With the law school Fall semester just a few weeks away, I thought I would mention once again my short article, How to Read a Legal Opinion: A Guide for New Law Students.
I’ve received several requests in the last week from law professors seeking permission to reprint the article and distribute it to students. There’s no need to ask, actually: Thanks to its Creative Commons license, the article can be freely distributed for all non-commercial purposes. So law professors and legal writing instructors are welcome to distribute it to incoming students (and I’d be delighted if they do).
mattc says:
i am going to write on “why not to follow lawyers who have never been in private practice”
July 30, 2010, 3:09 pmFredosaurus Rex Friday XIII says:
Procedural posture: Overrated in law school, underrated in real life.
July 30, 2010, 3:15 pmOrin Kerr says:
Matt, I don’t follow.
July 30, 2010, 3:16 pmfrankcross says:
See, I knew not to ask
July 30, 2010, 3:17 pmJonathan H. Adler says:
This is great stuff. I assign it in all of my doctrinal classes. Highly recommended.
JHA
July 30, 2010, 3:23 pmmattc says:
i didn’t mean anything by it other than the fact that i rarely if ever have found a judge that follows other cases without first considering who opposing counsel is, how the court ruled on other issues in the case, whether the court ruled for or against counsel in another case the prior week, whether the parties are corp or individual, whether the ruling will create more of less work, who may or may not have donated to the previous campaign, etc.
i usually hope and prepare for a good record on appeal, but at the trial court level, i don’t find that cases matter that much.
July 30, 2010, 3:44 pmDr. Weevil says:
For a non-lawyer, the best thing at the link to the paper is in the little box on the right side labeled “People who downloaded this paper also downloaded”. The third paper listed there (as of this writing – it may of course change) is titled simply “Fuck”, by Christopher Fairman.
Actually, that may be only the second-best thing I found following Orin’s link. The best is that where his paper has 4 footnotes, Fairman’s has 410. Filth and pedantry: a winning combination. (Perhaps I’m prejudiced: I’ve published papers on some of the filthier passages of Roman satire.)
July 30, 2010, 4:03 pmTodd Klimson says:
Great peice you wrote Mr. Kerr. Also, I would highly recommend Mr. Volokhs’ “Academic Legal writing.” My copy is so worn out. How to Read a Legal Opinion: A Guide for New Law Students is a must read.
July 30, 2010, 4:48 pmHelen Knowles says:
In my experience, the article also works really well for undergraduate constitutional law students.
July 30, 2010, 5:31 pmOrin Kerr says:
Thanks, Helen. By the way, I enjoyed your book on Justice Kennedy; I thought your thesis was largely right.
July 30, 2010, 5:34 pmJoseph S says:
As an English law student, it’s probably worth me saying that a lot of this is well worth reading for other common law systems too, even if some terminology and some other points are less relevant (for example, English judges will often EACH give their own judgment on a case – in a really important case from the House of Lords, that can be 7 or 9 different judgments).
An excellent book that I read before starting was “Letters to a Law Student”, by Nick McBride (who later lectured me for some of tort). If there isn’t a US version already, someone should write one.
Something that’s always baffled me is why US law reports never seem to contain summaries of counsel’s submissions. I understand that US law is far more written than English, where oral submissions on appeal can go on for days, but it’s always struck me as something that should be there on the record.
July 30, 2010, 6:15 pmElliot says:
I’m neither law student nor lawyer, but I do read cases simply to find out what the courts really said.
This is an excellent article for anyone who has an interest in having an accurate understanding of what the courts are doing. It’s aimed at people who have never studied the law. That’s most of us. It needs wider circulation.
July 30, 2010, 6:58 pmjellis58 says:
Matt, I am currently a clerk at a state trial court (San Francisco County Superior Court) and have worked with a number of different judges here and your description of how trial court judges decide cases is not even remotely close to what’s been my experience. Every judge I know cares deeply about reaching the correct legal result in light of the CA constitution, statutes and precedents of the higher CA courts. They would be mortified if any of their colleagues used any of the criteria you mentioned in making decisions.
