The Language of Law School This page intentionally left blank

The Process of Reading Cases
Each written case law text reports a decision by the authoring court, a determina-
tion as to the outcome of a conflict on which that court has been asked to rule.
Thus, these legal texts have a peculiar character. In one sense, they report on a
decision made by the judge or judges, but at the same time the texts themselves
actually
are
 the decisions: the words of the texts constitute or “perform” the deci-
sions. Philosophers and linguists have talked about this kind of language as
“performative”: it performs or enacts the action that it names.
44
 For example, when
an official vested with the appropriate authority utters the words “I now pronounce
you man and wife,” she not only describes what she is doing (marrying two people)
but also actually performs that act. Similarly, the written text that describes a court’s
disposition of a legal case also performs the act of deciding that case. Thus, the
language in legal texts can be said to carry social power.
Legal readings of these case law texts are carefully structured around decipher-
ing this powerful language, which decides often hotly contested social conflicts.
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We have already encountered two key aspects of the case law genre: (a) cases in-
voke legal 
precedent
 to justify their decisions; that is, they rely on language from
previously decided cases; and (b) a case law text typically points to the 
procedural
history
 of the legal case in question. We will now explore how these two features of
case law texts are intertwined with other distinctive facets that, together, define the
genre. As we will see, the structure for legal reading created by this case law genre
attempts to limit and shape the socially powerful implications of textual language.
One constant feature of this limiting structure is a continual invocation or index-

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Learning to Read Like a Lawyer
61
ing of layers of legal authority, focused in large part on the question of who gets to
decide what.
READING PRECEDENT
For example, in drawing on precedent, courts follow an interpretive doctrine known
as “stare decisis”:
To abide by, or adhere to, decided cases. Policy of courts to stand by precedent and
not to disturb settled point. . . . Under doctrine a deliberate or solemn decision of
court made after argument on question of law fairly arising in the case, and neces-
sary to its determination, is an authority, or binding precedent in the same court, or
in other courts of equal or lower rank in subsequent cases where the very point is again
in controversy.
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The precedential authority of a case text depends on the hierarchical position of
the court from which it issues as well as on the topic in question, so that on mat-
ters of federal law, U.S. Supreme Court opinions are deemed “binding” on lower
federal courts and all state courts. Conversely, on matters of state law, opinions
issued by the supreme courts of the individual states are viewed as authoritative.
Appellate courts at times explicitly overrule their own precedents, or they may
“limit” prior decisions by imposing narrow interpretations on precedential texts.
Of course, a case operates as precedent only when it is drawn on in subsequent
opinions.
To invoke precedent, authors of legal cases have to build analogies between
the case before them and earlier cases. There are several steps required to create
(or decipher) these analogies: one needs to identify which legal issue or issues are
at stake, to understand and use the technical legal concepts involved in analyzing
those issues, and to select particular “facts” that are relevant to the issue. Once these
facts are selected, it is possible to make analogies between them and the relevant
facts in previous cases. This deceptively simple-sounding set of tasks is at the heart
of the legal reading that many scholars have struggled to describe and dissect.
Note, then, that there is a legal story that must be told of the events in ques-
tion in order for this process of analogizing to proceed. However, the particular
aspects of those events (crystallized into facts) that form the core of a legal story
are quite different from the usual narrative that might be told by laypeople. As I
have indicated, the facts selected for a legal story are structured by the legal issues
at stake in this particular conflict. These issues in turn are defined by categories
generated from statutes or other similarly formalized rules, and/or (via precedent)
from earlier cases. Thus, for example, if we know from previous cases that courts
will deem a contract to be formed only if there is an “offer” and an “acceptance” of
the offer, we will look at previous cases to determine what sorts of words or ac-
tions counted as offers and acceptances, and then attempt to find similar words or
actions in the case at hand. Arguments as to whether a contract was formed will
then center on whether the words or actions in this case were analogous to those
in previous cases, with opposing parties arguing for and against. At times, it may
be that there isn’t really much of an issue on this point. Perhaps it is quite clear

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62
Similarity
that there was an offer and acceptance, and the only really arguable point is whether
the contract thereby formed was breached, or broken. Part of what students must
learn is when to fight over an issue, and when to concede: when is there a debat-
able point over analogies, and when is it a waste of time? This is a very important
part of their training, for attorneys who pursue frivolous issues can in extreme cases
actually be formally sanctioned. (A more common disincentive is that frivolous
arguments waste valuable space in briefs, in addition to trying the presiding judge’s
patience.)
READING PROCEDURE
We have discussed one kind of framework for reading cases, that of the textual
context provided by precedent.
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 We now turn to examine the framework provided
by the procedural history of a case.
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 Just as the authority of a case as precedent is
in part a function of the position (in a clearly demarcated status hierarchy) of the
court from which it issued, the authority of a case as a decision on the immediate
conflict at issue depends on its “procedural history.” By the time a case has reached
an appellate court, it has been shaped by the procedures of the trial court below
and by the procedures invoked during the appeal, so that there is a strong semiotic
framing of the issues to which an appellate court may speak. Issues not raised at
trial or on appeal may generally not be addressed by an appellate court, and the
appellate court may not rule on issues that would be raised by a different factual
situation. When the text of an appellate court opinion addresses such out-of-
bounds issues, that part of the opinion is called “dictum” and is deemed not au-
thoritative or binding. Only that part of the opinion that speaks to issues “properly
before the court” is thought to be authoritative; this part is called the “holding” of
the case. Of course, the distinction between holding and dictum opens a great deal
of room for semiotic maneuvering of various kinds. A crucial part of reading legal
opinions, then, if one wishes to understand them as socially powerful texts, is dis-
cerning the frame that is imposed by prior oral and written contextualizations of
the same conflict in courts below and by the semiotic frame imposed by the liti-
gants as they chose particular issues to appeal. Once again, the dictates of a legal
reading provide limits to the social power of any particular case law text, building
a careful consideration of layers of legal and textual authority into the core read-
ing habits of legal professionals.