meaning: Literal and figurative meaning in cognitive semantics. Journal of Pragmatics 37, 1510–1536. Cummins, J. (2008) Teaching for transfer: Challenging the two solitudes assumption in bilingual education. In J. Cummins and N.H. Hornberger (eds) Encyclopedia of Language and Education (pp. 65–75). New York: Springer. De Knop, S., Boers, F. and De Rycker, A. (eds) (2010) Fostering Language Teaching Efficiency Through Cognitive Linguistics. Berlin: De Gruyter Mouton. Deignan, A., Littlemore, J. and Semino, E. (2013) Figurative Language, Genre, and Register. Cambridge: Cambridge University Press. Dressen-Hammouda, D. (2008) From novice to disciplinary expert: Disciplinary identity and genre mastery. English for Specific Purposes 27, 233–252. Dudley-Evans, T. and St. John, M.J. (1998) Developments in English for Specific Purposes: A Multi-Disciplinary Approach. Cambridge: Cambridge University Press. Duff, P.A. (2010) Language socialization into academic discourse communities. Annual Review of Applied Linguistics 30, 169–192. Duff, P.A. (2011) Second language socialization. In A. Duranti, E. Ochs and B.B. Schiefflin (eds) The Handbook of Language Socialization (pp. 564–586). Malden, MA: Wiley-Blackwell. Fauconnier, G. (1994) Mental Spaces: Aspects of Meaning Construction in Natural Language. Cambridge: Cambridge University Press. Fauconnier, G. and Turner, M. (2002) The Way We Think: Conceptual Blending and the Mind’s Hidden Complexities. New York: Basic Books. Felsenburg, M.E. and Graham, L.P. (2010) Beginning legal writers in their own words: Why the first weeks of legal writing are so tough and what we can do about it. The Journal of the Legal Writing Institute 16, 223–311. Ferreira, M.M. (2005) A concept-based approach to writing instruction: From the abstract concept to the concrete performance. PhD thesis, The Pennsylvania State University. Ferreira, M.M. and Lantolf, J.P. (2008) A concept-based approach to teaching writing through genre analysis. In J.P. Lantolf and M.E. Poehner (eds) Sociocultural Theory and the Teaching of Second Languages (pp. 285–320). London: Equinox. Firth, A. and Wagner, J. (2007) Second/foreign language learning as a social accomplishment: Elaborations on a reconceptualized SLA. The Modern Language Journal 91, (Focus Issue), 800–819. Fortanet-Gómez, I. and Räisänen, C.A. (eds) (2008) ESP in Higher European Education: Integrating Language and Content. Amsterdam: John Benjamins. Frawley, W. and Lantolf, J.P. (1985) Second language discourse: A Vygotskyan perspective. Applied Linguistics 6 (1), 19–44. Gentil, G. (2011) A biliteracy agenda for genre research. Journal of Second Language Writing 20, 6–23. Gillette, B. (1994) The role of learner goals in L2 success. In J.P. Lantolf and G. Appel (eds) Vygotskian Approaches To Second Language Research (pp. 195–213). Norwood, NJ: Ablex. Goodwin, C. (1994) Professional vision. American Anthropologist 96 (3), 606–633. Hartig, A.J. (2013) Learning how to mean in the law: A longitudinal, microgenetic analysis of L2 legal writing development. Paper presented at the annual meeting of the American Association for Applied Linguistics, Dallas, TX.

