Learning to Read Like a Lawyer
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application of law to facts with clarifications of law. Obviously, this takes some skill,
for an incorrect mixing of boundaries can cause readers
to miss the central mes-
sage of a case. However, when professors blur the boundaries, they teach their stu-
dents the interconnectedness of all these various facets of legal reading.
Transcript 4.19 [2/20/14]
Prof.:
This is an incredibly- this is, as you know [[class laughter]], ()
probably interesting area. Not only that, but very hard thoughts in
areas, in the real very intense struggle going on in our courts over
this issue. And not only in the courts, but in the legislature it’s a very
(high) issue. Okay. Well, still, I know
you know a whole lot about
employee-at-will. But- [[class laughter]] If you don’t say anything in
a contract for instance about employment at will, and you get into
some, sort of, relationship and I don’t say anything about the length
of the relationship. What do you assume?
Student:
That either party can get out of the contract at any time.
Prof.:
Right. Either party can get out of the contract, and can get out of the
arrangement at any time, be terminated at any time.
Just suppose I
say that (.) you have a job for the rest of your life if you come work
for me. What’s the relationship, what happens then?
Student:
Then you say- I’m not sure () how it would work out. That means it
would be vague, and it would be considered vague and ()-
Prof.:
Any takers on that? I say, “Come work with me, I’ll pay you. You
have a job for life. And I’ll pay you, you know, a certain amount
every year.” What’s the status of that?
Student #2:
It
seems like a definite time, I mean, there is a () about time. When a
person dies, () is over. When the person dies, his term is over and
that’s ()-
Prof.:
Any other takers on that? And it seems probably a perfectly logical,
in that as long as you live, you know, that definitely has a termina-
tion date unless you get too metaphysical about it. Um- [[class
laughter]] Any other comments on this issue? Yes? Way in the back.
Yes?
This excerpt exemplifies the way exegetical descriptions
of legal principles fre-
quently slide into and depend on application to particular fact situations, here using
hypothetical examples. The professor frames the hypotheticals using role-playing
and reported speech: “Just suppose I say that (.) you have a job for the rest of your
life if you come work for me.” As we will see in Chapter 6, these techniques have
the effect of placing the professor and student for a moment in the position of the
parties, as, for example,
in this transcript excerpt, where the classroom interlocu-
tors take the places of bargaining parties in a contract-formation scene. Legal prin-
ciples are enacted in dialogic discourse, in which there are two parties, two sides,
and numerous possible arguments and strategies and outcomes. As professors
and students in essence perform repeated dramas in class,
they enact and em-
body the intricate dance in which law constrains and shapes, yet also emanates
from, facts. These performances make vivid the complicated combination of
82
Similarity
boundary maintenance and boundary blurring required for a full legal reading, in
which all of the distinct aspects of a legal reading are at once fully respected but
also synthesized and brought together.
Similarly, discussions may merge a presentation of the arguments on each side
(applying facts to law as it explicates legal principles) with a discussion of the policy
arguments supporting each position. Some doctrines
almost require this kind of
merger, because they rely more explicitly than most on overt policy or fairness
rationales. One such doctrine is that of “unconscionability,” which permits the
courts to refuse to enforce contracts in which a person with grossly disproportionate
bargaining power has foisted manifestly unfair contractual provisions on the other
person.
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