2016 - Deeb - Some New Legal Realism - Livro

12
The Moment of Possibles: Some New Legal

Realism about a “Reality Thriller” Case
Hadi Nicholas Deeb*
i. introduction
A familiar realist principle holds that legal processes do not just influence social
events or attitudes, but vice versa as well.1 As a “contextualist” (Nourse and Shaffer
2009, 79), “pragmatist” (Suchman and Mertz 2010) contribution to contemporary
New Legal Realism, this chapter employs the linguistic branch of legal anthropology
that has shown that this back-and-forth occurs through what people say (semantics)
and how they say it (pragmatics) during inexact translations across the filter between
law and society (e.g., Conley and O’Barr 2005; Ng 2009). In particular, it builds upon
research that has explicitly extended pragmatist philosopher Charles Peirce’s semio-
tic theory to legal reasoning – especially, but not only, in court.2 This approach
elucidates the realist insight by connecting the micro-linguistic aspects of something
like courtroom interaction to the macro-discursive level of law as an institution.
The specific connection I pinpoint is a moment in legal interaction that harbors
the joint possibility of coordinated argumentation and professional legitimization.
Even the most disputatious participants in legal argumentation must coordinate
some framework to govern what and how they dispute. I argue that the ephemeral
gap between two speakers’ turns is a moment of interpretive possibility as to knowl-
edge about law and a moment of interpersonal (or “intersubjective”) possibility as to
the experience of doing law. That simultaneity makes this moment also a source of
professional legitimization, such as through the potential for persuasion; potential,
because it rests on continually reshaping a shared institutional framework as much
as on convincing interlocutors of a propositional argument.
* I thank Lara Deeb, Elizabeth Mertz, Elinor Ochs, Frances Tung, the National Science Foundation
(Grant No. DGE-0707424), the Wenner-Gren Foundation, and the University of California, Los
Angeles Graduate Division.
1
For a recent restatement of the realist project, see Erlanger, Garth, Larson, Mertz, Nourse, and Wilkins
(2005).
2
In particular, this chapter looks to Kevelson (1990) and Richland (2008). Peirce was a friend of Oliver
Wendell Holmes, Jr., and an influence upon the original legal realists as well, e.g., Kevelson (1987,
70–82).
244Australia (Journals), on 01 Aug 2017 at 08:57:18, subject to the

Downloaded from https://www.cambridge.org/core. Deakin University,
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781107762336.013
Some New Legal Realism about a “Reality Thriller” Case 245
I elaborate by analyzing the summary judgment motion in a copyright infringe-

ment case, Threshold Media Corp. v. Relativity Media, LLC (CV-10–9318-DMG, C.
D. Cal. 2010). The case involved a film, Catfish,3 that caused social controversy over
its “realness” immediately upon its premiere at the 2010 Sundance Film Festival
(Buchanan 2010). Elsewhere, I have described how the legal professionals repro-
duced that controversy, translating realness into copyright’s central criterion of
originality (more precisely, original expression) (Deeb 2016).4 The realness contro-
versy was triggered by Catfish’s saturation with new media characteristics.5 That
thoroughness disrupted generic expectations of documentary versus scripted film,
which reflected a deeper blurring of cultural genres for interpreting mediated
experience in a new media age. The disruption also precluded the legal profes-
sionals from simply applying the originality criterion to the artistic facts in question
according to long-established jurisprudential habits. Instead, the case provided an
opportunity to see how the “artistic value judgments” (Cohen 1990) required of
copyright adjudication always entail not merely the application of a legal lens, but
also its flexible construction through the reproduction of underlying social motiva-
tions and interpretations.
Here, I tie that talk about the case to the other side of the coin: the same talk as the
case, in particular, the courtroom proceeding as part of what constitutes an institu-
tionally recognizable event that denotes legal interpretation and authority. In the
following section, after a brief recap of the film’s plot and what triggered the con-
troversy, I review the social and legal dispute in terms of competing narratives, each of
which intertwines an account of what happened in the film’s plot, what the film-
makers did, and, in court, what the evidence was. Narrative is a function of tempor-
ality, which in turn rests on the mutuality of chronological sequencing and a sense of
living in the present (or “now-ness”). In addition to movie reviews by critics and the
legal briefs on the motion, I examine an excerpt from the court reporter’s official
transcript of the summary judgment hearing, which I also attended in person, in order
to show that the narrative contest exhibits the connection between micro-interaction
and macro-setting illuminated by a linguistic anthropological take on legal realism.
In the subsequent section, I use that close analysis to relate the temporal founda-
tion of the dispute to my claim that courtroom pragmatics harbors a moment of
jointly interpretive and intersubjective possibility. In that moment, the participants,
together, both interpret and also enact the law. Therefore, it is also in this moment
that legal professionals draw on legal frames while simultaneously creating or re-
creating them.
3
Directed by Henry Joost and Ariel Schulman (Rogue/Universal Pictures, 2010).
4
Both that chapter and this one were developed from a broader anthropological research project based
on my ethnographic fieldwork in Hollywood in 2011 and 2012.
5
I define new media as the assimilation of electronic technology and the tools to use it into everyday
practices of cultural production and communication; in other words, technology and practice
together.
Downloaded from https://www.cambridge.org/core. Deakin University, Australia (Journals), on 01 Aug 2017 at 08:57:18, subject to the
246 Deeb
In my conclusion, I propose further that this concurrence of knowing and

experiencing law generates the potential for persuasion. Persuasion is a major goal
of juridical activities. It matters for the outcome of a particular case, for the
appearance of justice, and, therefore, for the relative stability – including destabili-
zation, restabilization, or revolution – of the system. Indeed, my notion of a micro-
linguistic moment of possibility deliberately recalls sociologist Pierre Bourdieu’s
“space of possibles,” wherein the continuity of habitus6 is laid open to struggle over
symbolic and economic capital (prestige and profit) that can both reinforce and alter
the status quo (Bourdieu 1995, 142, 233, 260). Reinforcement, of course, can perpe-
tuate the belief that law does not intermingle with political and social considera-
tions, ironically enhancing legal authority through processes that, in fact, include
such commingling.
ii. “reality thriller”

Catfish – spoiler alert – tells the story of Yaniv (Nev) Schulman, a twenty-something
New Yorker who, along with his brother and a friend (who are also the film’s
directors), habitually record his everyday life with a handheld camera; Schulman
also spends a lot of time online.7 There, he develops a friendship with a Michigan
family consisting of the elegant Angela Pierce, her eight-year-old daughter and
painting prodigy, Abby, and Abby’s half-sister, nineteen-year-old Megan Faccio.
Nev falls in love with Megan and arranges to meet her in person. But he grows
suspicious that Megan is not the one singing on recordings she sent him as her own.
Although Nev balks, his brother and friend convince him to investigate – and stay on
camera. In a suspenseful sequence, they travel to Michigan, only to discover that
Angela – Wesselman, not Pierce – egregiously oversold her glamour and Abby’s
talent, and fabricated Megan entirely. “To catfish” has become a common term for
deceiving people about relationships, especially through social media (see, e.g., the
Urban Dictionary).
Catfish was marketed as a documentary “reality thriller” (see, e.g., IMDB.com).
But some critics immediately suggested it was scripted. Those shorthand categories
indirectly reflect a deeper debate over whether the film is “real or fake,” as more than
one reviewer put it (Hutcheson 2010). Concern for realness betrays anxiety about the
representation and interpretation of culture in an era when new media have
disrupted expectations of how to do those things. While the film’s plot explored
that anxiety through Nev’s investigation of whether Angela’s representations – and
6
Habitus refers to dispositions that form individual thought, inform experience, and guide activity in a
habitual way. Habitus reflects a “dialectic of social structures and structured, structuring dispositions”
that provide a continuity of social practice, which in turn might be disrupted in a space of possibles
(Bourdieu 1990, 41, 52).
7
For a longer synopsis, see Deeb (2015) and Ekberg (2010). In addition, the ABC News program, “20/20,”
aired a segment with a summary and interviews (Berman and Deutsch 2010).
Megan herself – are real, the film as an artistic product also played on that anxiety.
Catfish thoroughly merges a plot about the disruption, techniques that employ the
disruption, and a message that posits the disruption. That amalgam unsettled viewers’
expectations of how authors and audiences connect through a cinematic work, not
least because it was delivered otherwise through a conventional, linear narrative form.
1. Two Narrative Times

