The Language of Law School This page intentionally left blank

Parsing Procedure
We have already extensively discussed the crucial role of deciphering legal proce-
dure in shaping legal readings. Particularly during classes early in the semester, but
also at later points, professors repeatedly remind students of the crucial role of legal
procedure in delimiting the relevant facts and the application of law to those facts.
This is, again, a lesson in legal reading found throughout the classrooms of this
study.
Social and Policy Implications
In an interesting contrast with the emphasis on precision in other aspects of the
legal reading taught to law students, class discussions of cases also frequently in-
clude wide-ranging discussions of the possible social and policy implications of legal
doctrines. These discussions are at times peppered with speculation as to causa-
tion, strategy, and motives: the motives of legal decision makers when ruling (or
legislating) in particular ways, or of people subject to law when behaving in cer-
tain ways.

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76
Similarity
Transcript 4.15 [8/17/13]
Prof.:
Organs, all right, organ transplants and stuff. Now, you might or
might not agree with it and it might or might not happen, all right.
But there are- there’s at least some concept that there (is) some
things that are beyond the pale to be allocated through private
resources. (.03 pause) Well, is 
Batzakis
 that- or isn’t it, and should it-
(.03 pause) and what should the court do with it? Yeah?
Student #1:
See, I don’t see organ, like donating an organ for money as the same
thing as 
Batzakis
- like they’re in a war-torn country and the only way
for them to get the money is to give up an organ, in that sense I
could see them being similar. But if you’re a rational person living in
America and just one day decide you want to give up your organ, I
think that should be allowed more so than a situation where you
have no choice.
Student #2:
But the only reason people give up their organs is when they’re
under extreme duress, they’re so poverty-stricken that they say, “All
right, I’ll sacrifice one of my two kidneys to this person who’s much
richer and can afford to buy it because I need the money in order to
feed my kids.”
Prof.:
That’s the supply side of it, and what’s the problem with the demand
side of it, and by the way if you would say this is somewhat hypo-
critical because I don’t see the difference between this and milk, on
the demand side I’d say, “Yeah, I think we are drawing lines and
some of it does look very hypocritical, but we are drawing lines and
have to”- what?
In this example, as in many policy discussions, students and professor tell stories
to illustrate the possible moral and social underpinnings for the intricate legal
apparatus that forms the core of a legal reading.
There is an intriguing paradox to be found here. On the one hand, this kind
of free-ranging commentary on fairness would not be a correct move during the
actual parsing of a legal text, and that parsing forms the core of the classroom les-
sons. A correct legal reading requires strict submission to layers of legal authority
discernable in the text: the question is not what any reader thinks is fair, but what
the court says or what the law permits. (See excerpt from 1/7, in Chapter 1, pp. 9–
10.) However, after a text has been properly read, there is quite broad latitude for
consideration of possible social or moral implications. The degree of latitude here
contrasts interestingly with that in a social science discussion, in which it is likely
that professors would focus attention on the evidence required to support gener-
alizations as to the social class of organ donors. This focus would require parsing
of social science data and studies, in which there are stringent requirements for
demonstrating generalizations regarding social impacts. By contrast, law profes-
sors focus students’ attention on the kinds of evidence and proof required for legal
assertions. This focus requires deciphering of legal texts and layers of legal author-
ity and of the legally accepted facts formed by legal filters. When classroom dis-
course moves to consideration of social causes and impacts, a much more free-form

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Learning to Read Like a Lawyer
77
discussion occurs in law schools. Implicit in this movement is the sense that one
can discern social and moral implications through unraveling a cultural logic that
is obvious or transparent.
Thus, when law professors speak of policy considerations, a great deal is packed
into their conception of policy. In effect, the questions of whether law operates in
a just manner, whether certain legal decisions were motivated by class interests or
other extralegal concerns, whether particular social conditions caused or resulted
from specific legal decisions—all these are encompassed in the broad-ranging in-
quiry into policy. And in answering these questions, students do not need to con-
sult studies or other evidence, although professors may indeed throw in casual cites
to what “studies show” from time to time. Rather, students need to unravel cul-
tural logics through the telling of persuasive stories: of poor people who must sell
their organs, of judges or juries who may well have been racially biased in particu-
lar instances (or who may have been attempting to achieve certain social results
through their decisions). Most of this discussion is anecdotal or speculative, and
indeed lapses into the use of hypothetical storytelling at times. Not surprisingly,
one can also find this form of policy discussion in the explicit language of legal
opinions themselves—although in classroom discourse, reading for policy consid-
erations frequently requires moving beyond the explicit language of the text in an
attempt to intuit underlying motives and implications.
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 However, both in the le-
gal texts themselves and in policy discussions of those texts, this move to a broad
grab bag of social and moral considerations is a brilliant, if problematic, stroke.
Were the system of textual exegesis to remain mired at the tightly constructed sur-
face, it might lack the flexibility and openness needed to retain credibility. Instead,
this approach maintains a tight, technical center, but also permits an expansive
periphery of policy considerations. In this way, the legal reading taught in law school
classes at once closely limits the kinds of warrants permitted for legal conclusions
(to layers of legal-textual authority) and at the same time encompasses virtually
any kind of social data or issues deemed culturally relevant.
Furthermore, these broader policy discussions are often accompanied by
closely related speculative storytelling regarding the motivations of the people
who are players in the case being dissected. After all, if a person is motivated by
greed or racial hatred, it is possible that in ruling for or against him or her, a court
can be encouraging or discouraging such behavior. So, side by side with specu-
lations about the real underlying policy motivations for legal decisions, one can
find speculations about why people behaved as they did in the underlying dispute
(or in the tactics they pursued when bringing legal claims). These speculations can
also serve to sharpen students’ sensibilities in a number of other ways. First, they
alert the students to a loose realist idea that there is much going on beneath the
surface of a legal text—that it is important not to accept legal rulings at face value.
Second, they push students to be mindful of the strategic effects of proceeding in
one way or another when bringing legal cases. Third, they initiate students into an
unofficial genre of legal storytelling that is reportedly quite common in practice: the
cynical recounting of the so-called real motives for formal legal maneuvers.
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 Finally,
they continue the brilliant opening up of legal readings to virtually all kinds of cul-
tural stories about why things happen or what really mattered in an interaction—

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78
Similarity
without threatening the carefully disciplined core focus of legal translations, which
remains centered on textual authority and precedent.