Learning to Read Like a Lawyer 61ing of layers of legal authority, focused in large part on the question of who gets to
decide what.
READING PRECEDENT
For example, in drawing on precedent, courts follow an interpretive doctrine known
as “stare decisis”:
To abide by, or adhere to, decided cases. Policy of courts to stand by precedent and
not to disturb settled point.... Under doctrine a deliberate or solemn decision of
court made after argument on question of law fairly arising in the case, and neces-
sary to its determination, is an authority, or binding precedent in the same court, or
in other courts of equal or lower rank in subsequent cases where the very point is again
in controversy.^46The precedential authority of a case text depends on the hierarchical position of
the court from which it issues as well as on the topic in question, so that on mat-
ters of federal law, U.S. Supreme Court opinions are deemed “binding” on lower
federal courts and all state courts. Conversely, on matters of state law, opinions
issued by the supreme courts of the individual states are viewed as authoritative.
Appellate courts at times explicitly overrule their own precedents, or they may
“limit” prior decisions by imposing narrow interpretations on precedential texts.
Of course, a case operates as precedent only when it is drawn on in subsequent
opinions.
To invoke precedent, authors of legal cases have to build analogies between
the case before them and earlier cases. There are several steps required to create
(or decipher) these analogies: one needs to identify which legal issue or issues are
at stake, to understand and use the technical legal concepts involved in analyzing
those issues, and to select particular “facts” that are relevant to the issue. Once these
facts are selected, it is possible to make analogies between them and the relevant
facts in previous cases. This deceptively simple-sounding set of tasks is at the heart
of the legal reading that many scholars have struggled to describe and dissect.
Note, then, that there is a legal story that must be told of the events in ques-
tion in order for this process of analogizing to proceed. However, the particular
aspects of those events (crystallized into facts) that form the core of a legal story
are quite different from the usual narrative that might be told by laypeople. As I
have indicated, the facts selected for a legal story are structured by the legal issues
at stake in this particular conflict. These issues in turn are defined by categories
generated from statutes or other similarly formalized rules, and/or (via precedent)
from earlier cases. Thus, for example, if we know from previous cases that courts
will deem a contract to be formed only if there is an “offer” and an “acceptance” of
the offer, we will look at previous cases to determine what sorts of words or ac-
tions counted as offers and acceptances, and then attempt to find similar words or
actions in the case at hand. Arguments as to whether a contract was formed will
then center on whether the words or actions in this case were analogous to those
in previous cases, with opposing parties arguing for and against. At times, it may
be that there isn’t really much of an issue on this point. Perhaps it is quite clear