The critics explored realness largely as a function of temporality, which is a major (for
some philosophers, the essential) dimension of human experience. As thinking sub-
jects, people come to conceptualize time as passing chronologically. But humans also
live time existentially as a single, yet ever-changing “now” from which the past recedes
to one horizon and the future is anticipated on another (Heidegger 1962, 373–374,
381–382, 407; Husserl 1991, 26–27; Merleau-Ponty 2005, 477–481).
Chronological and unified time lend meaning to each other. One famous meta-
phor is watching the landscape pass by a train window (Merleau-Ponty 2005, 487).
The illusion of elapsing time informs the passenger’s sense of living a journey that
extends on the track behind and ahead, while sitting that journey informs her sense
that time passes. In everyday practice, timing routine acts like greeting an acquain-
tance or thanking a store clerk displays our conditioned attunement to this mutuality
as we strive to achieve (or hinder) personally fulfilling and socially harmonious
outcomes (Bourdieu 1990, 105–107).8
By the same logic, narratives channel this duality by “extracting a configuration
from a succession” (Ricoeur 1984, 66). Changing the sequence changes the ultimate
meaning, while the ultimate meaning makes the sequence an “intelligible whole,”
or a causally significant plot rather than a random list of occurrences (Ricoeur 1981,
167). This engagement with causality is characteristic of almost all kinds of narrative.
In fact, narrative can be defined as the use of language to impose logical order on
troublesome, or expectation-rending, experiences (Bruner 1991, 1–21).
Employing narrative therefore exhibits the metalinguistic “ability to present,
within discourse itself, specific marks that distinguish it from the ‘statement’ of
things narrated” (Ricoeur 1985, 5). Keeping in mind the temporal foundation of
narrative, this distinction is one between the “time of the act of narrating” and the
“time of the things narrated” (5). Each layer of time gains coherence from the
chronological–unified nexus, while the marks that distinguish the layers establish
ground for dialogue between the author and audience about some aspect of the
human condition.
Catfish’s makers (the film’s narrators) repudiate any such marks by claiming that its
plot portrays unvarnished real life by virtue of how they made it. That co-dependence
8
Consider two friends who simultaneously say, “Hi, how are you?” then laugh at their overlap and
fumble to re-ask and answer. In that situation, the chronological hiccup might serve to enhance the
feeling of solidarity between them.
248 Deeb
makes it a reality thriller. The chronological aspects of what happened and what the
film’s narrators did align, as do the unified aspects evidenced by the revelations that
shake Nev and the audience at the same time and ultimately provide catharsis.
Critics divided over this absence, or erasure, of the marks that typically allow
audiences to tell apart the narrated and narrating layers of a film. A reviewer disposed
to accept the claim found that “Catfish actually feels like a natural product of media
sharing culture” (Longworth 2010). Although the filmmakers might have “faked a
life-changing experience in order to make a movie about the blurriness of contem-
porary reality,” she rationalized that “it’s probably counterproductive to worry about
which possibility is closer to the truth, being that Catfish takes the very mutability of
truth as its primary subject.” She effectively sublimated the narrated events into
whatever the filmmakers did in narrating them.
The reviewer projected that temporal fusion to a historical scale. She went on:
In that sense, the film transcends the obvious, easy indictment of the “so close, yet so
distant!” paradox of social networking to explore something much more . . . uh, real.
For all the modern technological mutations that made it possible, at the core of
Catfish is the age-old pain and confusion that comes from suddenly becoming
aware that someone you love isn’t the person they presented themselves to be. It’s
just an all-digital cover version of an old analog tune.
The film’s novelty felt all the more timeless for exemplifying a contemporary
permutation of a long familiar source of disillusionment. Catfish resonated with
her by matching her experience of living in a new media world that is at once
chronologically unique and existentially abiding.
By contrast, one skeptical reviewer perceived Catfish as an unsuccessful attempt,
if not necessarily deliberately deceptive. He averred:
But when you tell a story that’s about false identity and self-delusion and the
shape-shifting magic of the modern media – a story that strongly evokes both
real-life hoaxes and works of fiction – and you do not command the boundaries
of your story with confidence, you can’t be shocked when people think you’re
bullshitting. (O’Hehir 2010)
From this perspective, the filmmakers failed to prevent their representation of a

cultural phenomenon from collapsing in on itself. The story of fakeness in the
narrated account spills over to call into question the veracity of the narrating.
Rather than prove identity between what happened and what the filmmakers did,
uncontrolled conflation undermines both.
This perceived failure occurs through temporal infelicities across those two
narrative layers. To “tell a story . . . about . . . the shape-shifting magic of the modern
media” might work as commentary from the time of narrating upon the time of
narrated events. In that case, the chronologies of the telling and of the plot are not
the same, and so the now-ness or “present time” of viewing is removed from that of
the characters. Because the story “evokes . . . real-life hoaxes,” however, it draws
those two existential times close enough together that only confident command of
the boundaries preserves the distinction. That command requires chronological
interventions from the time of narrating that mark separation from the action being
narrated, which the reviewer found lacking.
While his words like “hoax,” “boundary,” and “bullshit” emphasize the existen-
tial, unified aspect of temporal experience, another skeptic homed in on the film’s
chronology. In an online posting, the self-described documentary filmmaker did
write of his existential unease while watching the film, reporting that:
Throughout the entire film it all felt fake to me, but after the movie was over and talking
with my other film critic friends they were all baffled how I could think it was fake. That
got me to thinking . . . “maybe it is real?!” but then logic sat [sic] in and I realized that all
of this is based on the internet, so I will just do the research myself. (Hutcheson 2010)
That research turned up suspicious chronological divergences. He argued that Nev’s

and Megan’s online chat transcripts about “her” songs are technically impossible to
have occurred as they appeared in the movie. He expressed further disbelief that the
filmmakers managed to capture every significant plot development on camera,
especially while holding down other jobs. This apparent disjuncture confirmed
his initial feeling that the film is not real.
Henry Joost, one of Catfish’s directors, recognized this challenge in a print inter-
view, asserting, “None of the scenes were staged. People are responding to how the
story is so streamlined like a narrative film” (Kohn 2010). Narrative film in this sentence
can be understood to mean scripted fiction (“staged”). To be streamlined like fiction is
to have a more or less continuous dramatic arc. Real life is not streamlined, especially
as captured on film – except now, under new media conditions, when a confluence of
everyday habits and fortuitous life events may afford a streamlined depiction.
Joost’s reference to narrative film therefore also distinguishes Catfish from tradi-
tional documentary. He was arguing that new media make it possible, and normal,
to present a real-life narrative in a way that blends and repurposes the conventions of
documentary and fiction in a new, and a more real, way. Catfish is in some respects a
conventional film, but it also exemplifies a cultural shift – to what the media scholar,
Henry Jenkins (2006, 2), calls a “participatory culture” – by portraying its makers as
members of the audience-turned-author who turn cameras on themselves as an
ordinary practice of everyday life. They thrive on new media technologies that make
it possible to create, manipulate, and circulate information more quickly, cheaply,
and widely than ever before (Manovich 2001). Older narrative conventions give way,
if only partially, to a “cyberculture” of “collage,” or “ubiquitous . . . appropriation
and remediation” (Ricardo 2009, 3) – also known as remix.9 Thus, at a broad
9
“Remix” refers to the repurposing or reuse of an existing expression in a new context. The term has
been adapted from the music industry to apply almost everywhere. It has been used to support the case
for copyright law reform. See, e.g., Lessig (2008).
250 Deeb
aesthetic and cultural level, Catfish’s makers blended old and new to remix the
traditional temporality of film and how author and audience dialogue through it.
2. Realness Translated into Originality

