Academic journal article Law & Society Review

Voice and Context in Simulated Everyday Legal Discourse: The Influence of Sex Differences and Social Ties

Academic journal article Law & Society Review

Voice and Context in Simulated Everyday Legal Discourse: The Influence of Sex Differences and Social Ties

Article excerpt

Everyday legal discourse refers to the spoken language with which ordinary people constitute the law-in-action. In this article, we experimentally investigate the social distribution of rule- and relationally-oriented discourse found by ethnographers in small-claims court settings. We examine the influences of sex differences and social ties between disputants on these types of discourse in a mock small-claims setting using a quantitative content coding scheme. We do not find empirical support for sex differences in the production of simulated everyday legal discourse. The relational context of a dispute (operationalized as the strength of social ties between disputants) has significant effects on the distribution of rule- and relationally-oriented discourse, so that disputants in relationally-close contexts produce more relationally-oriented discourse and those in relationally-distant contexts produce more rule-oriented discourses than those in relationally-close contexts. With these findings as a backdrop, we discuss (1) the contextual nature of sex differences in everyday legal discourse; (2) discourse "switching" and emotional investment in personal relationships, and (3) applications for our coding scheme to studies of disputing frames.

Among the most important developments in sociolegal research is the study of everyday legal discourse used by lay people, for it is through such discourse that law in its many forms often is constituted and enacted. In courtrooms, lay people's everyday legal discourse, in contrast to formal legal discourse, refers to the common voice and argot of the law-in-action: how neighbors, for example, argue their cases in front of a small-claims court judge or how a motorist pleads his case in front of a traffic magistrate. Ethnographers of the lower courts, in particular, often portray the everyday linguistic framing of "legal" disputes in two conceptually distinct but. empirically overlapping ways: (1) via a ruleoriented discourse that frames problems around legal categories and concerns, and (2) via a relationally-oriented discourse that frames problems around appeals to affiliation, relational consequences, and personal needs (Conley & O'Barr 1990, 1998; Merry 1990; cf. O'Barr & Conley 1985; Yngvesson 1993).1 Such discourses are important because they can affect the processing and outcomes of cases, particularly in small-claims courts where lay testimony is typically a featured (or sole) source of evidence (Conley & O'Barr 1988). Relationally-oriented discourse generally appears less successful than rule-oriented discourse for achieving disputants' goals and can be treated as "totally irrelevant" by judges (Conley & O'Barr 1990:81).2

At question are the reasons why lay people use particular discourses in court and how such discourses can be effectively analyzed. We conceptualize these questions in relation to the social distribution of everyday legal discourse (e.g., Conley & O'Barr 1990:78). This approach thus facilitates the study of both the "hard" and "soft" determinisms of language-in-use; specifically, how various kinds of social categories determine everyday legal discourse, as well as how lay people use everyday legal discourse to create and express the social contexts of their disputes (Ewick & Silbey 1998; Mertz 1992).3 Sociolegal scholars have argued that two aspects of the social distribution of everyday legal discourse-"sex and gender differences" and "relational contexts" (e.g., the types of social ties that exist between adversaries)powerfully influence the discourse lay people use in their legal disputes.4 Observational and interview-based studies, however, offer inconsistent evidence of such influences. Jacob (1992:578), for instance, did not find sex differences for everyday legal discourse in his study of custody and child-support cases. Merry (1990:121) observed that men and women shifted easily from rule- to relationally-oriented discourse in their disputes. …

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