Vol. 9 No. 10 (October 1999) pp. 420-423.
JUST WORDS: LAW, LANGUAGE AND POWER by John M. Conley and
William M. O'Barr. Chicago: University of Chicago Press,
1998 168 pp. $35.00 Cloth. ISBN 0-226-11486-4. $ 13.00
Paper.
Reviewed by Patricia Ewick, Department of Sociology, Clark
University.
JUST WORDS: LAW, LANGUAGE, AND POWER, by Conley and
O'Barr, is a self-conscious exercise in translation.
Troubled by both the impenetrability of most socio-
linguistic research and its inattentiveness to matters
beyond the logic and organization of discourse itself,
Conley and O'Barr have written a book that maps the
connection between what they call microdiscourse (or, talk)
in legal settings and structural and cultural patterns of
inequality. They do this in a language that is transparent
and teacherly. Indeed, the entire organization of the book
is intended (or so it would appear) to introduce to a
relatively uninformed audience the basic conceptual and
analytic tools of socio-linguistic research and its
usefulness for understanding the persistence of inequality
in the law.
According to the authors, the goals of socio-legal research
is to document and explain law's failure to "live up to its
promises," especially the promise of equal treatment before
the law. Despite formal constitutional and legislative
promises of equality and myriad reforms to ensure its
realization, inequality persists in the U. S. In
attempting to explain that persistence, Conley and O'Barr
begin by noting that the "[l]anguage is the medium through
which law does most of its work,"(2) and "[l]anguage is
the essential mechanism through which law's power is
realized, reproduced and occasionally challenged and
subverted (129)." Thus, the author's conclude, it is
through language, particularly the microdiscourse of talk,
that inequality is likewise produced.
The remaining chapters demonstrate exactly how legal
discourse produces the particular inequalities associated
with gender in a variety of legal settings. The first
substantive chapter examines the revictimization of rape
victims. Employing the line of argument set out earlier,
the authors note that despite rape-shield laws that
presumably protect victims from intrusive cross-examination
regarding their previous sexual history, rape victims are
still revictimized during trials. Relying almost
exclusively on Gregory Matoesian's REPRODUCING RAPE (1993),
Conley and O'Barr outline the microlinguistic strategies
employed by defense counsel during cross-examination. The
credibility of rape victims is subtly but demonstratively
undermined through the use of silence, tag questions ("You
drove the car into the parking lot, didn't you"(p.24)) that
require simple "yes-no" answers, topic management, covert
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evaluative comments and the assertion of epistemological
filters (questioning how or if the witness-victim could
have known some fact).
Conley and O'Barr end this chapter by considering
whether these practices are simply generic cross-
examination strategies, or if they are unique to rape
trials. Their answer to this question is that while they
may be common practice, their use is particularly poignant
in the context of a rape trial where "a woman telling a
story of physical domination by one man is subjected to
linguistic domination by another (p. 32)."
The following two chapters pursue this analysis of gender inequality as it is produced in language and talk.
Chapter three looks at mediation practices and how the
moral force of claims of harm is leached out during the
process. Again highlighting a single researcher, in this
case Angela Garcia (1991, 1995), Conley and O'Barr discuss
how mediators use particular conversational strategies to
prevent competitiveness and argument. These strategies
often result in a kind of spurious neutrality. Although it
is not clear that these practices are systematically used
to the detriment of women (the authors note that the
evidence is ambiguous), the chapter serves to demonstrate
that ostensibly even-handed procedures can bias the
outcome.
Chapter four ("Speaking of Patriarchy") focuses on
stylistic variation in courtroom talk. Drawing upon their
previous research (1990), Conley and O'Barr identify two
dominant types of accounts given by claimants in court.
Rule oriented accounts appeal to legal rules, invoke legal
rights, are constructed in a sequential, linear way, and
end by identifying a human agent. Relational accounts, by
contrast, tend to meander, invoke a great deal of context,
and assume that the audience to the account shares
background information. The ability to craft a rule-
oriented account tends to be associated with certain types
of experiences, such as training in law or business
practices. Given a segregated labor market, this fact
means that men are more likely to produce rule-oriented
accounts. Not surprisingly, the authors observed that rule
oriented accounts tend to fare better in courtrooms.