The controversy replayed in the legal sphere when the record company that holds
the copyright to “All Downhill from Here,” one of the songs sent to Nev by Angela
(as Megan), sued the film’s directors, producers, and distributors for copyright
infringement. U.S. copyright law protects “original works of authorship fixed in
any tangible medium of expression” (17 U.S.C. §102). The federal statute does not
define original, work, or authorship. The U.S. Supreme Court has specified that
originality is the “sine qua non” of copyright and means “independently created” –
that is, not copied from a preexisting work – and “possess[ing] at least some minimal
degree of creativity” (Feist Publications v. Rural Telephone Service Co., 499 U.S. 340,
345 (1991)).
The statutory criterion of original expression served as a translational equivalent of
realness. The translation from realness to originality is not direct. Rather, as always
happens, the preoccupations of the broader context are filtered into jurally salient
terms (Mertz 2007, 219–220, 273 n.49).10 In those terms, the concern with original
expression, like realness, can be viewed as a function of temporality. The require-
ment of independent creation assesses an authorial claim based on chronological
priority.11 A modicum of creativity supposes an author’s presence in the artwork, or
her investment of it with her own experience of “now-ness” in creating it. A different
temporal arrangement might apply were copyright law reformed to accommodate
remix as many jurists propose, but these characterizations apply to the current
regime based on “romantic” authorship,12 or individual genius – a longstanding
cultural belief, too, which is why its muddling by Catfish’s makers triggered the
realness debate.
The plaintiffs filed their complaint on December 3, 2010 in the Central District of
California, a trial-level federal court (CV-10–9318-DMG, C.D. Cal. (2010)). On
November 15, 2011, the defendants filed a motion for summary judgment (SJ). SJ
presents an opportunity to dispose of a case without the added expense and uncer-
tainty of trial. A judge will award summary judgment if she determines that there
exists no “genuine dispute of any material fact” that warrants a trial on the evidence
(Fed. R. Civ. Proc. 56(a)). The lawyers therefore compete to frame the dispute in
10
My larger research project explains realness and originality as proxies for a fundamental quest for social
authenticity, as pursued through works of art.
11
An author might independently replicate a preexisting expression if he had no knowledge of it, but that
hypothetical proves the chronological concern behind almost all cases.
12
For an essay that explains the romantic view while critiquing it, see Burk (2007). Legal scholars
commonly use the term “romantic” to refer to the idea that creativity is the spontaneous expression of
individual genius. Burk analogizes to the mythological birth of Athena, springing forth fully formed
from Zeus’s head.
terms that place it inside or outside the scope of liability. SJ is thus a fruitful setting to
observe contests over meaning during litigation because it is like a concentrated
minitrial among legal professionals who are translating between society and law as
they formulate and test theories of the case.
Some things were not in dispute. A musical recording qualifies expressly for
copyright protection under the statute (an independent copyright may exist in the
written score and lyrics). The defendants did not claim to have written, recorded, or
covered the song, or to have permission to use the recordings of “All Downhill from
Here” sung by one of its actual co-writers. And the issue at hand was not wholesale
inclusion in the soundtrack; an allegation that the song was played over the end
credits was litigated separately.
Rather, the issue was whether the use of portions of the song was illegal or instead
fell under an exception to the copyright monopoly. That partial incorporation is akin
to sampling, a time-honored musical practice – and source of copyright disputes –
taken to a new level by remixers. Although Catfish is not a recording that samples
another, it does repurpose “All Downhill from Here.” The song is part of the plot.
The audience hears it because, and as, the characters introduce and investigate it
through new media. It was this novel use of the song that challenged the application
of copyright doctrine, because of changing expectations about media practices.
Either it was part of a holistic remix of realness, or it was piracy that undermined
the pretense. The specific infringement allegation thus connects the cultural con-
troversy and the legal dispute.
The latter turned on a distinction between “derivative” use and “transformative”
use. On the one hand, a derivative work infringes because it borrows too much – the
law often requires very little – from an original. A derivative use is neither indepen-
dently created nor minimally creative. In short, it copies. On the other hand, fair use
rests on a policy decision to grant educational, journalistic, and social commentary
activities wider latitude to use copyrighted material without liability (17 U.S.C.
§107). The fair use exception gives judges four factors to guide their evaluations;
one of the factors concerns the “purpose and character of the use,” and includes
whether or not the use is commercial.
The Supreme Court has determined that the purpose and character factor speaks
to how transformative the appropriating use is (Campbell v. Acuff Rose Music, 510
U.S. 569 (1994)). Transformative means the new work “adds something new, with a
further purpose or different character, altering the first with new expression, mean-
ing, or message” – precisely what new media afford in unprecedented ways or render
inchoate, depending on one’s perspective. A finding of transformation increases the
likelihood that the new work falls under fair use protection. Whereas a derivative
work is unoriginal by definition, a transformative work often is deemed effectively
original in its own right.
The parties’ briefs on the SJ motion linked realness to this legal distinction. The
defense papers argued that “the fragments of Downhill used in Catfish are
252 Deeb
themselves subjects of real life events documented in the Scene” (Memorandum in

Support of the Motion for Summary Judgment (MSJ), 2),13 meaning the scene in
which Nev realizes Angela’s deception while listening to the song fragments.
Furthermore, they claimed that the filmmakers exercised restraint in playing only
four fragments of various versions of the song even though in reality the trio listened
to the full versions repeatedly while debating whether or not Megan had truly
recorded them (MSJ 4–5). Therefore:
the use of Downhill in the Scene is quintessentially transformative, because the

Filmmakers added completely original and new expression to create one of the
most powerful sequences in Catfish. (MSJ 11)
Accordingly, they argued, the use was fair.

