60 Similarity
of course, many interesting variations and differences in the legal tradition regarding
how to approach particular kinds of legal texts, there are also points of common-
ality, discernable across the classrooms of this study. I discuss different kinds of
legal texts as “genres,” meaning that there are distinctive aspects of the texts that
identify them as cases, statutes, regulations, and so on, just as we might distinguish
between a short story and a novel. There are also somewhat different norms and
frameworks guiding legal readings of these distinct genres.
One feature of first-year legal education that is immediately apparent is a focus
on case law, on the written opinions that courts produce to explain the results
reached in individual legal cases. Much of the first year in U.S. law schools con-
centrates on reading cases, as did most of the discussion in the classes of this study.
The textbooks assigned for typical law school classes are called casebooks and con-
sist for the most part of a series of edited appellate court opinions, interspersed
with excerpts from relevant statutes, academic articles, and other pertinent mate-
rials. Because learning to decipher the cases in many instances calls for an under-
standing of relevant constitutional provisions, statutes, or regulations, an adequate
understanding of the case law genre often requires proficiency in other genres as
well. If we analyze the opinions reproduced in law school casebooks as instances
of a genre, we can begin to trace the outlines of an ideology of text and language
that is quite different from the textualism and schooled literacy found in other
arenas of U.S. culture.^43
The Process of Reading Cases
Each written case law text reports a decision by the authoring court, a determina-
tion as to the outcome of a conflict on which that court has been asked to rule.
Thus, these legal texts have a peculiar character. In one sense, they report on a
decision made by the judge or judges, but at the same time the texts themselves
actuallyare the decisions: the words of the texts constitute or “perform” the deci-
sions. Philosophers and linguists have talked about this kind of language as
“performative”: it performs or enacts the action that it names.^44 For example, when
an official vested with the appropriate authority utters the words “I now pronounce
you man and wife,” she not only describes what she is doing (marrying two people)
but also actually performs that act. Similarly, the written text that describes a court’s
disposition of a legal case also performs the act of deciding that case. Thus, the
language in legal texts can be said to carry social power.
Legal readings of these case law texts are carefully structured around decipher-
ing this powerful language, which decides often hotly contested social conflicts.^45
We have already encountered two key aspects of the case law genre: (a) cases in-
voke legal precedent to justify their decisions; that is, they rely on language from
previously decided cases; and (b) a case law text typically points to the procedural
history of the legal case in question. We will now explore how these two features of
case law texts are intertwined with other distinctive facets that, together, define the
genre. As we will see, the structure for legal reading created by this case law genre
attempts to limit and shape the socially powerful implications of textual language.
One constant feature of this limiting structure is a continual invocation or index-