Learning to Read Like a Lawyer 73nent, and exactly what the court has decided regarding the issue on these facts. (This
also requires them to push aside irrelevant issues and facts.) It is worth noting that
the fundamental semiotic choices as to what aspects of two events render them
analogous involve deeply cultural perspectives. These perspectives are not neutral
or given, but rather emerge from particular vantages. For example, people of dif-
ferent genders or social backgrounds might diverge considerably in how they in-
terpret threats or understand the implications of form letters. Yet these social and
cultural roots to analogizing are “naturalized,” hidden, rendered as natural and
therefore unproblematic, indeed invisible, in the form of this Anglo-American legal
reading.
Professors also teach this parsing process using hypothetical situations. These
hypotheticals can provide fine-grained exercises in analogizing.
Transcript 4.12 [3/22/7]Student: Umm, this other one says that it’s a real promise, that the father was
making up this case of the mortgage and that the deed was really just a
symbol of what he was actually going to do. And then when he died, he
didn’t um upkeep his promise, so that when he died the mortgage
wasn’t paid. So that, um, if he’s trying to protect his daughter, then he
didn’t keep up his end // of the promise //
Prof.: // but, well // actually let me clarify, that
wouldn’t be enough. In other words, we will enforce promises against a
mistake. So, the fact that he died without completing the promise would
not be- would not be a factor in determining whether or not this is a
umm gift. [... ] Um, so that that wouldn’t indicate the seriousness, or
not, uh, would it? I mean, what if he’d been struck by lightning? [[class
laughter]] Hit by a truck?Transcript 4.13 [7/20/14]Prof.: [... omit most of 1.51 min. turn... ] Well, this, uh, you know, () have
hypothetical brief case, I like to use the hypothetical flagpole case. Uh,
what’s this thing? Here’s- here’s the conflict in the (). I promise to pay you
one hundred dollars if you climb to the top of the flagpole and touch the
golden eagle at the top, and you want a hundred dollars, and you start up
there and just, you know, when you’re at the top and you’re- when you’re
at the top and you’re- just as you’re reaching to touch the golden eagle I
yell at you, “I revoke!” [[class laughter (.04)]] And then laugh at you.In this last example, the professor is varying the level to which someone has per-
formed before the person with whom she or he contracted revokes an offer. The
discussion begins with the general principle that when someone makes an offer—
in particular, an offer that can be accepted simply by doing something rather than
by saying something—then that person should in theory be able to revoke the offer
up until performance of the deed.^61 The clear-cut hypothetical proffered by the
professor highlights the case of revocation right at the instant before the deed is
complete, thus throwing into sharp relief the problem of the injustice that might
result. In the subsequent discussion, the professor then proceeds to explain how