184 Connec t ing Language and Disciplinar y Knowledge in English for Specif ic Purposes

Hartig, A.J. (2016) Conceptual blending in legal writing: Linking definitions to facts. English for Specific Purposes 42, 66–75. Hartig, A.J. and Lu, X. (2014) Plain English and legal writing: Comparing expert and novice writers. English for Specific Purposes 33, 87–96. Hasan, A. (1986) Analogical Reasoning in Islamic Jurisprudence: A Study of the Juridical Principle of Qiyas. Islamabad, Pakistan: Islamic Research Institute. Herazo Rivera, J.D. (2014) Second language (L2) development as concept-mediated textual activity: Exploring the role of functional language concepts in classroom L2 communication and learning. PhD thesis, University of Pittsburgh. Hofstede, G. (1980) Culture’s Consequences: International Differences in Work-Related Values. Beverly Hills, CA: Sage. Hong, Y.-y., Morris, M.W., Chiu, C.-y. and Benet-Martínez, V. (2000) Multicultural minds: A dynamic constructivist approach to culture and cognition. American Psychologist 55 (7), 709–720. Howe, P. (1990) The problem of the problem question in English for academic legal purposes. English for Specific Purposes 9 (3), 215–236. Howe, P. (1993) Planning a pre-sessional course in English for academic legal purposes. In G.M. Blue (ed.) Language, Learning and Success: Studying Through English (pp. 148–157). London: Macmillan. Hutchinson, T. and Waters, A. (1987) English for Specific Purposes: A Learning-Centred Approach. Cambridge: Cambridge University Press. Hyland, K. (2002) Specificity revisited: How far should we go now? English for Specific Purposes 21, 385–395. Hyland, K. (2011) Disciplinary specificity: Discourse, context, and ESP. In D. Belcher, A.M. Johns and B. Paltridge (eds) New Directions in English for Specific Purposes Research (pp. 6–24). Ann Arbor: The University of Michigan Press. Institute of International Education (2016) International Students by Field of Study, 2014/2015– 2015/16. Open Doors Report on International Educational Exchange. See http://www.iie.org/Research-and-Publications/Open-Doors/Data/International-Stu dents/Fields-of-Study/2014-16 (accessed 30 January 2017). Johns, A.M. (2013) The history of English for specific purposes research. In B. Paltridge and S. Starfield (eds) The Handbook of English for Specific Purposes (pp. 5–30). Chichester, West Sussex: Wiley-Blackwell. Johnson, N.H. (2008) Genre as concept in second language academic writing pedagogy. PhD thesis, The University of Arizona. Jolliffe, D.A. (1995) Discourse, interdiscursivity, and composition instruction. In J. Petraglia (ed.) Reconceiving Writing, Rethinking Writing Instruction (pp. 197–216). Mahwah, NJ: Lawrence Erlbaum. Kamler, B. and Maclean, R. (1996) ‘You can’t just go to court and move your body’: Firstyear students learn to write and speak the law. Law, Text, Culture 3, 176–209. Kinginger, C. (2008) Language Learning in Study Abroad: Case Studies of Americans in France. The Modern Language Journal Monograph Series, 92. Lantolf, J.P. and Pavlenko, A. (2001) (S)econd (L)anguage (A)ctivity theory: Understanding second language learners as people. In M.P. Breen (ed.) Learner Contributions to Language Learning: New Directions in Research (pp. 141–158). Harlow: Pearson. Lantolf, J.P. and Poehner, M.E. (2014) Sociocultural Theory and the Pedagogical Imperative in L2 Education: Vygotskian Praxis and the Research/Practice Divide. New York: Routledge. Lantolf, J.P. and Thorne, S.L. (2006) Sociocultural Theory and the Genesis of Second Language Development. Oxford: Oxford University Press. Lea, M.R. and Street, B.V. (1998) Student writing in higher education: An academic literacies approach. Studies in Higher Education 23 (2), 157–172.

