The Language of Law School This page intentionally left blank

Transcript 4.16 [5/8/14]
Prof.:
So we’re talking about a time, thirty years later. Thirty years after the
fighters’ prime, thirty years after their prime, they meet. It’s unlikely
they’re going to fight thirty years later. I mean it’s unlikely that they’ll
move very easily. [[class laughter]] And in the case of modern boxers,
it’s the last- they can’t even talk, let alone fight [[class laughter]], at this
point in their careers. Now, what’s going on here, why does it take
thirty years for Dempsey to meet Wills? Now there are all kinds of
overtones, racial and otherwise in this case. But I think there’s a pretty
simple explanation for why Dempsey doesn’t want to fight Wills. And I
don’t think- I could be wrong about this- that it has anything to do
with matters of race. I think it’s a bit simpler than that. Take a wild
guess, Ms. U.
Ms. U.:
He was afraid to lose?
Prof.:
He was afraid that he was going to get maimed by Wills, the “Brown
Bomber” who was probably the greatest boxer of the world, indeed of the
universe at that point, and Dempsey wants to stay away from him, okay?
Now there are a lot of people who want to try to get him to fight Wills,
but there is, alas, a problem with the color bar in a lot of places and there
are a lot of promoters who won’t touch that fight and there are a lot of
people who are worried about the future of the sport. 
[ . . . ] 
my guess is
he’s worried about losing the battle. And maybe he finally realizes that
that’s what’s going to happen. He signs the contract and he tries to back
out. Now what do you do with the fact that he’s backed out of this
contract?
[This question marks the transition to the core case analysis, and
the remainder of the discussion centers on issues of contract breach and legal
remedies]
Here one aspect of social context—racial prejudice—is touched on briefly, and then
we are told an alternative story centered on strategic concerns, on a fear of losing.
Note that there is no careful weighing of the evidence supporting this story, nor is
there a basis in the text for these speculations. Rather, the epistemological founda-
tion for this discussion lies in common sense, a cultural logic shared by the speak-
ers. If we know that one fighter backed out of a fight, and we are told that he was
probably a weaker fighter, then it makes sense that he may have backed out to avoid
losing. The relative honor and shame entailed in backing out as opposed to losing,
common understandings of human motivation, the primacy of strategic concerns—
these are the kinds of warrants on which this speculative attribution of motive rests.
In sum, there are rich data in the discussions of policy. They alone could form
the basis of an entire volume, which could trace the cultural logics and assump-
tions underlying such conversations about policy and society while also noting how
and when they flirt with legal analysis. In these policy discussions, we find tales
about human motivation, about trust and trickery, about poverty and free will.
Grand stories are told about the role of markets in ordering societies, about com-

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Learning to Read Like a Lawyer
79
peting visions of justice, and more. These broadly painted backgrounds surround
the nitty-gritty dissection of fact, law, and procedure with which law students and
their professors are centrally occupied. They add humanity, humor, and purpose
to an otherwise highly technical, removed discourse. However, they stand in marked
contrast to the central legal discussion, marginal not only in terms of discursive
structure, but also because these policy discussions never impart any real analytic
standards for assessing one story against another. (Arguably, one would need to
teach some form of social science to accomplish this.) When social context comes
in the door, structure, standards, and rigor exit.
Policing the Boundaries: Ordering Legal Narratives
At the same time as students are learning to read case law texts in terms of these new
categories, they must also absorb the proper deployment of the categories. Profes-
sors repeatedly remind students to keep different components separate, instructing
them in the conventions surrounding correctly structured legal narratives. This proper
structuring, in contrast to conventions ordering some other genres, does not always
require a set order of components. Indeed, as we will see, it is at times necessary to
mix components or blur boundaries to create an integrated legal reading. But first it
is important to understand where the lines are drawn: which components cannot be
put in front of or mixed with others, which parts of the story must be in place before
certain conclusions can be discussed or drawn.
For example, in the following excerpt, a professor interrupts a student in the
act of mixing fact-recitation with legal argument:
Transcript 4.17 [1/9/23]
Student:
But in any case, before the Board made the ultimate decision to accept
her resignation or not, she goes on to argue // that //
Prof.:
// See // but what you’re
doing is you’re just jumping ahead here. You’re stealing the knockout
punch. You’ve got to wait. But it’s okay. Let’s work with this. Okay, all
right. So the next thing that happens is you’ve got this school reacting
by having her thrown off and kept off the property? Is that right?
Here the professor wants to make sure that the student has laid out all of the im-
portant facts of the case before moving on to consider the legal arguments devel-
oped from those facts. Certain factual details need to be in place for these arguments
to be comprehensible; therefore, it will not work to move too quickly to the punch
line.
This theme can be seen even more clearly in the following excerpt, in which a
professor overtly instructs a student on the art of legal storytelling:
Transcript 4.18 [6/4/1–2]
Prof.:
Okay. Why don’t you tell us the story of 
Mills v. Wyman
.
Student:
Sure. Uh, in this case, Levi Wyman is () years old and long emancipated
from his family, returned from a sea trip and took ill, the plaintiff in
this case () Mills took Levi in and cared for him until his death on

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80
Similarity
February 20, 1821. The defendant wrote a letter to the plaintiff on
February //() //
Prof.:
// Wait // now, who is the defendant?
Student:
The defendant in this case is Levi Wyman’s father. He wrote a letter to
the plaintiff on February 24th of the same year after all these charges
had been incurred for taking care of this man’s son, promising that he
would pay all expenses related to such care. No consideration was given
for the promise // () //
Prof.:
// Well // now wait a second. When you’re stating the
facts you don’t want to be using- you want to minimize your legal
conclusions. So in the facts, instead of saying “no consideration was
given for the promise,” what might you say instead?
Student:
Well the uh--
Prof.:
--I mean that, the consideration aspect would be more
appropriate in your holding, or your issue, or your analysis.
The professor interrupts the student twice in this passage: once to seek a clarifica-
tion while also ensuring that the story was told in the right order (clarifying who
the defendant was before moving on to describe what he did), and a second time
to stop the student from mixing legal conclusions with recitation of facts. Although
the selection of relevant facts is highly dependent on the legal categories to be used,
the professor wants the student to strongly separate the recitation of facts from overt
legal analysis. Application of the technical word “consideration” by definition
moves the discussion into legal conclusions, which the professor wishes to avoid
before the facts have been thoroughly reviewed.
Aside from the need to have all the requisite facts before proceeding to legal
analysis, there is another message conveyed by this careful boundary maintenance.
By placing the factual storytelling first, both teachers (in class) and judges (in written
opinions) create a structure that contains a metalinguistic signal. “Before we come
to any conclusions,” we are told, “let us (both readers and the courts writing the
opinions) carefully review what happened in a dispassionate manner.” The bound-
ary maintenance between statements of facts and legal conclusions permits the
classroom discourse (or written legal text) itself to send a signal about law’s im-