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