Your comment, which was apparently supposed to some sort of real world perspective, strikes me as surprisingly ignorant.
July 30, 2010, 8:10 pmOrenWithAnE says:
There is substantial dispute about what actually constitutes ‘non-commercial’ for the purpose of the CC-NC license. Just this last week, there was a dispute over whether a CC-NC licensed work could be used in a blog entry alongside paid advertisements. Similarly, the use of a CC-NC article in the course of a professor’s paid duties, for which the students have paid tuition, might also be considered sufficiently commercial to be outside the scope of the license.
In reality, of course, with OK’s explicit blessing there is absolutely nothing to worry about but the whole issue does raise some of the finer points of interpretation of contract law. The exact text:
is a pretty good example of how not to draft terms, IMHO.
July 30, 2010, 9:03 pmOrion says:
I continue to be baffled that anyone would go to law school without already knowing this stuff. Well written, readable article, though.
July 31, 2010, 1:05 amlessinsf says:
This article unfortunately reminded me of how ignorant (by which I mean unknowledgable) so many of my classmates were about the legal profession, and how uninformed their decision to go to law school was.
July 31, 2010, 4:10 amJustSomePatentAttorney says:
A number of us were students of patent law, with little to no prior exposure to the law. Most of us figured it out. Oddly enough, I was more shocked by my classmates who had limited exposure to anything but the law.
July 31, 2010, 9:41 amecdelauter says:
Thank you for posting this. One of my undergrad political science teachers assigned this reading at the beginning of the term whenever I had a law based class with her. I’m glad I can now quickly review it before I start my L1 classes in the fall.
July 31, 2010, 10:22 amepluribus says:
Good work, Orin. Your clear, no-nonsense writing reminds me why you are my favorite VC blogger.
July 31, 2010, 11:02 amepluribus says:
I continue to be baffled why anyone would assume that people know things before they learn them. I thought people went to school to learn things they didn’t already know.
July 31, 2010, 11:06 amOrion says:
Note that I never claimed that people should be legal experts before going to law school. I just think, given the wide availability of legal opinions and the fact that most of them are generally pretty readable these days, that people would want to read a few before going to law school and taking on six figures of debt. How could you possibly know you want to be a lawyer if you don’t know the first thing about the law?
I reiterate that I think the article is very helpful at highlighting things that incoming law school students should know — I’m just saying that in an ideal world, this would be review for 99% of students.
July 31, 2010, 11:55 ammariner says:
That is a good article. Thank you for pointing me to it.
July 31, 2010, 12:30 pmRonald C. Den Otter says:
Thanks, Orin. I just downloaded it and will distribute it to my students this fall. Now if I can only get them to read it! And I am being serious, by the way. Orin, if you expanded this piece, you could turn it into a short book that would probably sell quite well. It’s not as if most of the writing out there about this subject –other than _Getting to Maybe_, which is about how to take a law school exam– is first-rate.
Hey Helen, it’s Ron from the constitutional studies workshop in Santa Barbara last summer. I hope that you’re well. Are you going to make a prediction as to how Justice Kennedy will vote in Perry v. Schwartzenegger? It would seem that it will come down to his vote…
July 31, 2010, 2:13 pmFredosaurus Rex Friday XIII says:
A call to infinite recursion?
July 31, 2010, 4:04 pmCW Beeler says:
Well written and would be part of the ‘Dummies’ series for people like myself that have no personal knowledge of legal procedures or outcomes.
Reading your article in PDF format, 100% font size, on page 10 it’s written:
“Words like “reverse,” “remand,” and “vacate” means
that the higher court though the lower court had it wrong.”
I believe though should be thought. The wonders of speel checkers. Then never know what we mean.
July 31, 2010, 4:53 pmAJK says:
It should also be “mean”!
July 31, 2010, 6:13 pmOrin Kerr says:
Thanks for the edits, guys. Three+ years too late, as it turns out, but thanks anyway.
July 31, 2010, 6:45 pmChrisTS says:
This is great. I have my undergrad phil of law students read cases and do sort of mini-briefs on them. You cannot believe how they struggle.
July 31, 2010, 6:57 pm