66 Similarity
the structure of the test, which might have several prongs or parts. Finally, discus-
sion would typically move to consideration of the social or policy implications of
the legal approach taken by the court. An alternative structure found in some of
the classes began with a recitation of the arguments for the plaintiff and defendant,
which requires application of facts to law. This discussion would be interspersed
with a careful delineation of the facts, further discussion applying facts to law, clari-
fications of the law, and discussions of social policy. Interestingly, these orderings
found in classroom discussion can also be discerned in the structure of case law
texts themselves, which often (but not invariably) begin with a recitation of facts
and then move on to legal analysis and finally policy discussions.
As is apparent from this description of typical structures of classroom recita-
tions, there was frequent blurring of boundaries. For example, a short policy dis-
cussion might arise during applications of fact to law, or clarification of a particular
legal test might briefly interrupt a statement of the facts. At some points, profes-
sors would encourage this boundary blurring to point out the interconnectedness
of all of these aspects of a legal reading. By contrast, at other points, professors would
carefully police the boundaries, to make sure that students understood important
distinctions. In addition, this typical structuring of classroom discussion was at
times interspersed with humorous asides, comments about class or law school re-
quirements, consideration of social or emotional contexts, and so forth, although
these kinds of comments were peripheral both in terms of qualitative features (pro-
fessors marking these comments as marginal through the content of what they said)
and quantity (they were a small percentage of total turns). In the discussion below,
we explore in more depth each of the main content-based categories for law school
discussions outlined earlier, as well as examining examples of both blurred bound-
aries and carefully drawn distinctions among these categories.
Just the Facts, Please
One crucial aspect of a legal reading, taught in all of the classrooms of this study,
is the selection of facts to create a new, legal narrative of the conflict at the heart of
the case. The word “facts” itself is an indication of the new legal framing: the judges
who write legal opinions will accept particular versions of what actually occurred
in the case, depending on the procedural stance of the case. If, for example, the
person being sued (the defendant) files a motion to dismiss the case before it has
actually gone to trial, then the question for the court is whether, under any ver-
sion, there is actually a “live” legal issue. Thus, in such cases, the court is supposed
to accept the version of the case that is most favorable to the person bringing the
legal action (the plaintiff). The statement of facts in an appellate opinion in such
cases, then, is not supposed to be a rendition that can be certified as factual in the
usual sense. Rather, the legal story told in such cases is a collection of the plaintiff ’s
allegations that, taken together, would give him or her the best shot at making a
supportable legal claim.
Correct readings of such cases require a suspension of disbelief, an epistemo-
logical hedging that is quite different from the underpinnings of the “conflict sto-
ries” generally found outside of legal fora. When average speakers tell stories of