That argument dissolves the amalgam of chronological and unified time that
make the song a complete work of art, and fuses chronological bits of the song to the
film’s temporality. The defendants’ lawyers contrasted the film’s “realistic audio-
visual depiction,” which include the “natural sounds” of the song “to show the real
life events that occurred” in Nev’s story, on the one hand, to the song itself as an
“artfully crafted, non-literal audio only work,” on the other (MSJ 12). In the film, the
song represents an “unchosen, diagetic [sic] element that occurs within documented
real life events in the Scene, while the Works [the original versions of the song] are
carefully constructed” as a standalone work that listeners can experience as the track
plays (MSJ 12).
The defendants’ argument also reiterates their repudiation of any but the most
insignificant marks that distinguish what the filmmakers did from what happened
naturally. If anything, their chronological intervention through editing was an
exercise in restraint to play only as much of the song as necessary to show its organic
contribution to the plot. It may seem paradoxical that their asserted lack of creativity
could result in transformative originality, but only if one takes a conventional,
romantic view of creativity.
The plaintiffs took exactly that view. Their memorandum countered that:
Whether the story in the film is real or fake remains disputed. The movie is filmed in
documentary style, but the actors find themselves in overly serendipitous situations
and critical elements are missing from the film all of which casts doubt on the film’s
“reality” aspect. . .. The film was not advertised as a documentary or as a Michael
Moore-type social commentary, but as a “reality thriller.” (Memorandum in
Opposition of the Motion for Summary Judgment (RSJ), 3)14
That marketing, according to the plaintiffs, gives away its purpose to “entertain (as
opposed to educate),” an imprecise contrast probably intended to invoke the fair use
provision’s distinction between commercial use (not protected) versus non-
13
The defendants filed it on December 16, 2011.
14
The plaintiffs filed it on December 16, 2011.
commercial educational use (potentially protected). The plaintiffs’ contention rests

in part on characterizing use of the song as a fuller graft of its temporality onto the
film rather than piecemeal selection of chronological segments. The plaintiffs’
lawyers contended that “the Song is ever-present in the scene in a continuum, rather
than appearing in distinct separated fragments” (RSJ 5). It counts two minutes of use
of the song, including the entire chorus, which constitute the “entire focus of the
scene.”
The film thus appropriates the song’s temporal, experiential unity in service of the
film’s. The song’s use “ever-so-conveniently foreshadows a suspenseful and dramatic
turning point in the film’s plot” (RSJ 1). The title alone signals that things are “all
downhill from here” after Nev’s discovery of Angela’s deception. Despite their
protestations, the filmmakers “admitt[ed] to editing and re-creating portions of this
scene” (RSJ 3,6), having “‘made a creative decision to put [the song] into the film’”
(RSJ 5). Unadulterated incorporation during the time of narrating acts enhanced the
“intrinsic entertainment value” of the time that is narrated (RSJ 15–17), which marks
the end product as an infringing derivative, as well as “indicates the film was a ruse”
(RSJ 3), which marks it as unreal.
3. A Third Narrative Strand

The translation of the social controversy into those legal arguments involved a third
narrative strand. It is often grammatically implicit in the papers quoted above, but
sometimes explicit, as in this phrase from the plaintiffs’ brief: “There can be no
doubt that the sole purpose of Catfish was to entertain” (RSJ 14). Linguistically,
“there can be” is a present-tense evidential. It combines an objective position
(“there”), a modality of possibility (“can”), and an identifying (copular) verb
(“be”) to posit a proposition (“no doubt that . . . ”).15 It thus interweaves with what
happened and what the filmmakers did to argue legal evidence using grammatical
structure. The resulting braid adds another temporal dimension to the courtroom
interaction, which, ultimately, sets the stage for legal interpretation and enactment.
To see how, we can return to the narrative quality that temporality takes on
through language. “Can be” affirms the inherent open-endedness of a narrative in
progress, while “no doubt” forecloses all but one conclusion.16 As with any other
layer of narrative time, meaning derives from its temporal duality. The sequencing
of the evidential clause’s content-less spin followed by the propositional content of
15
“There” is an example of deixis; like pronouns, it is an abstraction that nonetheless supposes a
contextual relation (Hanks 2005). This context-dependence also means such words are “inherently
metapragmatic,” or always organize some aspect of their context of expression through metalinguistic
structuring (Silverstein 1993, 39). “There” establishes an objective reference point for the ensuing
claim about what happened in Catfish. This property makes it an evidential (see Jakobson 1971, 135).
On “can” and other modals, which integrate with tense and aspect to make a grammatical system of
temporality, see Comrie (1976).
16
For the “plurality of possibilities” before a narrative conclusion, see Morson (1994).
254 Deeb
the clause about Catfish’s purpose (“that . . . ”) makes the argument possible. The
complete sentence makes that sequence argumentative.17 Together, they constitute
a time of narrating acts that comments on what happened and what the filmmakers
did. The present-tense evidential marks that distinction.
The interweaving is even more apparent in the transcript of the SJ hearing, which
took place for approximately half an hour before U.S. District Judge Dolly M. Gee
in the federal courthouse in downtown Los Angeles on January 13, 2012.
Representing the moving party, the defendants’ lawyer spoke first and also had
rebuttal time after the plaintiffs’ lawyer spoke. To win, the defendants had to
convince the judge that fair use was an inevitable conclusion. The plaintiffs only
had to sow doubt.
Example 1, shown in Table 12.1, reproduces a small portion of the exchange
between the judge and the plaintiffs’ attorney. I examine the excerpt using the
method of conversation analysis, which investigates how participants in an
unfolding interaction construct context and meaning as they go along, through
the combination of what they say (semantics) and how they say it (pragmatics)
(Schegloff 2007). Interactions in institutional settings follow the same principle
as ordinary conversation, but have built-in constraints with simultaneously
linguistic and social ramifications, such as the norm that a judge ask questions
from a position of neutrality and a lawyer assert statements from a position of
advocacy (Heritage and Clayman 2011). Although a full analysis addresses
everything from words and sentences to nonlexical utterances (ums, ohs, etc.)
and silences to corrections and norm violations, I have streamlined mine here
to focus on the stances that the participants constructed toward Catfish’s
originality and, in particular, the temporality of those stances. Each turn that
one person takes in a conversation draws upon some shared (or conflicting)
expectations of its appropriate format, but even more so upon the preceding
turn(s) – and shapes what another person does in the next turn. This depen-
dent trajectory provides an up-close perspective on the narrative braiding I have
been describing. This observable compactness of the face-to-face interaction
therefore illuminates brightly how time works in legal argumentation.
The attorney’s first turn displays the pattern in which an evidential phrase frames an
account of what happened and what the filmmakers did. The first sentence is in that
order: my understanding is – the song was sent – the scene was shot (Lines 10.09–10.11).
The next is not, but the conjunctions he uses make the clauses amount to: this is –
“Tennessee Stud” was sent first – they talked to construct/the scene was put together
(Lines 10.11–10.15).18 (“Tennessee Stud” (Driftwood 2008) is another song Megan
17
For the linguistic “temporal juncture” (Labov) whereby one clause “affords the possible occurrence of”
(Ochs) the other to construct narrative, see Labov (1972, 361) and Ochs (2004, 271).
18
The move from “my understanding is” to “there is” is one instance where a participant shifts between a
claim of subjective knowledge to one of objective fact in employing evidential language. For more on
that observation, see Deeb (2015).
table 12.1 Example 119
10.09 ATT: My understanding is, is that the song