The next chapter abandons the analysis of gender, or
inequality for that matter, and takes up the task of
producing an elaborated version of Felstiner, Abel and
Sarat's "naming, blaming and claiming" model of disputes
(Felstiner, Abel and Sarat, 1980). Drawing upon the work
of Pomeranz (1978) and Jefferson (1988), this chapter
examines the microlinguistic features of trouble talk in
everyday life as a way to reveal the process by which
problems get named and agents get blamed. The gist of this
analysis is that the process of naming and blaming tends to
be collaborative and unfolding in the course of daily
conversations. Recipients of the tale of trouble
participate in the process by asking for more detail,
greater elaboration, attributions of blame, or even offer
their own version of the story. Conley and O'Barr go on to
show how accounts are further transformed in the more
formal settings where claiming occurs: small claims court
and divorce lawyers' offices. This chapter is interesting
and useful, but seems out of
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place in this work insofar as it does not take up the matter
of inequality in the context of this disputing paradigm.
The final two substantive chapters of the book pick up
the issue of gender inequality, but only tangentially.
They are really appeals to incorporate rigorous socio-
linguistic research into legal anthropology and historical
legal research.
I think JUST WORDS succeeds masterfully in achieving
what its authors set out to do. It makes a compelling
argument for recognizing (and studying) the role of talk in
enacting and reproducing power and inequality in a variety
of mundane legal settings. Through descriptions of well-
designed and executed research the reader is able to
discern the mechanisms through which gender organizes legal
interactions and shapes legal outcomes. This insight is
powerful precisely because these mechanisms operate at a
level that typically escapes our notice. Moreover, the
author's attentiveness to language and its capacity to
empower is realized in their own use of it. The book is
clear and accessible. One suspects that some of these
chapters first appeared as lectures as they bear the
imprint of good pedagogy.
My only criticisms of the book are not unrelated to
its virtues. Not surprisingly, no book can be everything
to everyone. Where this books succeeds in introducing
readers to socio-linguistic research and demonstrating its
relevance to socio-legal research, it falls short of
actually contributing to that body of research or theory.
To provide rich and clear descriptions of interesting and
significant research for purposes of illustration, the
authors had to sacrifice a broad, no less comprehensive,
review of the relevant literature.
Similarly, the author's exclusive focus on gender
inequality is understandable given their desire to write an
accessible (for students that often means relatively short)
book. It is also, of course, totally defensible on all
sorts of intellectual and political grounds. However, I
would have welcomed more attention to other types of
inequality. Since class is so often explained in
structural terms, an analysis of how class differences get
linguistically produced in legal settings would be an
important corrective. Since it is inappropriate to
criticize a book for not being a different book, however, I
will retract that criticism and replace it with another.
Given the focus on gender, this should have been signaled
in the title as a way of alerting those scholars who are
primarily interested in gender, rather than socio-
linguistic studies or law, that there is much to learn in
these pages.
REFERENCES
Conley, John M. and William M. O'Barr. 1990. RULES VERSUS
RELATIONSHIPS. Chicago: University of Chicago Press.
Felstiner, William, Richard Abel, and Austin Sarat. 1980-
81."The Emergence and Transformation of Disputes: Naming,
Blaming, Claiming.". LAW AND SOCIETY REVIEW 15: 631-654.
Garcia, Angela. 1991."Dispute resolution without disputing:
How the Interactional Organization of Mediation
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Hearings Minimizes Argument". AMERICAN SOCIOLOGICAL REVIEW
51: 818-835.
_____. 1995."The Problematics of Representation in
Community Mediation Hearings: Implications for Mediation
Practice." JOURNAL OF SOCIOLOGY AND SOCIAL WELFARE. 22: 23-
46.
Jefferson, Gail. 1985. "On the Interactional Unpackaging of
a 'Gloss'. LANGUAGE AND SOCIETY 14: 435-66.
Matoesian, Gregory M. 1993. REPRODUCING RAPE: DOMINATION
THROUGH TALK IN THE COURTROOM. Chicago: University of
Chicago Press.
Pomerantz, Anita. 1978. "Attributions of Responsibility:
Blamings." SOCIOLOGY 12: 15-21.
Copyright 1999