References

185

Lee, D.S., Hall, C. and Barone, S.M. (2007) American Legal English: Using Language in Legal Contexts. Ann Arbor: The University of Michigan Press. Lewinbuk, K.P. (2008) Can successful lawyers think in different languages?: Incorporating critical strategies that support learning lawyering skills for the practice of law in a global environment. Richmond Journal of Global Law and Business 7, 1–13. Littlemore, J. (2009) Applying Cognitive Linguistics to Second Language Learning and Teaching. Basingstoke, Hampshire: Palgrave Macmillan. Lortie, D. (1975) Schoolteacher: A Sociological Study. Chicago: University of Chicago Press. Lundeberg, M.A. (1985) Studying understanding in legal case analysis. PhD thesis, University of Minnesota. Lundeberg, M.A. (1987) Metacognitive aspects of reading comprehension: Studying understanding in legal case analysis. Reading Research Quarterly 22 (4), 407–432. Lyster, R. (2007) Learning and Teaching Languages Through Content: A Counterbalanced Approach. Amsterdam: John Benjamins. Maclean, R. (2010) First-year law students’ construction of professional identity through writing. Discourse Studies 12 (2), 177–194. Mertz, E. (2000) Teaching lawyers the language of law: Legal and anthropological translations. John Marshall Law Review 34, 91–117. Mertz, E. (2007) The Language of Law School: Learning to ‘Think Like a Lawyer’. New York: Oxford University Press. Meyer, J.H.F. and Land, R. (eds) (2006) Overcoming Barriers to Student Understanding: Threshold Concepts and Troublesome Knowledge. London: Routledge. Mitchell, J.B. (1989) Current theories on expert and novice thinking: A full faculty considers the implications for legal education. Journal of Legal Education 39 (2), 275–297. Negueruela, E. (2003) A sociocultural approach to teaching and researching second languages: Systemic-theoretical instruction and second language development. PhD thesis, The Pennsylvania State University. Nisbett, R.E. (2003) The Geography of Thought: How Asians and Westerners Think Differently … and Why. New York: The Free Press. Northcott, J. (2008) Language education for law professionals. In J. Gibbons and M.T. Turell (eds) Dimensions of Forensic Linguistics (pp. 27–46). Amsterdam: John Benjamins. Poehner, M.E. (2008) Dynamic Assessment: A Vygotskian Approach to Understanding and Promoting Second Language Development. Berlin: Springer Publishing. Rideout, J.C. (2009) Voice, self, and persona in legal writing. Journal of the Legal Writing Institute 15, 67–107. Rideout, J.C. and Ramsfield, J.J. (2010) Legal writing: The view from within. Mercer Law Review 61, 705–745. Silver, C. (2013) Holding onto ‘too many lawyers’: Bringing international graduate students to the front of the class. Oñati Socio-legal Series 3 (3), 533–560. Spanbauer, J.M. and Lewinbuk, K.P. (2008–2009) Embracing diversity through a multicultural approach. Charlotte Law Review 1, 223–251. Swain, M. (2001) Integrating language and content teaching through collaborative tasks. The Canadian Modern Language Review 58 (1), 44–63. Swain, M., Lapkin, S., Knouzi, I., Suzuki, W. and Brooks, L. (2009) Languaging: University students learn the grammatical concept of voice in French. Modern Language Journal 93, 5–29. Swales, J.M. and Bhatia, V.K. (1983) An approach to the linguistic study of legal documents. Fachsprache 83 (3), 98–107. Tardy, C. (2011) The history and future of genre in second language writing. Journal of Second Language Writing 20, 1–5. Tardy, C.M. (2009) Building Genre Knowledge. West Lafayette, IN: Parlor Press.

186 Connec t ing Language and Disciplinar y Knowledge in English for Specif ic Purposes

Tessuto, G. (2011) Legal problem question answer genre across jurisdictions and cultures. English for Specific Purposes 30, 298–309. Turow, S. (1977) One L. New York: G. P. Putnam’s Sons. Tyler, A. (2012) Cognitive Linguistics and Second Language Learning: Theoretical Basics and Experimental Evidence. New York: Routledge. Uhrig, K. (2012) Cognitive responses to sociocultural elements in professional graduate programs: Two case studies. TESOL Journal 3 (1), 87–109. van Compernolle, R.A. (2014) Sociocultural Theory and L2 Instructional Pragmatics. Bristol: Multilingual Matters. van Compernolle, R.A. (2015) Interaction and Second Language Development: A Vygotskian Perspective. Amsterdam: John Benjamins. van Lier, L. (2005) Case study. In E. Hinkel (ed.) Handbook of Research in Second Language Teaching and Learning (pp. 195–208). Mahwah: L. Erlbaum Associates. Vygotsky, L.S. (1978) Mind in Society: The Development of Higher Psychological Processes. Cambridge, Massachusetts: Harvard University Press. Vygotsky, L.S. (1997) The Collected Works of L. S. Vygotsky: Volume 4. New York: Plenum Press. Weinstein, I. (1998) Lawyering in the state of nature: Instinct and automaticity in legal problem solving. Vermont Law Review 23, 1–57. Wellford Slocum, R. (2011) Legal Reasoning, Writing, and Other Lawyering Skills. Newark, NJ: LexisNexis. Wertsch, J.V. (1985) Vygotsky and the Social Formation of Mind. Cambridge, MA: Harvard University Press. Wingate, U. (2015) Academic Literacy and Student Diversity: The Case for Inclusive Practice. Bristol: Multilingual Matters. Wydick, R. (2005) Plain English for Lawyers. Durham, NC: Carolina Academic Press. Zhang, X. and Lantolf, J.P. (2015) Natural or artificial: Is the route of L2 development teachable? Language Learning 65 (1), 152–180.