10.10 was sent a couple of days before the film - - before the scene
10.11 was actually shot. And the way the scene was put together,
10.12 and some of this is from some of the outtakes, is that they
10.13 talked about it in a way to construct it together with the
10.14 “Tennessee Stud” song, because the “Tennessee Stud” song was
10.15 sent first.
10.16 You also see - - there’s evidence in the
10.17 record about how they went back, and they edited those scenes
10.18 and they added portions to the scenes to - - I don’t know - -
10.19 enhance the scenes somehow by adding the graphics and other
10.20 things to overlay in the scene.
10.21 So it’s not, they just turned the camera on,
10.22 and that’s what happened.
10.23 JUD: But is there any dispute that there
10.24 was any preconceived idea that they were going to use this
10.25 particular song? Or is it - - do you have any evidence that
11.01 Angela was in cahoots with them when they decided to use this
11.02 song, or did it just actually just happen to be that song
11.03 that she sent?
11.04 ATT: It apparently just happened to be that
11.05 song that was sent, but I don’t think that that is the test
11.06 for transformative use, in terms of what the character of the
11.07 use is, what the purpose of the use is.
supposedly sang.) The pattern continues with: You see/there is – they went back/they
edited/they added (Lines 10.16–10.20). The attorney concludes by summarizing his
narrative with a non-context-dependent declarative: it is not – they turned the camera
on – that’s what happened (Lines 10.21–10.22). These lines contain the essence of the
plaintiffs’ argument that the evidence showed divergence between what the filmmakers
did and what actually happened. By manipulating the chronology of the plot events, the
filmmakers destroyed the possibility of experiencing those two times as a merged event.
The judge does the same thing, but, following institutional convention,20 uses
the interrogative form to propose an alternative: is there (dispute) – was pre-
conceived/they were going to use (Lines 10.23–10.25). Her task requires ascer-
taining the lines of dispute, one of which she draws as a question of a
preconceived plan to use “All Downhill from Here.” She specifies that by
preconceived, she means prior collaboration between the filmmakers and
19
“10.09,” etc., means page 10, line 9 of the official transcript. See Transcript of the Hearing on the
Motion for Summary Judgment (TSJ). For simplicity, I have substituted “ATT” for attorney and
“JUD” for judge.
20
For a discussion of how the principles of neutrality and rule of law translate into the linguistic
convention that judges ask questions and avoid (not entirely) making arguments, see Deeb (2013, 45).
256 Deeb
Angela (Lines 10.25–11.02). She then rephrases her proposed alternative to empha-
size what happened (i.e., imputing no prior planning to the filmmakers) rather
than what the filmmakers did: did it – just happen to be the song sent (Lines 11.02–
11.03). Like “it is not,” “did it” – or “it did” – is a non-context-dependent declara-
tive. Like the attorney’s declarative statements, this formulation is the judge’s way of
weaving in the present-tense, evidential strand of the narrative relevant to adjudica-
tion (but absent, at least in this way, from the social debate). Using it in her
question suggests the judge’s preference to interpret the events as happenstance,
rather than premeditation.21 In other words, preconceived manipulation would
corrupt the chronology, whereas merely taking advantage of chronological coin-
cidence would not disrupt the confluence of what happened and what the film-
makers did into a unified experience. This alternative lies between the parties’
positions. The preferential pull of “did it” is borne out by the attorney’s response, in
which he begins to agree, “It apparently just happened to be,” before rejecting the
judge’s line for evaluating fair use (Lines 11.04–11.07).22
iii. the moment of possibles

That question design and partially aligned response point to the significance of how
these interlocutors cooperated to construct contrast. Another example is the judge’s
use of the conjunction, “But,” to revive debate after the attorney’s summary state-
ment at the end of his first turn. The evidential phrases themselves serve a similar
function. Occurring typically at the beginning of sentences or phrases, they calibrate
the position (“my understanding,” “there is”), source (“this is from”), and institu-
tional relevance (“is,” “do”) that frame the evaluation of legal propositions. This
complete narrative braid of what happened, what the filmmakers did, and what the
legal evidence was allows for an extremely close-up analysis of the moment of
possibles when these legal professionals argued with (not merely against) each
other. The accumulating chain of such moments, I argue, is a key foundation of
the legal realist point about cross-pollination between legal and social factors.
To begin with, the judge’s and lawyer’s way of speaking in Example 1 tied together
semantic arguments to facilitate rather than foreclose further argumentation.
Working primarily from Peirce’s model of semiotics, Roberta Kevelson and Justin
Richland have demonstrated that legal reasoning – as exemplary of reasoning in
general – inherently entails multiple interpretive “possibles” (Kevelson 1990, 15). In
any “semiotic moment” (Richland 2008, 94), the possibilities may coalesce into one
21
On preference in question design, see, e.g., Pomerantz 1984. Philips (1998, 48–77) shows how judges’
contrasting questioning styles in taking criminal pleas both influences the kind of answers they receive
and also reflects each judge’s background beliefs about the adjudicator’s role and other things.
22
He adds “apparently,” which signals his upcoming resistance. Slightly contrastive repetition is a
hallmark of “format tying, or reuse of the material in prior talk permits a subsequent speaker to
build a reciprocal encounter that is precisely shaped to the talk that is being opposed” (Goodwin 1990,
91). On format tying in courtroom talk, see Deeb (2013).
interpretation, guided in one direction or another by background assumptions or

beliefs (also called “linguistic ideologies”) that always lie behind linguistic choices.23
The settled-on interpretation, however, immediately becomes the basis for reinter-
pretation in the next moment. Like a flowing river, the progression itself ensures that
no interpretation is precisely identical to the one settled on in a preceding moment.
For those scholars, the result is paradoxical because the knowledge attained in any
moment exists among all the unselected alternatives, which it also never completely
forestalls from reemerging (so that even a final adjudication may not end debate). The
social significance of this semiotic paradox is that, rather than paralyzing, it gives
kaleidoscopic opportunity to exploit complication, irony, contradiction, and, for
Kevelson, to pursue greater freedom through proliferating knowledge.
I wish to specify further the temporal constitution of this moment of interpretive
possibility, drawing closer together in that respect Richland’s elucidation of court-
room pragmatics and Kevelson’s exploration of Peirce’s own thinking about “time as
method” (Kevelson 1987, 98).24 That fundamental tenet of his philosophy holds that
the paradox of reasoning makes it a continual process. To accept an interpretation as
settled in its moment is also to “accept the before and after aspects of” it (Kevelson
1987, 101). But that “common sense” understanding of time is not strictly chronolo-
gical. Rather, “we find Peirce saying that the future is as real as the present,” insisting
on “the infinite” of becoming (Kevelson 1987, 97). Before and after do not mean-
ingfully distinguish identical “instants” of time from one another except through
reflection upon the incompleteness that moving from one instant to another implies
for each of them (Kevelson 1987, 103, 111). Therefore, accumulating data points leads
to reasoned understanding only if the points are connected in “interrelationships of
meaningful representations, or ideas” (Kevelson 1987, 98).
In other words, legal reasoning reflects the temporal duality of chronological time
and unified, existential time (the experience of “now”). This duality harbors the
potential for reasoning about propositions. That pursuit of meaning also reflects the
logic of narrative.25 In legal settings, argumentation is driven by pragmatic elements
such as evidentials in the juridical time of narrating acts. This structure occurs
throughout legal reasoning, for example, in the briefs, where those elements are
voiced from within the adjudicative event as a whole. It may be most observable,
however, in courtroom conversation, as attested by Richland’s application of Peirce
to Hopi Tribal Court disputes (2008, 89–113).
To use language in conversation is to employ chronology: “in conversation, there
is always an earlier and a later” (Hanks 1996, 196). But language use also invokes
23
Silverstein (e.g., 1998) introduced the notion of linguistic ideologies, which Richland reads together
with Peirce (Richland 2008, 95). See also Woolard (1998).
24
Notably, she remarks that Peirce is arguing against “Dewey’s later evolutionary logic,” Dewey being
another pragmatist who greatly influenced legal realist thought (Kevelson 1987, 102).
25
The semiotic term for the organizing logic is metapragmatics, discussed earlier in relation to the time
of narrating produced by the evidential layer of language (see Silverstein 1993, 39).
258 Deeb
T0 T1
sign object Pragmatic > sign object Pragmatic

