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.
Transcript 4.20 [8/40/6]Prof.: Well, that’s one side of it, and the other side of it is the one that says
“No, we won’t uphold it, because it’s not fair”- what kind of argument?
Student: Unconscionability.
Prof.: It’s an unconscionability-style argument [... ]In a sense, these kinds of doctrines test students’ ability to develop a keen sense of
boundary deployment: they bring policy arguments right into the heart of doctri-
nal categories. And yet, students must still remember that the measure of whether
a contract is unfair enough to merit unconscionability status is not their own sense
of outrage, or that of an average person on the street. Even here, it is necessary to
look to prior legal decisions and patiently work out legally permissible analogies
or distinctions. Thus, a full legal reading of text involves constant calculations re-
garding the boundaries between fact telling and legal application, between expli-
cation of law or procedure and policy discussions—at times clearly distinct from
one another, yet at others wound together to form a complete legal narrative.
Summary
We have now reviewed two different vantages on the structure of a legal reading.
From the perspective of anthropological linguistics, we have seen the crucial role
of a peculiarly legal metalinguistic structuring in shaping how students are trained
to read written legal texts. From an internal vantage, we have seen how indigenous
metalinguistic categories function to organize written legal texts and readings
thereof. Throughout it is clear that this complicated structure continually reinforces
a focus on legal warrants and layers of authority, translated generally through the
lens of a characteristic textual analysis. To be sure, there is also an exciting open-
ness invited at the edges of this legal reading of text, one in which all kinds of so-
cial and moral considerations can be imagined, stories of all sorts can be told,
virtually any experience or event can be made relevant to some kind of legal ques-
tion or test. This sense of drama is heightened by role-play in class, with professor
and students standing in the shoes (or, more accurately, speaking in the voices) of
players on the legal stage.