Describing how legal reasoning is distinctive is no easy task, but my former colleague from Wisconsin, Beth Mertz, does a wonderful job of it in this passage of her new book (read slowly to get every drop):

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, determinist 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 language used in that precedential case.  What a case means emerges only as it is interpreted 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 recontextualized 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 “uncertain.” James Boyd White similarly defines legal reasoning as “and organized and systematic process of conversation by which our words get and change their meaning.” 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 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 attorney 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.

Elizabeth Mertz, The Language of Law School 63 (2007)

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