interpretant interpretant
Metapragmatic Metapragmatic
fi gu r e 1 2 .1 The Temporality of the Moment of Possibles
unified time. Their mutuality is highlighted by a commonplace occurrence in

ordinary conversation: a speaker says something, another responds, and the first
speaker tries to correct an apparent misunderstanding (see Schegloff 1992). The
impulse to repair brings out how a progression coincides with an existential question
of understanding between interlocutors.
I would characterize as a moment of possibles the gap between what the first
speaker says and the second speaker’s misunderstanding response, as well as the
following one before the first speaker reacts with a correction. Each gap represents
an ephemeral convergence between the chronological progression of the talk and
existential coherence of the conversation. It is ephemeral because of temporality’s
flowing quality, as well as because the gap does not quite belong to any (or all)
participants, need not create neat edges between turns, and need not even occur
between turns at all. It could happen while people talk over each other, for example,
or as a speaker adjusts mid-turn, perhaps cued by a listener’s non-verbal reaction.26
That said, Figure 12.1 stylizes this moment of possibles in semiotic terms. The
arrow indicates the sequence between utterances in an unfolding conversation, from
T0 to T1. T stands for time and often for turn as well. The gap between the lines is the
moment of possibles. The “>” that fills it stands for the temporal convergence, or the
influence T0 has on T1 plus their co-dependence for meaning.
Beneath each T is a sketch of Peirce’s model for how such meaning is created,
which is essentially the same one Kevelson and Richland apply to legal reasoning.
Linguistic anthropologist Paul Kockelman gives the example of someone shouting,
“Ouch!”, which is a sign (the verbal exclamation) pointing to an object (pain)
(Kockelman 2007, 378). To have meaning, that relation requires another between
the object and an interpretant. For practical purposes, an interpretant is usually a
person’s thought or, more precisely, what a person does to interpret the situation; as
Peirce writes, an interpretant is a “cognition produced in the mind” (Peirce 1991, 183).
26
Conversation analysts typically transcribe such that silences that clearly occur between two indivi-
duals’ turns are assigned a separate line and are not considered part of either. They also use brackets to
precisely align and indicate overlapping talk – a kind of vertical rather than horizontal representation
of the temporal gap (e.g., Clayman and Heritage 2002).
ATT JUD
“So it’s not...what happened” “But...did it happen to be”
a claim about the case a claim about the case

a claim as the case a claim as the case
moment of interpretive possibility as to lawyerly knowledge “about”

and intersubjective possibility as to lawyerly experience “as”
fi gu r e 12 . 2 A Moment of Possibles in the Catfish Hearing
The person hearing the cry “Ouch!” will typically think that an injury caused another
person to cry out in pain. Absent an interpretant or cognition of this kind through
which a signal is interpreted, there is no meaning. This semantic meaning (“someone
was just injured and is in pain”) is the product of how these elements (sign, object,
interpretant) work together, so their combination also tells us how that meaning is
produced – its pragmatics (where and when the cry originated, where and when the
hearer was located, how the cry sounded – many aspects of the context). The double
arrow between pragmatics and “metapragmatics” simply refers to how pragmatics is
always organized by the background assumptions about language behind any linguis-
tic choice (as noted, these are linguistic ideologies, which are a type of metalanguage
that relies on context for meaning – also known as metapragmatics).
Stepping back from the micro-structure, I also noted earlier another way to put
that last point, namely, as the causal logic of narrative. In the Catfish proceeding,
that logic played out through the conversational time of the narration in court.27
Figure 12.2 shows the same idea as Figure 12.1 on that narrative level. It zeroes in on
the moment from Example 1 between the plaintiffs’ attorney’s summary (that the
filmmakers did not simply turn on the camera and film what happened), and the
judge’s challenge (positing the distinction between preconceived manipulation and
happenstantial inclusion of “All Downhill from Here”).
Recall, for example, that the attorney fortified his position within his own
turn, moving from subjective to objective evidentials before concluding with a
declarative statement about what happened. The moment of interpretive possi-
bility follows. The judge could have accepted, if not yet explicitly agreed with,
the proffered account and ended her questions. Or she might have ridiculed the
attorney’s argument. She chose an in-between stance. She combined several
27
Thus, the narrative drive coincides with conversation in another organizing way: the framework of
conversation is “of a piece” with the devices employed within it (compare Schegloff (1992, 1340)).
260 Deeb
devices to challenge the attorney’s proposition while continuing the debate,

starting with the contrastive, evidential, and interrogatory phrase, “But is
there.” Before the next moment of possibles, she, too, fortified her position by
breaking down her question with the sequence of “is it,” “do you,” and “did it”
to funnel the attorney’s upcoming response toward the judge’s preferred one. As
described earlier, he “apparently” agreed while bending the interpretation
toward an opposite legal conclusion.
That temporality of the talk about the case is also temporality of the talk as the
case, or part of what gives these speakers legitimacy to wield language jurispruden-
tially. The fortification within turns, the possibility of agreement or ridicule, and the
subtler choices the participants actually made all point toward this aspect as a
moment of intersubjective possibility. These are all instances of the general pattern
highlighted in ordinary conversation by a speaker’s impulse to correct perceived
misunderstanding. In everyday conversation, intersecting forms of temporality allow
people to understand each other, even if that understanding means disagreeing,
fighting, or evading.
In court, skilled engagement with institutional temporality builds professional
legitimacy between the participants, even though it is an adversarial, artful, and
often intellectually intricate process. In keeping with his institutional role as a
zealous advocate, but also an officer of the court presided over by the judiciary,
the attorney’s pragmatics forcefully but respectfully assert mastery over the evidence
and the evidentiary standard. The judge’s pragmatics adhere to a norm of penetrat-
ing, but at least nominally neutral, probing of arguments. By competing over the
narrative of “what happened,” “what the filmmakers did,” and “what the evidence
is,” these legal professionals move forward through the hearing while simultaneously
inhabiting it as a coherent legal event. In doing so, they “do” law; in a sense, they add
yet another, bigger narrative dimension. This activity makes law – an adjudicative
outcome in the case as well as a concomitant projection of institutional authority –
out of the possibilities introduced by combining the underlying social events and
jurisprudential frames.
The cohesiveness seen in the Catfish example is illuminated by another case in
which things momentarily fell apart. At an idea theft trial I attended during the same
period of fieldwork, the plaintiffs’ lawyer exasperated not only a defense witness with
his hesitating, repetitive, and roundabout questioning, but also the judge, who
rebuked him for it and threatened sanctions in open court. The lawyer failed to
work within the bounds of institutional temporality. A cross-examining attorney may
have to rephrase a question, but to hem and haw, shuffle papers, and repeat the same
question disrupts the expected progression of the proceeding as well as the
emplotted now-ness that makes people feel they are living (or observing) a coherent
experience of the law.
Whether it works or not, each moment of possibles thus affords each participant
the opportunity to reaffirm his or her status as a legitimate participant in this
cooperative activity. Legal reasoning as a shared practice piggybacks on reasoning

