74 Similarity
the law has “jiggled” with the general principle in order to prevent injustice. Use
of hypotheticals can in essence provide the students with a speeded-up process
of legal reasoning which, in actual court cases, might take years; the courts must
wait for real life to vary the parameters, presenting them with situations in which
problematic (or unclear) aspects of legal principles are laid bare by the facts in
the case.
Thus, we see how complex and yet crucial this process of applying law to facts
(and facts to law) is to the semiotics of deciphering case law texts. Upon it depends
discerning the central import of legal decisions, textually packaged as holdings. It
also guides the central semiotic process through which analogies (and their close
relatives, hypotheticals) help to elucidate and create precedent, arching between
diverse written legal texts and social times to create a kind of continuity. Around
this linguistic backbone, the muscles and flesh of legal arguments and the social
issues they address can move fluidly while maintaining some form of structure.
Clarifying the Law
As we have seen, the law is taught not only through explicit discussion, but also in
the selection and recounting of facts and in instruction as to applying facts to law.
Indeed, a great deal of learning is through examples, analogies, hypotheticals, and
other kinds of applications. This is necessary because the legal categories them-
selves rely on application to specific situations for their (often shifting) definitions:
Levi’s process “in which the classification changes as the classification is made.”
At times, however, professors or students will exit the process of application in order
to explicitly discuss the legal tests that are being distilled from class discussions,
generally with the goal of clarifying potentially confusing points.
Transcript 4.14 [8/40/1–2]: SPECIFIC PERFORMANCEProf.: All right. All right, yesterday- yesterday we were talking about
specific performance and the American Brands case and if you notice
the standard, that the person has to satisfy, is that there is something
unique, right, non-fungible, something unique, () all right. [... ] Do
notice something, the uniqueness test is still there in the Restate-
ment, if you- and you should have read that- and in the UCC [part of
3.20 turn omitted: mini-lecture on specific performance, professor then
raises question about phrasing in the UCC] But it goes on to say there
is one class of cases for which it really should be the preferred
remedy. Anyone read it, the note? There’s one classic- yeah?
Student: Wait a minute, there’s one class where you said specific performance
remedy?
Prof.: Yeah.
Student: When it’s- uh (.) when substitute goods aren’t available--
Prof.: --are not
available,okay, and what’s the phrase before “the substitute goods are
not available”? Notice we have a presumption usually that markets
substitute goods.