Index Note: f refers to figures.

ABA (American Bar Association) 21 academic literacy 6, 176–177 ACPA see Anticybersquatting Consumer Protection Act activity theory 38 Alima: discourse proficiency vs. ‘professional vision’ 8, 125–161 coding information into legal categories 127, 128–129, 138, 149–152 developmental trajectory and mediating factors 156–161 discourse competence and professional vision 154–156 highlighting relevant details 127, 129–132, 138–145, 152–154 legal influences on linguistic understanding 170 linguistic influences on legal understanding 168–169 memorandum genre 132–138, 145–149 other influencing factors 171 professional, academic, language learning background 126–127 professional vision and legal writing 127–128 scaffolding and transfer 145–154 task orientation and disciplinary literacy 168 uncertainty and coping strategies 135–145 American Bar Association (ABA) 21 American exceptionalism 6 American Legal English 22 Anticybersquatting Consumer Protection Act (ACPA: 1999) 59, 61, 63, 74, 149–150

Bader: common law argument and genre 8, 94–124 common law analysis 95–97 developmental trajectory and mediating factors 122–124 genre conventions 105–111 legal influences on linguistic understanding 170 linguistic influences on legal understanding 169 mediating role of affect 100–104 mediation needed 172, 173 other influencing factors 171, 172 professional, academic, language learning background 94–95 reading focus and precision in writing 97–100 rule statements and common law rule 111–122 task orientation and disciplinary literacy 167 Beaufort, A. 2 Bhatia, V.K. 18, 22, 180 Biland, É. 13 biliteracy 174 binding 46 Blommaert, J. 165 Candlin, C.N. et al. 22 Cappalli, R.B. 19, 27 carrier content 3 case illustration/explanation see rule explanation (RE) case law 19 case studies 4 context 50–51 data analysis 39–41 data sources and participants 38–39 methodology 37–38

187

188 Connec t ing Language and Disciplinar y Knowledge in English for Specif ic Purposes

case studies (Continued) see also Alima; Bader; case studies: implications for research and teaching; Hong; Weixin case studies: implications for research and teaching 165–179, 181 considerations for faculty in the disciplines 177–179 disciplinary literacy across languages and cultures 174 ESP and academic literacy 176–177 ESP practitioner development 174–176 language and disciplinary knowledge 168–170 other influencing factors 171–172 same words, different trajectories 172–173 task orientation and disciplinary literacy 166–168 CBI see concept-based instruction Cheng, A. 6–7, 37 civil code 19 civil law 19, 42, 43–48 see also Hong coding 127 see also Alima cognitive linguistics 27 common core 23, 25 common law 19–20 see also Bader; Hong; Weixin concept-based instruction (CBI) 3, 25–36 classroom instruction 31–35, 32f, 34f concepts 25, 26–29 developmental instruction 25 disciplinary specificity 29–30 discourse-structuring vs. discourse-relevant concepts 30–31 individual meetings 35 law faculty vs. language specialists 35–36 legal target concept: stare decisis 26–27 linguistic target concept: mental spaces and blending 27–29 systematic theoretical instruction 25 concepts 1, 3–4 civil law concepts 43–48 discourse-relevant concepts 1, 30–31, 91–92 discourse-structuring concepts 1–2, 3, 30–31, 54–57 legal concepts 3, 22, 23 linguistic concepts 23 see also concept-based instruction

