|
Transcript 4.10 [6/22/3]
Prof.:
You said it’s a form letter and that indicates it’s not an offer. Why not? Ed?
Ed:
I’d say it’s similar to the advertisement () more people could accept it than
there are numbers to pass out. So there’s only one property, and if it’s a
form letter more people could accept it, if it was an offer. So that makes it
unreasonable to think that is an offer.
Transcript 4.11 [8/20/15]
Student:
Well, I mean, I would say the biggest differentiation here between this
and the painting contract was the immediacy. I mean, if I made a threat
to you right now, then it’s probably much more likely to be enforced
than if I say, call you up on the phone and threaten you, I mean.
Notice that a similar parsing process is necessary to discern the holding of any
particular case; students must glean which legal principles are at issue, which facts
from previous cases were most pertinent, which facts in this case are most perti-
Learning to Read Like a Lawyer
73
nent, and exactly what the court has decided regarding the issue on these facts. (This
also requires them to push aside irrelevant issues and facts.) It is worth noting that
the fundamental semiotic choices as to what aspects of two events render them
analogous involve deeply cultural perspectives. These perspectives are not neutral
or given, but rather emerge from particular vantages. For example, people of dif-
ferent genders or social backgrounds might diverge considerably in how they in-
terpret threats or understand the implications of form letters. Yet these social and
cultural roots to analogizing are “naturalized,” hidden, rendered as natural and
therefore unproblematic, indeed invisible, in the form of this Anglo-American legal
reading.
Professors also teach this parsing process using hypothetical situations. These
hypotheticals can provide fine-grained exercises in analogizing.
Transcript 4.12 [3/22/7]
Student:
Umm, this other one says that it’s a real promise, that the father was
making up this case of the mortgage and that the deed was really just a
symbol of what he was actually going to do. And then when he died, he
didn’t um upkeep his promise, so that when he died the mortgage
wasn’t paid. So that, um, if he’s trying to protect his daughter, then he
didn’t keep up his end // of the promise //
Prof.:
// but, well // actually let me clarify, that
wouldn’t be enough. In other words, we will enforce promises against a
mistake. So, the fact that he died without completing the promise would
not be- would not be a factor in determining whether or not this is a
umm gift.
[ . . . ]
Um, so that that wouldn’t indicate the seriousness, or
not, uh, would it? I mean, what if he’d been struck by lightning? [[class
laughter]] Hit by a truck?
Transcript 4.13 [7/20/14]
Prof.:
[ . . . omit most of 1.51 min. turn . . . ]
Well, this, uh, you know, () have
hypothetical brief case, I like to use the hypothetical flagpole case. Uh,
what’s this thing? Here’s- here’s the conflict in the (). I promise to pay you
one hundred dollars if you climb to the top of the flagpole and touch the
golden eagle at the top, and you want a hundred dollars, and you start up
there and just, you know, when you’re at the top and you’re- when you’re
at the top and you’re- just as you’re reaching to touch the golden eagle I
yell at you, “I revoke!” [[class laughter (.04)]] And then laugh at you.
In this last example, the professor is varying the level to which someone has per-
formed before the person with whom she or he contracted revokes an offer. The
discussion begins with the general principle that when someone makes an offer—
in particular, an offer that can be accepted simply by doing something rather than
by saying something—then that person should in theory be able to revoke the offer
up until performance of the deed.
61
The clear-cut hypothetical proffered by the
professor highlights the case of revocation right at the instant before the deed is
complete, thus throwing into sharp relief the problem of the injustice that might
result. In the subsequent discussion, the professor then proceeds to explain how
74
Similarity
the law has “jiggled” with the general principle in order to prevent injustice. Use
of hypotheticals can in essence provide the students with a speeded-up process
of legal reasoning which, in actual court cases, might take years; the courts must
wait for real life to vary the parameters, presenting them with situations in which
problematic (or unclear) aspects of legal principles are laid bare by the facts in
the case.
Thus, we see how complex and yet crucial this process of applying law to facts
(and facts to law) is to the semiotics of deciphering case law texts. Upon it depends
discerning the central import of legal decisions, textually packaged as holdings. It
also guides the central semiotic process through which analogies (and their close
relatives, hypotheticals) help to elucidate and create precedent, arching between
diverse written legal texts and social times to create a kind of continuity. Around
this linguistic backbone, the muscles and flesh of legal arguments and the social
issues they address can move fluidly while maintaining some form of structure.
Do'stlaringiz bilan baham: |
