The Language of Law School This page intentionally left blank

Legal Ideology through a Linguistic Filter:
Hierarchies of Legal and Textual Authority
We have seen a common thread that runs through these fundamental aspects of
case law texts and readings thereof. This thread involves a shared focus on hierar-
chies of legal and accompanying textual authority. Written texts are to be read
within a series of nested questions about the authority of various courts deciding
the case at issue, and also of the courts that authored precedents. At the same time,
there is more to this linguistic filter (or, more accurately, metalinguistic filter). If
we are to connect a current text with precedent, we must work with the language

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Learning to Read Like a Lawyer
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of this and previous cases, distilling legal tests and issues from previous texts to
guide our delineation of facts, carefully parsing descriptions of factual situations
to build analogies, cleaving holding from dictum through close analysis of the
authoring court’s words and authority. Layers of linguistic form and legal author-
ity are intertwined in this process, creating a kind of linguistic filter through which
a core legal worldview is conveyed.
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 What, then, is the worldview or ideology buried
in this approach to language, reading, and text?
First, where a textualist ideology regards the text as fixed, the U.S. case law
tradition depends on a conception of texts as subject to changing interpretation,
as fundamentally reconstitutable through the process of recontextualization in
subsequent cases. This is not to say that cases are not also given authoritative, de-
terminist readings. But the cultural constitution of cases as precedent has a double-
edged quality; subsequent interpretation at once creates the authoritative meaning
of a precedential case, and yet is constrained by the framing discourse of the lan-
guage used in that precedential case. What a case means emerges only as it is inter-
preted as precedent in subsequent cases. At the same time, because subsequent
discourse is constrained and framed by the terms of argument set up in precedential
cases, any subsequent authoritative interpretation relies in a fundamental way on
the authority of the prior text. In terms of meaning and authority, these legal texts
are mutually constitutive.
Thus, it is the very capability of a text to be reconstituted when it is recon-
textualized as precedent that makes it powerful in the textual tradition; case texts
are “fixed” and “refixed” in the continual process of ongoing legal opinion writing
and reading. A clear explanation of this process turns out to be oddly elusive. As
noted, Edward Levi provides a description in his astute analysis of this sort of legal
discourse: “The kind of reasoning involved in the legal process is one in which the
classification changes as the classification is made”; it is at once “certain” and “un-
certain.”
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 James Boyd White similarly defines legal reasoning as “an organized and
systematic process of conversation by which our words get and change their mean-
ing.”
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 An often invoked adage emerging from the ideology of law school teaching
is that there are no right answers to questions asked about case law in class. This is
somewhat puzzling, for observation of law school classroom exchanges makes clear
that at one level there are, if not right, then certainly wrong answers. But the “no
right answers” ideology is a response to the essentially contestable character of case
law texts; meanings may be refixed, new interpretations may be forged, and attor-
ney adversaries in practice will argue vastly different interpretations of the same
cases in efforts to harness powerful case law precedent for their purposes. Students
may give wrong answers when they fail to observe the canons for reading legal texts,
or fail to discern the limits to contestability. But to accept the notion that a legal
text is sufficiently fixed that it contains right answers is precisely to miss a key canon
for reading legal texts.
Embedded in the concept of precedent is also a reworking of temporality and
history. Casebooks present “lines” of precedent using cases from disparate times and
places; the principle of selection is the logic of precedent development. Thus, if a court
in one place extends a principle of liability beyond the point developed by a previ-
ous case, drawing on the reasoning of that previous case while also expanding in a

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new direction, the two cases will be brought together across time and place as part
of a developing line of precedent.
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 This approach collapses historical time and
social context in the service of a new legal framework whose organizing principle
is a genealogy of texts. Vast differences in the cultural meaning of particular kinds
of actions or items are elided and translated into a common legal language; a de-
fective coffee urn, mislabeled poison, a loaded gun, and defective hair wash be-
come analogous as “inherently dangerous” objects.
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 At the same time, a defective
carriage and a bursting lamp wind up in the “not-dangerous” category.
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 This legal
logic defies common everyday understandings, making partners of people and
objects that would ordinarily not be mentioned in the same conversation, let alone
sentence. They are brought together in a legal genealogy that binds plaintiffs, de-
fendants, and causes of action across time and space. This is another aspect of the
performative character of legal language: it creates new temporalities and contexts,
while translating and eliding others.
Legal approaches to textuality also depart from everyday understandings in
another way. We can recall that the broadly shared textualist approach to texts,
found elsewhere in U.S. education, views language as transparent, so that texts are
to be read for literal, referential meaning that is universally available. Here again
there is a sharp contrast with the case law tradition. It is perhaps not surprising to
find that much legal writing is characterized by the inaccessible expert language
found in many professions. But there is a more profound inaccessibility, for even
were all the technical vocabulary to be somehow transformed into more accessible
language, the meaning for which lawyers read the text would remain elusive to those
reading for referential content. A legal reading of case law focuses rather on the
metapragmatic structure of the text, in which lies the key to its authority. This
metapragmatic structure is (at least) twofold, indexing both the context of prior
cases in the textual tradition (now reanimated as precedent for this particular case),
and the procedural context of this particular case in its prior transformations.
To train students in this new kind of reading, as we have seen, law school class-
room discourse undermines a standard referentialist approach to text. Instead,
professors introduce students to a new legal storytelling, in which the landscape is
defined by other legal texts and by legal warrants for textual authority. In Chapter
6 we will explore further how the people and social contexts in this legal landscape
are defined. In this chapter and the next we focus on the overall structure of these
legal narratives and on the ways that this structure is taught to students.
A Shared Message: Constructing Legal
Accounts of Conflict from the Inside
We have unpacked the structure of the case law genre from the vantage of
metalinguistic warrants and structure, from categories that are external to a legal
worldview. Let us now approach the genre from a slightly different vantage, view-
ing the ordering of case law narratives as they are unfolded in law school classes,
using categories internal to a legal worldview. We will explore the logic of the case
law structure outlined in previous sections, but as it is enacted in classroom reci-

