62 Similarity
that there was an offer and acceptance, and the only really arguable point is whether
the contract thereby formed was breached, or broken. Part of what students must
learn is when to fight over an issue, and when to concede: when is there a debat-
able point over analogies, and when is it a waste of time? This is a very important
part of their training, for attorneys who pursue frivolous issues can in extreme cases
actually be formally sanctioned. (A more common disincentive is that frivolous
arguments waste valuable space in briefs, in addition to trying the presiding judge’s
patience.)
READING PROCEDURE
We have discussed one kind of framework for reading cases, that of the textual
context provided by precedent.^47 We now turn to examine the framework provided
by the procedural history of a case.^48 Just as the authority of a case as precedent is
in part a function of the position (in a clearly demarcated status hierarchy) of the
court from which it issued, the authority of a case as a decision on the immediate
conflict at issue depends on its “procedural history.” By the time a case has reached
an appellate court, it has been shaped by the procedures of the trial court below
and by the procedures invoked during the appeal, so that there is a strong semiotic
framing of the issues to which an appellate court may speak. Issues not raised at
trial or on appeal may generally not be addressed by an appellate court, and the
appellate court may not rule on issues that would be raised by a different factual
situation. When the text of an appellate court opinion addresses such out-of-
bounds issues, that part of the opinion is called “dictum” and is deemed not au-
thoritative or binding. Only that part of the opinion that speaks to issues “properly
before the court” is thought to be authoritative; this part is called the “holding” of
the case. Of course, the distinction between holding and dictum opens a great deal
of room for semiotic maneuvering of various kinds. A crucial part of reading legal
opinions, then, if one wishes to understand them as socially powerful texts, is dis-
cerning the frame that is imposed by prior oral and written contextualizations of
the same conflict in courts below and by the semiotic frame imposed by the liti-
gants as they chose particular issues to appeal. Once again, the dictates of a legal
reading provide limits to the social power of any particular case law text, building
a careful consideration of layers of legal and textual authority into the core read-
ing habits of legal professionals.
Legal Ideology through a Linguistic Filter:
Hierarchies of Legal and Textual Authority
We have seen a common thread that runs through these fundamental aspects of
case law texts and readings thereof. This thread involves a shared focus on hierar-
chies of legal and accompanying textual authority. Written texts are to be read
within a series of nested questions about the authority of various courts deciding
the case at issue, and also of the courts that authored precedents. At the same time,
there is more to this linguistic filter (or, more accurately, metalinguistic filter). If
we are to connect a current text with precedent, we must work with the language