Learning to Read Like a Lawyer 63of this and previous cases, distilling legal tests and issues from previous texts to
guide our delineation of facts, carefully parsing descriptions of factual situations
to build analogies, cleaving holding from dictum through close analysis of the
authoring court’s words and authority. Layers of linguistic form and legal author-
ity are intertwined in this process, creating a kind of linguistic filter through which
a core legal worldview is conveyed.^49 What, then, is the worldview or ideology buried
in this approach to language, reading, and text?
First, where a textualist ideology regards the text as fixed, the U.S. case law
tradition depends on a conception of texts as subject to changing interpretation,
as fundamentally reconstitutable through the process of recontextualization in
subsequent cases. This is not to say that cases are not also given authoritative, de-
terminist readings. But the cultural constitution of cases as precedent has a double-
edged quality; subsequent interpretation at once creates the authoritative meaning
of a precedential case, and yet is constrained by the framing discourse of the lan-
guage used in that precedential case. What a case means emerges only as it is inter-
preted as precedent in subsequent cases. At the same time, because subsequent
discourse is constrained and framed by the terms of argument set up in precedential
cases, any subsequent authoritative interpretation relies in a fundamental way on
the authority of the prior text. In terms of meaning and authority, these legal texts
are mutually constitutive.
Thus, it is the very capability of a text to be reconstituted when it is recon-
textualized as precedent that makes it powerful in the textual tradition; case texts
are “fixed” and “refixed” in the continual process of ongoing legal opinion writing
and reading. A clear explanation of this process turns out to be oddly elusive. As
noted, Edward Levi provides a description in his astute analysis of this sort of legal
discourse: “The kind of reasoning involved in the legal process is one in which the
classification changes as the classification is made”; it is at once “certain” and “un-
certain.”^50 James Boyd White similarly defines legal reasoning as “an organized and
systematic process of conversation by which our words get and change their mean-
ing.”^51 An often invoked adage emerging from the ideology of law school teaching
is that there are no right answers to questions asked about case law in class. This is
somewhat puzzling, for observation of law school classroom exchanges makes clear
that at one level there are, if not right, then certainly wrong answers. But the “no
right answers” ideology is a response to the essentially contestable character of case
law texts; meanings may be refixed, new interpretations may be forged, and attor-
ney adversaries in practice will argue vastly different interpretations of the same
cases in efforts to harness powerful case law precedent for their purposes. Students
may give wrong answers when they fail to observe the canons for reading legal texts,
or fail to discern the limits to contestability. But to accept the notion that a legal
text is sufficiently fixed that it contains right answers is precisely to miss a key canon
for reading legal texts.
Embedded in the concept of precedent is also a reworking of temporality and
history. Casebooks present “lines” of precedent using cases from disparate times and
places; the principle of selection is the logic of precedent development. Thus, if a court
in one place extends a principle of liability beyond the point developed by a previ-
ous case, drawing on the reasoning of that previous case while also expanding in a