Approach

Complementary techniques are used for the reading of the decision.

• • A close textual exegesis establishes the senses of critical term in the judgment and the relation between the senses established.
• • A classic legal technique of correlation of the senses and their relations with a real world and more objective correlative is then introduced. ‘So mechanical’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 362) in the judgment is correlated with an automatic computational process (both as theoretically understood in discussions of computability and as widely realized in contemporary everyday practice).
• • The argument is also expressed as a sequence of formally logical propositions. It is developed discursively and uses graphic support, with diagrams and tables. The logical propositions are not conceived as autonomous from the primary discourse and long inferential sequences within them, which would be characteristic of mathematics, are not employed.

These techniques are employed, in a cumulative manner, moving from exegesis to correlation and from discursive to formally logical presentation.

Two of the techniques adopted, of close textual exegesis and correlation, are well established in law. In relation to exegesis, advice to students of the law is that, ‘You have to read much more carefully’ (Kerr, 2005, p. 5). Correlation is also a classic legal mode of development (Holmes, 1881/1991), although the specific correlation made is entirely unprecedented.

In contrast, the deliberate translation into logical propositions, used here, is apparently antithetical to a significant view of the nature of the law. Oliver Wendell Holmes famously and influentially (Leiter, 2005; Stone, 2002) remarked,

The life of the law has not been logic: it has been experience.

(Holmes, 1881/1991, p. 1)

Logic, in this instance, is understood as involving ‘the syllogism’ and as treating the ‘law [which] embodies the story of a nation’s development through many centuries ... as if it contained only the axioms and corollaries of a book of mathematics’ (Holmes, 1881/ 1991, p. 1). The ‘official theory’, which is exposed as a partial fiction, is ‘that each new decision follows syllogistically from existing precedents’ (Holmes, 1881/1991, p. 35). A contrasting, and more positive understanding of logic as associated with rationality, opposed to more primitive ‘personifying metaphors’ (Holmes, 1881/1991, p. 383), coexists with the primary understanding of logic. However, logical method itself is endorsed for certain purposes and with certain limitations:

The business of the jurist is to make known the content of the law; that is, to work upon it from within, or logically, arranging and distributing it, in order, from is summum genus to its ínfima species, so far as practicable.

(Holmes, 1881/1991, p. 219)

Logic can, then, be used to give coherence and organization to experience.

Here, formal logic is used consistently with the reservations on its applicability to the law and with its contrasting endorsement. In accord with the priority given to experience, ordinary discourse and discursive expression is treated as primary; consistently with the endorsement of logic as a method for making known the content of the law from within, logical propositions are used to give clearer and more intelligible form to discursively expressed arguments.

The dependence of the reading only on deeply grounded and complementary techniques are indicative of the depth, simplicity, and potential wide acceptance of the argument.