conceptual blending 27–29 content 3 Coulson, S. 28 cross-cultural legal instruction 4–5 cultural specificity in legal argumentation 18–20 De Tocqueville, A. 6 disciplinary epistemology 2–3 disciplinary knowledge 2–3, 6, 168–170 disciplinary literacy 6, 165, 166–168, 174 disciplinary specificity 29–30 discourse: defined 165 discourse proficiency see Alima discourse-relevant concepts 1, 30–31, 91–92 discourse-structuring concepts 1–2, 3, 30–31, 54–57 Dressen-Hammouda, D. 3 Dudley-Evans, T. 3 Duff, P.A. 3, 7, 161 Émilie 145 enculturation 7 English for Legal Purposes (ELP) 3, 21, 22 English for Specific Purposes (ESP) 21 and academic literacy 176–177 learning-centred approach 6–7 research on teaching and learning 6–7 ESP for law: language/disciplinary knowledge tensions 21–22 ESP practitioner development 174–176 faculty in the disciplines 177–179 falsity Alima 138–140, 141–142, 143, 146–148 Bader 114–115, 116–117 Hong 48–52, 53, 55–57, 58, 59 Fauconnier, G. 27, 28, 33 Felsenburg, M.E. 17 Ferreira, M.M. 25, 26 Firth, A. 38 Frawley, W. 61 genre 7 civil law concepts and common law genres 43–48 materialized genres 3 symbolic genres 3 as a template 83–84 see also Bader; Hong Gillette, B. 181

Inde x

189

Goodwin, C. 125, 127 Graham, L.P. 17 grand theft 28–29 Alima 128 Bader 97–98, 105–106 Hong 44, 47, 48 Weixin 68–69, 80, 88, 89–90, 91, 92

Johns, A.M. 6 Johnson, N.H. 26 Jolliffe, D.A. 2 judicial decisions 19

Hartig, A.J. 27, 29 headnotes 50 Herazo Rivera, J.D. 26 highlighting 127 see also Alima Hofstede, G. 5 Hong: legal concepts mediating language use 8, 42–64 case reading and secondary sources 48–52 civil law concepts and common law genres 43–48 developmental trajectory and mediating factors 61–64 legal concepts and genre structures 57–61, 109 legal influences on linguistic understanding 169–170 linguistic influences on legal understanding 169 mediation needed 172–173 other influencing factors 171–172 precedent as discourse-structuring concept 54–57 professional, academic, language learning background 42–43 from statutes to rationale 52–54 task orientation and disciplinary literacy 166 Hong, Y.-y. et al. 5 Howe, P. 3, 17, 31, 176, 178 Hutchinson, T. 6–7 Hyland, K. 23, 26, 27, 176

L1 use 4, 66–67 L2 legal literacy and international LL.M. students 20–21 Land, R. 27 Lantolf, J.P. 25, 26, 27, 33, 37–38, 61, 83 Larsen v. Philadelphia Newspapers (1988) Alima 139–141, 143 Bader 105, 114, 115, 117 Hong 49–51, 52–53, 57, 173 Weixin 73, 74, 90 Lea, M.R. 2 learning-centred approach to ESP 6–7 Lee, D.S. et al. 22 Lee, S.-H. 67 legal concepts 3, 22, 23 see also Hong legal culture 18–20, 22 legal influences on linguistic understanding 169–170 legal language 22–23 legal literacy in L1 11–12 legal reading 16–17 legal reasoning 13–16 legal writing 17–18 new textual communities 12–13 legal memoranda 19–20, 132–138, 145–149 legal reading 16–17 legal reasoning 13–16 legal writing 17–18, 127–128 Lewinbuk, K.P. 4–6 lexicogrammatical awareness 85–86 Li, M. 67 linguistic concepts 23 linguistic influences on legal understanding 168–169 Lundeberg, M.A. 16 Luria, A. R. 37

imitation 83 immersion 5 In re George B 96 L’institut d’etudes politiques de Paris (‘Sciences Po’) 13 international LL.M. students and L2 legal literacy 20–21 IRAC (Issue–Rule–Application– Conclusion) 19, 33 Israël, L. 13

Kaewta 116–117 Kinginger, C. 38

Maclean, R. 18 Maqsood 101–104 material representations 127 materialized genres 3

