There's been an interesting discussion in regard to my posting about my "experiment" in using unedited judicial opinions in my classes; though there are lots of interesting questions raised, one in particular, from fellow-blogger Orin Kerr, requires a response. Orin wrote:
I don't think I understand the skill that is being taught. Is the skill how to read through a long document to find the relevant section? If so, is that really a skill that law schools need to teach? Students develop these skills whenever they read; if someone surfs the web or picks up a newspaper, the task of reading is partly the task of filtering through the irrelevant stuff to get to what the reader is looking for. Or so it seems to me.
It may be that law schools don't teach this skill specifically, and some lawyers can't do it well. But I would think that's because schools don't need to teach it, and the lawyers who can't do it probably can't be taught how to do it well.
I couldn't disagree more.
This characterization makes the skill sound trivial - "reading through a long document to find the relevant section." I suppose the skill I'm talking about can be characterized that way - but that's like saying that becoming a scientist is just "being able to sift through lots of irrelevant data to find the patterns." Yes, a critical part of becoming a lawyer is being able to read through a long document - and not any old long document, but a very particular kind of long document, a "judicial opinion" - to "find the relevant section," as you put it. And then, once you've found it, to figure out what the court is saying there and how it bears on whatever it is you're trying to figure out.
Pick any of the cases on my IP syllabus and summarize it for me in a paragraph or two - who won? what was the issue? how did the court resolve it? on what point are the dissenters and the majority disagreeing? were there any facts that were critical to the decision? how were prior cases on point distinguished? etc. I think good lawyers have to be able to do that - maybe not in two perfectly formed paragraphs, but at least in their heads. And they have to be able to do it, as the British say, "at pace" - really fast, one after another after another. Answering virtually any legal question of substance - how does "strict scrutiny" apply to a high school's dismissal of a student for having posted offensive passages on her myspace page? is a work prepared by an employee on his "break time" with materials furnished by his employer a "work for hire"? Is something that appears in a "private" space on the Internet a "printed publication" within the meaning of section 102 of the Patent Act? etc. etc. etc. - means reading lots and lots of cases and figuring out what they mean - whether they're relevant, how they're relevant, how the points they're making can be used in the argument you want to make (or can be used to make the opposing argument).
I'm pretty sure that you, Orin, are damned good at that - perhaps so good that you don't even see any more how difficult a task that is. I'm good at it, too. It is, most emphatically, not something that people just "develop whenever they read," as you suggest. Knowing how to skim through an article in the New York Times to "find the relevant sections" there will help, but it will not in and of itself tell you what the holding is in Arnstein v. Porter. When students walk in the door of any law school, they don't know the first thing about how to do it, and it would be entirely unreasonable for us to expect that they do.
That's the skill I was talking about.