80 Similarity
February 20, 1821. The defendant wrote a letter to the plaintiff on
February //() //
Prof.: // Wait // now, who is the defendant?
Student: The defendant in this case is Levi Wyman’s father. He wrote a letter to
the plaintiff on February 24th of the same year after all these charges
had been incurred for taking care of this man’s son, promising that he
would pay all expenses related to such care. No consideration was given
for the promise // () //
Prof.: // Well // now wait a second. When you’re stating the
facts you don’t want to be using- you want to minimize your legal
conclusions. So in the facts, instead of saying “no consideration was
given for the promise,” what might you say instead?
Student: Well the uh--
Prof.: --I mean that, the consideration aspect would be more
appropriate in your holding, or your issue, or your analysis.The professor interrupts the student twice in this passage: once to seek a clarifica-
tion while also ensuring that the story was told in the right order (clarifying who
the defendant was before moving on to describe what he did), and a second time
to stop the student from mixing legal conclusions with recitation of facts. Although
the selection of relevant facts is highly dependent on the legal categories to be used,
the professor wants the student to strongly separate the recitation of facts from overt
legal analysis. Application of the technical word “consideration” by definition
moves the discussion into legal conclusions, which the professor wishes to avoid
before the facts have been thoroughly reviewed.
Aside from the need to have all the requisite facts before proceeding to legal
analysis, there is another message conveyed by this careful boundary maintenance.
By placing the factual storytelling first, both teachers (in class) and judges (in written
opinions) create a structure that contains a metalinguistic signal. “Before we come
to any conclusions,” we are told, “let us (both readers and the courts writing the
opinions) carefully review what happened in a dispassionate manner.” The bound-
ary maintenance between statements of facts and legal conclusions permits the
classroom discourse (or written legal text) itself to send a signal about law’s im-
partiality and fairness.^64 The ways that law has already shaped the facts become less
visible, and the facts themselves take on a stronger epistemological status by virtue
of the wall dividing them from legal conclusions and assessments.
We have seen that there is a trick to telling legal stories: one cannot simply
jump ahead or mix different segments of the storytelling together. Understanding
acceptable orderings of the fact pattern, separating facts from law—an adequate
legal reading must respect these boundaries. At the same time, professors constantly
elide boundaries as well.
Putting the Pieces Together: Blurred and Distinct
Boundaries in an Integrated Legal Account
Throughout this discussion, we have seen a number of examples of blurred bound-
aries, where professors mixed recitation of facts with application of law to facts, or