about the case, and reasoning about the case piggybacks on the pragmatics of
reasoning. Both sides of the coin rest on, and interconnect through, the duality of
temporal experience.
iv. conclusion
I have argued that legal reasoning includes moments that harbor the joint possibility
of coordinated argumentation and professional legitimization. Each moment is
composed dually of chronology and unified “now-ness,” which combine into tem-
poral experience. That temporality plays out through language use on parallel
semiotic, grammatical, and narrative levels. In a social controversy over the realness
of the film Catfish, critics reacted by comparing the time of narrated acts, or what
happened, to the time of narrating acts, or what the filmmakers did. When the
holders of the copyright to a song used in the film sued for infringement, the realness
controversy translated into one about originality. In the legal papers and courtroom
talk, a third strand of narrating acts was imposed, that of legal evidence. The co-
constructed, argumentative narrative proceeded along a chain – or, better, web – of
moments of simultaneously interpretive and intersubjective possibility.
That weblike quality extends the significance of temporality beyond the face-to-
face proximity of courtroom conversation or the less continuous circulation of legal
briefs to even more extended intertextual connections across the institution of law.
In his ethnography of a French court, Bruno Latour does not do detailed linguistic
analysis, but he certainly demonstrates that the connections between what I have
called interpretive talk about law and intersubjective talk as law extend even through
the physical uses of bodies, buildings, and paperwork. In prefacing why he under-
took the project, Latour points out “the immense difference, easy to grasp, between
speaking about law and speaking legally” (Latour 2010, ix). He emphasizes the
distinction because speaking legally often receives too little attention as a constituent
of legal reasoning, especially from legal professionals who consider reasoning to be a
linguistically detached mode of analysis. Yet, as Elizabeth Mertz has shown in her
account of how the Socratic method socializes U.S. law students to “think like a
lawyer,” in at least some societies speaking about law and speaking legally converge
from the start to form a professional habitus (Mertz 2007).
Prying open the continuity of habit is one way to see a temporal underpinning of
the basic legal realist insight into legal reasoning. The intersection of legal dis-
course’s interpretive and intersubjective aspects in a moment of possibles can
stabilize or destabilize, or do both at the same time at different levels of magnitude –
like exceptional cases that prove the rule or uncompromising decisions that catalyze
political reform.
As a matter of quotidian legal practice, the moment harbors the potential for
persuasion. Persuasion is a concept often taken for granted, left amorphous, or
262 Deeb
elided into one or another preferred basis of decision, but it is undoubtedly a major
goal of juridical activity.28 Success or failure in persuading can enhance or diminish
one’s capital as a lawyer or judge, not to mention a client’s capital or the institutional
equivalent of legitimacy. Any metric of persuasion is inextricable from how it
motivates the quest for capital under the conditions of a given legal setting.
That question of “how” returns to the somewhat tense symbiosis between
chronological and unified time, each of which conditions the other’s contribution
to experience. In legal settings such as a courtroom, this mutual conditioning
undergoes regular reframing through the language of evidence. The motivation to
make the two kinds of time converge drives persuasive reasoning toward each
moment of possibles, which paradoxically, but productively, drives the process on
again, forming evidential narratives. The relentless pressure to persuade means
that interlocutors must continually build and reorganize the framework for under-
standing each other as much as array arguments within that framework. This open-
ended (con)test – a both cooperative and contentious trying out of possibilities – is
one way that social events and attitudes get inside legal reasoning, as realness did
with respect to originality in the Catfish case, reproduced as much as enlisted
while the professionals tried to make persuasive sense of that temporal question:
what happened?
references
Berman, Thomas, and Gail Deutsch. 2010, October 8. “Inside ‘Catfish’: A Tale of Twisted
Cyber-Romance,” 20/20 (ABC News,). Accessed September 4, 2014. http://abcnews.go
.com/2020/catfish-movie-tale-twisted-cyber-romance/story?id=11817470.
Bourdieu, Pierre. 1990. The Logic of Practice. Translated by Richard Nice. Stanford: Stanford
University Press.
Bourdieu, Pierre. 1995. The Rules of Art: Genesis and Structure of the Literary Field. Translated
by Susan Emanuel. Stanford: Stanford University Press.
Bruner, Jerome. 1991. “The Narrative Construction of Reality.” Critical Inquiry 18: 1–21.
Buchanan, Kyle. 2010. “Does Sundance Sensation Catfish Have a Truth Problem?”
Movieline, January 29. Accessed July 17, 2013. http://movieline.com/2010/01/29/does-sun
dance-sensation-catfish-have-a-truth-problem/.
Burk, Dan. 2007. “Method and Madness in Copyright Law.” Utah Law Review 3: 587–618.
Campbell v. Acuff Rose Music, 510 U.S. 569 (1994).
Clayman, Steven, and John Heritage. 2002. The News Interview: Journalists and Public Figures
on the Air. Cambridge: Cambridge University Press.
Cohen, Amy B. 1990. “Copyright Law and the Myth of Objectivity: The Idea/Expression
Dichotomy and the Inevitability of Artistic Value Judgments.” Indiana Law Journal 66:
175–232.
Comrie, Bernard. 1976. Aspect: An Introduction to the Study of Verbal Aspect and Related
Problems. Cambridge: Cambridge University Press.
28
For the insights offered by one scholar who grapples regularly with the problem of persuasion, see
Singer (1989; 2009).
Conley, John, and William O’Barr. 2005. Just Words: Law, Language, and Power, 2nd edition.
Chicago: University of Chicago Press.
Deeb, Hadi Nicholas. 2013. “Boiling Down to the M-Word at the California Supreme Court.”
Journal of Linguistic Anthropology 23(1): 41–64.
Deeb, Hadi Nicholas. 2016. “CopyCatfish: Copyright Adjudication as the Cultural
Interpretation of Blurred Genres.” In Intellectual Property in Context: Towards a Law &
Society Perspective, edited by William Gallagher and Debora Halbert, forthcoming.
Cambridge: Cambridge University Press.
Driftwood, Jimmie. 2008. “Tennessee Stud,” Songs of the Pioneers. Saland Publishing.
Ekberg, Aida. 2010. “More About ‘Catfish’ True Story Revealed on 20/20.” Yahoo!Voices,
October 9. Accessed July 17, 2013. http://bogbit.com/more-about-catfish-true-story-revealed-
on-2020-spoiler-alert/.
Erlanger, Howard, Bryant Garth, Jane Larson, Elizabeth Mertz, Victoria Nourse, and David
Wilkins. 2005. “Foreword: Is It Time for a New Legal Realism?” Wisconsin Law Review
2005(2): 335–363.
Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991). ed. R. Civ. Proc.
56(a). 17 U.S.C. §107.
Goodwin, Marjorie H. 1990. He-Said-She-Said: Talk as Social Organization among Black
Children. Bloomington: Indiana University Press.
Hanks, William. 1996. “Exorcism and the Description of Participant Roles.” In Natural
Histories of Discourse, edited by Michael Silverstein and Greg Urban, 160–200. Chicago:
University of Chicago Press.
Hanks, William. 2005. “Explorations in the Deictic Field.” Current Anthropology 46(2): 191–220.
Heidegger, Martin. 1962. Being and Time. Translated by John Macquarie and Edward
Robinson. New York: Harper & Row.
Heritage, John, and Steven Clayman. 2011. Talk in Action: Interactions, Identities, and
Institutions. Hoboken, NJ: John Wiley & Sons.
Husserl, Edmund. 1991. On the Phenomenology of the Consciousness of Internal Time.
Translated by John Barnett Brough. Dordrecht, the Netherlands: Kluwer.
Hutcheson, Scott. 2010. “Catfish: Real or Fake? It’s a Fake . . . Sort Of.” Very Aware,
September 17. Accessed July 17, 2013. http://veryaware.com/2010/09/catfish-real-or-fake-its-
a-fake-sortof/.
IMDB. Accessed May 30, 2013. http://www.imdb.com/title/tt1584016/.
Jakobson, Roman. 1971.“Shifters, Verbal Categories, and the Russian Verb.” In Roman
Jakobson: Selected Writings, Vol. 2: Word and Language, 130–147. The Hague: Mouton
de Gruyter.
Jenkins, Henry. 2006. Convergence Culture: Where Old and New Media Collide. New York:
New York University Press.
Kevelson, Roberta. 1987. Charles S. Peirce’s Method of Methods. Amsterdam: John Benjamins.
Kevelson, Roberta. 1990. Peirce, Paradox, Praxis: The Image, the Conflict, and the Law. Berlin:
Mouton de Gruyter.
Kockelman, Paul. 2007. “Agency: The Relation between Meaning, Power, and Knowledge.”
Current Anthropology 48(3): 375–401.
Kohn, Eric. 2010. “Exclusive: ‘Catfish’ Filmmakers Grilled on Truth & Fiction.” The Wrap,
January 30. Accessed July 17, 2013. http://www.thewrap.com/movies/ind column/sundance-
catfishfilmmakers-grilled-truth-fiction-13702.
Labov, William. 1972. Language in the Inner City: Studies in the Black English Vernacular.
Philadelphia: University of Pennsylvania Press.
264 Deeb
Latour, Bruno. 2010. The Making of Law: An Ethnography of the Conseil d’Etat. Translated by
Marina Brilman and Alain Pottage. Cambridge: Polity Press.
Lessig, Lawrence. 2008. Remix: Making Art and Commerce Thrive in the Hybrid Economy.
London: Bloomsbury.
Longworth, Karina. 2010. “Catfish: The Ultimate YouTube Movie.” The Village Voice,
January 29. Accessed July 17, 2013. http://www.voicefilm.com/2010/01/catfish_the_ultima
te_youtube_movie php.
Manovich, Lev. 2001. The Language of New Media. Cambridge: MIT Press.
Merleau-Ponty, Maurice. 2005. Phenomenology of Perception. Translated by Colin Smith.
London: Routledge.
Mertz, Elizabeth. 2007. The Language of Law School: Learning to “Think Like a Lawyer.”
New York: Oxford University Press.
Morson, Gary Saul. 1994. Narrative and Freedom: The Shadows of Time. New Haven: Yale
University Press.
Ng, Kwai. 2009. The Common Law in Two Voices: Language, Law, and the Postcolonial
Dilemma in Hong Kong. Palo Alto: Stanford University Press.
Nourse, Victoria, and Gregory Shaffer. 2009. “Varieties of New Legal Realism: Can a New
World Order Prompt a New Legal Theory?” Cornell Law Review 95: 61–138.
Ochs, Elinor. 2004. “Narrative Lessons.” In A Companion to Linguistic Anthropology, edited
by Alessandro Duranti, 269–289. Malden, MA: Blackwell Publishing.
O’Hehir, Andrew. 2010. “Untangling the ‘Catfish’ Hoax Rumors.” Salon, October 14. Accessed
July 17, 2013. http://www.salon.com/2010/10/14/catfish/.
Peirce, Charles. 1991. Peirce on Signs. Edited by James Hoopes. Chapel Hill: University of
North Carolina Press.
Philips, Susan. 1998. Ideology in the Language of Judges: How Judges Practice Law, Politics,
and Courtroom Control. New York: Oxford University Press.
Pomerantz, Anita. 1984. “Agreeing and Disagreeing with Assessments: Some Features of
Preferred/Dispreferred Turn Shapes.” In Structures of Social Action: Studies in
Conversation Analysis, edited by J. Maxwell Atkinson and John Heritage, 57–101.
Ricardo, Francisco. 2009. “Formalisms of Digital Text.” In Cyberculture and New Media,
edited by Francisco Ricardo, 23–50. Amsterdam: Editions Rodopi.
Richland, Justin. 2008. Arguing with Tradition: The Language of Law in Hopi Tribal Court.
Chicago: University of Chicago Press.
Ricoeur, Paul. 1981. “Narrative Time.” In On Narrative, edited by W.J. Thomas Mitchell,
1–23. Chicago: University of Chicago Press.
Ricoeur, Paul. 1984. Time and Narrative, Vol. 1. Translated by Kathleen McLaughlin and
David Pellauer. Chicago: University of Chicago Press.
Ricoeur, Paul. 1985. Time and Narrative, Vol. 2. Translated by Kathleen McLaughlin and
David Pellauer. Chicago: University of Chicago Press.
Schegloff, Emanuel. 1992. “Repair after Next Turn: The Last Structurally Provided Defense of
Intersubjectivity.” American Journal of Sociology 97(5): 1295–1345.
Schegloff, Emanuel. 2007. Sequence in Interaction: A Primer in Conversation Analysis, Vol. I.
Silverstein, Michael. 1993. “Metapragmatic Discourse and Metapragmatic Function.” In
Reflexive Language: Reported Speech and Metapragmatics, edited by John Lucy, 33–58.
Silverstein, Michael. 1998. “The Uses and Utility of Ideology: A Commentary.” In Language
Ideologies: Practice and Theory, edited by Bambi B. Schieffelin, Kathryn A. Woolard, and
Paul V. Kroskrity, 123–145. New York: Oxford University Press.
Singer, Joseph. 1989. “Persuasion.” Michigan Law Review 87(8): 2442–2458.
Singer, Joseph. 2009 “Normative Methods for Lawyers.” UCLA Law Review 56: 899–982.
Suchman, Mark, and Elizabeth Mertz. 2010. “Toward a New Legal Empiricism:Empirical
Legal Studies and New Legal Realism.” Annual Review of Law and Social Science
6: 555–579.
Urban Dictionary. Accessed August 26, 2014. http://www.urbandictionary.com/define.php?
term=catfish.
Woolard, Kathryn. 1998. “Language Ideology as a Field of Inquiry.” In Language Ideologies:
Practice and Theory, edited by Bambi Schieffelin, Kathryn Woolard, and Paul Kroskrity,
3–47. New York: Oxford University Press.

