The Language of Law School This page intentionally left blank

Clarifying the Law
As we have seen, the law is taught not only through explicit discussion, but also in
the selection and recounting of facts and in instruction as to applying facts to law.
Indeed, a great deal of learning is through examples, analogies, hypotheticals, and
other kinds of applications. This is necessary because the legal categories them-
selves rely on application to specific situations for their (often shifting) definitions:
Levi’s process “in which the classification changes as the classification is made.”
At times, however, professors or students will exit the process of application in order
to explicitly discuss the legal tests that are being distilled from class discussions,
generally with the goal of clarifying potentially confusing points.
Transcript 4.14 [8/40/1–2]: SPECIFIC PERFORMANCE
Prof.:
All right. All right, yesterday- yesterday we were talking about
specific performance and the 
American Brands
 case and if you notice
the standard, that the person has to satisfy, is that there is something
unique, right, non-fungible, something unique, () all right. 
[ . . . ]
 Do
notice something, the uniqueness test is still there in the Restate-
ment, if you- and you should have read that- and in the UCC 
[part of
3.20 turn omitted: mini-lecture on specific performance, professor then
raises question about phrasing in the UCC]
 But it goes on to say there
is one class of cases for which it really should be the preferred
remedy. Anyone read it, the note? There’s one classic- yeah?
Student:
Wait a minute, there’s one class where you said specific performance
remedy?
Prof.:
Yeah.
Student:
When it’s- uh (.) when substitute goods aren’t available--
Prof.:
--are not
available,okay, and what’s the phrase before “the substitute goods are
not available”? Notice we have a presumption usually that markets
substitute goods.

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Learning to Read Like a Lawyer
75
Conceivably if you really have to go out there and prove scarcity,
which starts, though, trying to look like what? Real scarcity.
Class:
(.03 turn)
 [multiple students speaking, individual utterances inaudible]
Prof.:
–sort of uniqueness. A slightly broader definition of uniqueness, all
right. () be my mother’s diamond ring, it can be very rare potatoes,
but– all right. But what else, what other class of cases?
Student:
Damages aren’t compensatory? Or --
Student #2:
--right.
Prof.:
All right, where damages aren’t compensatory, but I guess if you look
at the phrase before, it suggests: outputs in requirements contracts.
Remember when we did them?
Here the professor summarizes across various textual sources, pulling out and
explaining key defining legal points that constitute part of the doctrine of specific
performance.
In these kinds of exchanges, professors make visible a logic uniting lines of
cases that have been read by the students. As in this example, teachers also draw
on sources in which legal principles are explicitly enunciated, most notably the
Restatement and the Uniform Commercial Code, but also various state and fed-
eral statutes or regulations, and so forth. At these moments, sometimes involving
mini-lectures, the professors step back from detailed dissection of individual cases
to point out a thread that runs through disparate cases, examples, and hypotheticals.
In the process of explaining legal doctrines, professors are also highlighting for
students the specific issues on which nit-picking factual analogies or distinctions
will have to rest. The resulting outline lays bare the backbone of legal structure that
is organizing factual comparisons, and it is a structure centered on legal authority,
using legal texts as the key filters of that authority.