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tations. Although the classes diverge in style, there are some striking commonali-
ties among them, much as English teachers might instruct their students about
English grammar in a variety of ways, but still be imparting some basically identi-
cal messages regarding language structure.
Most of the professors’ turns in the classrooms of this study can be character-
ized as falling into one (or several) of the following indigenous categories: (a) clari-
fying facts; (b) applying legal principles to facts, which entails identifying the legal
issues raised by the case and linking them to particulars of the case; (c) clarifying
law, from doctrine to technical terms; (d) parsing the effects of legal procedure;
and (e) discussing policy or social implications of legal decisions, including con-
sideration of strategic concerns. These aspects of a case law reading, found in all of
the classrooms, are classic components of the genre as it is understood “from the
inside” and thus become core organizing principles. In addition, some turns could
be described as giving general clarifications and comments (this includes explana-
tions of the conventions behind a legal reading of texts, warnings regarding the
realities of legal practice, discussions of class or law school requirements, and, in-
terestingly, discussions of social and emotional contexts).
Several additional features are worth mentioning. First, we find frequent deploy-
ment of hypothetical examples at various points in classroom discussion. Hypo-
theticals can be used to push students toward further clarity in applying law to facts,
or toward better articulation of legal principles, or toward sharper delineation of
competing policy or social interests. Second (and this is discussed in detail in Chap-
ter 6), most of the professors make use of role-playing to locate students as charac-
ters within the new legal landscapes and narratives created by legal texts and readings.
Another feature that is delineated further in Chapter 6 is the simultaneous mention
and marginalization of social contexts, moral considerations, and emotionality. Fi-
nally, sprinkled throughout all portions of the discussion are speculations as to strategy
and motive: the judges’ motives for ruling as they do, the litigants’ motives for be-
having or arguing as they do, the lawyers’ motives for pitching the arguments they
make in particular ways. These speculations further highlight the sense of legal nar-
ratives as contingent on power and metalinguistic maneuvering.
Quite frequently, class discussions of a case began with a recitation of the facts,
during which students were called on to select and correctly recount those details
of the events in question most pertinent to the legal issues raised in the case. Reci-
tations of facts thus often merged into applications of law to facts, as professors
guided students to select the particular details required by legal tests. Once the facts
had been clearly enunciated, professors frequently moved onto legal analysis, ask-
ing students to state explicitly the connections between particular facts and the
requirements of legal tests. If procedural issues affected which issues could be raised
and therefore which facts were pertinent, they would also be addressed at some
point in the discussion. (A number of professors began case discussions by stress-
ing procedural issues to a greater degree early in the semester, when students were
still learning to parse procedure in legal texts.) Professors also asked students to
spell out the legal tests, which commonly required students to repeat particular
words and phrases distilled from their readings of this or prior cases. At times, it
would be necessary for professors to pause over this task, reminding students of

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the structure of the test, which might have several prongs or parts. Finally, discus-
sion would typically move to consideration of the social or policy implications of
the legal approach taken by the court. An alternative structure found in some of
the classes began with a recitation of the arguments for the plaintiff and defendant,
which requires application of facts to law. This discussion would be interspersed
with a careful delineation of the facts, further discussion applying facts to law, clari-
fications of the law, and discussions of social policy. Interestingly, these orderings
found in classroom discussion can also be discerned in the structure of case law
texts themselves, which often (but not invariably) begin with a recitation of facts
and then move on to legal analysis and finally policy discussions.
As is apparent from this description of typical structures of classroom recita-
tions, there was frequent blurring of boundaries. For example, a short policy dis-
cussion might arise during applications of fact to law, or clarification of a particular
legal test might briefly interrupt a statement of the facts. At some points, profes-
sors would encourage this boundary blurring to point out the interconnectedness
of all of these aspects of a legal reading. By contrast, at other points, professors would
carefully police the boundaries, to make sure that students understood important
distinctions. In addition, this typical structuring of classroom discussion was at
times interspersed with humorous asides, comments about class or law school re-
quirements, consideration of social or emotional contexts, and so forth, although
these kinds of comments were peripheral both in terms of qualitative features (pro-
fessors marking these comments as marginal through the content of what they said)
and quantity (they were a small percentage of total turns). In the discussion below,
we explore in more depth each of the main content-based categories for law school
discussions outlined earlier, as well as examining examples of both blurred bound-
aries and carefully drawn distinctions among these categories.