190 Connec t ing Language and Disciplinar y Knowledge in English for Specif ic Purposes

Mayflower v. Prince (2004) Alima 153, 156 Bader 105, 121–122 Hong 61 Weixin 74, 75, 76–77, 78, 83–84, 90–91 McElroy Alima 132 Bader 96, 103, 106 mediation 66–67, 100–104, 172–173 memorandum genre 19–20, 132–138, 145–149 Mertz, E. 12–13 Meyer, J.H.F. 27, 62 mimicry 83 misconceptions 4–6 Mitchell, J.B. 15–16, 91, 92 Neish v. Beaver Newspapers, Inc. (1990) 49 Nisbett, R.E. 5 Oakley, T. 28 Open Doors Report on International Educational Exchange 21 Pavlenko, A. 38 People v. Fitzgerald 79–80 People v. Huggins (1997) 28, 29 Alima 128, 130–132, 134–135, 137, 145 Bader 98–100, 105 Hong 44 Weixin 69, 79, 89–90 People v. Williams (1992) 29 Alima 128–129, 132–134, 137, 145 Bader 96, 97, 105–107, 112–114, 129–130 Hong 44, 45, 46, 51 Weixin 66–67, 68–69, 79, 88–89, 90, 91 Plain English 36 Poehner, M.E. 27, 33, 83 precedent 19, 27, 30, 62 and language 54–57 see also Hong; Weixin processed rule 19, 43, 44, 47, 49 professional vision 127 see also Alima rationale 44, 45–46 real content 3 The Restatement (Second) of Torts 51–52, 114, 115–116, 141, 173 rule application (RA) 39, 68 see also Weixin

rule explanation (RE) 39 see also Bader; Hong; Weixin rule statements 28–30 see also Alima; Bader; Hong Rush v. Philadelphia Newspapers (1999) 48–49, 51 Santillo v. Reedel (1993) Alima 143–146, 149 Bader 105, 108–109, 114, 115, 117, 173 Hong 54, 55, 56–57, 58 Weixin 73, 82, 90 scaffolding 7 second language acquisition (SLA) 4–5 Shields v. Zuccarini (2001) Alima 150, 152–153, 156 Bader 105, 118, 119, 121, 122 Hong 61 Weixin 74–75, 78, 90 Silver, C. 21, 179 smysl 62 sociocultural theory 25 Spanbauer, J.M. 4–6 St. John, M.J. 3 stare decisis 19, 26–27, 46, 67 Street, B.V. 2 subject matter knowledge 2 Swales, J.M. 18, 180 symbolic genres 3 Systemic Functional Linguistics 26 Tardy, C.M. 2, 6, 7 task orientation and disciplinary literacy 166–168 Teodora 70–73, 135–138 Tessuto, G. 178 Thorne, S.L. 25, 37–38, 83 Al Thowaini, B. M. 104 threshold concepts 27, 62 tort law 91 see also The Restatement (Second) of Torts transcription conventions xi translation 63 Turner, M. 27 Turow, S. 11–12 Tyler, A. 33 Umar 76–77, 90–91 van Compernolle, R.A. 25, 40 van Lier, L. 38 Vygotsky, L.S. 7, 37–38, 39, 40, 62

Inde x

Wagner, J. 38 Waters, A. 6–7 Weinstein, I. 13–15, 91–92 Weixin: precedent and language 8, 65–93 abstract vs specific 77–78 advocacy vs objectivity 76–77 audience, purpose and task 75–82 client vs precedent 79 common law rule 67–75 developmental trajectory and mediating factors 92–93 discourse-relevant concepts 91–92 genre as a template 83–84 L1 mediating L2 understanding 66–67 legal influences on linguistic understanding 170 lexicogrammatical awareness and orientation to forms 85–88 linguistic influences on legal understanding 168, 169

191

other influencing factors 171 professional, academic, language learning background 66 reading comprehension 88–91 task orientation and disciplinary literacy 166–167 Wellford Slocum, R. 19, 68, 120, 128 Wertsch, J.V. 62 Wingate, U. 6 Wojcik, M. 179 Wydick, R. 36 Yong-Ik 57–58 Yoshiro 47, 48 Yue 145 Zixin 67, 72, 76, 88–89 znachenie 62 zone of proximal development (ZPD) 62