2016 - Deeb - Some New Legal Realism - Livro

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2016 - Deeb - Some New Legal Realism - Livro

Uploaded by

Copyright:

Available Formats

12

The Moment of Possibles: Some New Legal

Hadi Nicholas Deeb*

244Australia (Journals), on 01 Aug 2017 at 08:57:18, subject to the

I elaborate by analyzing the summary judgment motion in a copyright infringe-

In my conclusion, I propose further that this concurrence of knowing and

ii. “reality thriller”

1. Two Narrative Times

From this perspective, the filmmakers failed to prevent their representation of a

That research turned up suspicious chronological divergences. He argued that Nev’s

2. Realness Translated into Originality

themselves subjects of real life events documented in the Scene” (Memorandum in

the use of Downhill in the Scene is quintessentially transformative, because the

Accordingly, they argued, the use was fair.

commercial educational use (potentially protected). The plaintiffs’ contention rests

3. A Third Narrative Strand

table 12.1 Example 119

10.09 ATT: My understanding is, is that the song

iii. the moment of possibles

interpretation, guided in one direction or another by background assumptions or

sign object Pragmatic > sign object Pragmatic

fi gu r e 1 2 .1 The Temporality of the Moment of Possibles

unified time. Their mutuality is highlighted by a commonplace occurrence in

“So it’s not...what happened” “But...did it happen to be”

a claim about the case a claim about the case

moment of interpretive possibility as to lawyerly knowledge “about”

fi gu r e 12 . 2 A Moment of Possibles in the Catfish Hearing

devices to challenge the attorney’s proposition while continuing the debate,

cooperative activity. Legal reasoning as a shared practice piggybacks on reasoning

You might also like