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Kerr, How To Read A Legal Opinion (2007) (Lecture Notes) PDF

This document summarizes the key components of a legal opinion and what law students should learn when reading cases. It discusses the typical structure of a legal opinion, including the caption, case citation, author, facts, law, and concurring or dissenting opinions. It emphasizes that students must understand the facts of the case, the legal arguments of the parties, the court's disposition, the majority's reasoning and significance, and any additional opinions. Law professors use the case method to teach students how legal rules apply in practice and to study the development of law through actual judicial decisions.

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112 views

Kerr, How To Read A Legal Opinion (2007) (Lecture Notes) PDF

This document summarizes the key components of a legal opinion and what law students should learn when reading cases. It discusses the typical structure of a legal opinion, including the caption, case citation, author, facts, law, and concurring or dissenting opinions. It emphasizes that students must understand the facts of the case, the legal arguments of the parties, the court's disposition, the majority's reasoning and significance, and any additional opinions. Law professors use the case method to teach students how legal rules apply in practice and to study the development of law through actual judicial decisions.

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NicoleMagadia
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© © All Rights Reserved
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Download as PDF, TXT or read online on Scribd
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Lecture Notes

Orin S. Kerr, “How to Read a Legal Opinion: A Guide for New


Law Students” (2007)
Keith Burgess-Jackson
14 January 2016

1. What’s in a legal opinion? “The opinion explains what the case is


about, discusses the relevant legal principles, and then applies the law
to the facts to reach a ruling in favor of one side and against the other”
(51). Note that this use of “opinion” differs from the everyday use, as
in “that’s (just) your opinion.” To opine is to “hold or express as an
opinion” (from Latin opinari, think, believe). A legal opinion is an an-
nouncement of a belief (decision, judgment) together with a statement
of the grounds (justification) thereof.

a. The caption. This is the title of the case. It consists of the


names of the parties or litigants. Examples: Bowers (attorney
general of Georgia) v. Hardwick (an individual). Lawrence (an
individual) v. Texas (a state). Katko v. Briney (two individu-
als).

b. The case citation. 485 U.S. 759 (1993); 171 Iowa 47 (1978).
Volume, court, first page. Discuss state versus federal courts
and the various levels of courts in each system.

c. The author of the opinion. Sotomayor, J. Roberts, C.J.


Per curiam = by the court.

d. The facts of the case. What happened? Substantive and


procedural facts. Procedural facts are more important in Civil
Procedure and Criminal Procedure courses, where students
learn how to proceed. Procedure, process, proceed, procession.

e. The law of the case. Constitutions, statutes, treaties, ad-


ministrative regulations, previously decided cases (prece-
dents). After the court states and discusses the law, it applies
the law to the facts of the case to reach (arrive at) a decision.

f. Concurring and/or dissenting opinions. Decision versus


rationale. Ratio decidendi = “The ground or reason of decision.
The point in a case which determines the judgment” (Black’s

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Law Dictionary, 5th ed., 1135). Majority opinion = opinion
“joined by the majority of the judges on that court” (54). Con-
curring opinion = agreement in decision but not in rationale.
Dissenting opinion = disagreement in decision. In the U.S. Su-
preme Court, there can be 9-0, 8-1, 7-2, 6-3, and 5-4 rulings
(assuming all nine justices participate). Odd number of
judges/justices.

2. Common legal terms found in opinions. Many legal terms come


from the French language: “plaintiff” (π, pi), “defendant” (∆, delta),
“tort,” “contract” (K), “crime,” “judge,” &c. See list on page 55. There
are also words from Latin (the mother language of French). A law stu-
dent needs a good legal dictionary, such as Black’s (10th ed., 2014).

a. Types of disputes and the names of participants. Civil


versus criminal disputes. In the former, one requests damages
and/or an injunction. In the latter, a prosecutor (known as “the
state,” “the prosecution,” or “the government”) files “charges”
against a defendant. Different standards of proof: beyond a
reasonable doubt; preponderance of the evidence; clear and
convincing evidence. Lawyers for the parties are known as at-
torneys or counsel. The judge is known as “your honor” or “the
court,” as in “may it please the court.”

b. Terms in appellate litigation. One appeals rulings that


one believes are mistaken as to the law (not the facts). Harm-
less versus harmful error. Trial court (one judge) versus ap-
peals or appellate court (usually a panel of three or more
judges). In the Supreme Court, there are justices: one the chief
justice and the others associate justices. (Compare full, asso-
ciate, and assistant professors.) Appellant/appellee or peti-
tioner/respondent.

3. What you need to learn from reading a case. “Here is what


[law] professors want students to know after reading a case assigned
for class” (57).

a. Know the facts. “If you don’t know the facts, you can’t re-
ally understand the case and can’t understand the law” (57).
Read footnote 2 on page 57. Recount the exam question about
the golf-course worker and the golf cart.

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b. Know the specific legal arguments made by the par-
ties. The parties brief the court on the issue(s) between them.
“The lawyers, not the judges, take the lead role in framing the
issues raised by a case” (58). “Because the lawyers take the
lead role in framing the issues, you need to understand exactly
what arguments the two sides were making” (58). You can do
this either by reading the briefs or by reading the judge’s ac-
count of the arguments. Amicus curiae (friend of the court).

c. Know the disposition. The disposition is “the action the


court took” (58). Affirm or reverse lower court. Vacating the
lower-court decision and remanding (re-mand, hand back) for
further proceedings. Distinguish between reversing (a lower
court) and overruling (the same court). Lawrence v. Texas
(2003) overruled Bowers v. Hardwick (1986). Brown v. Board
of Education (1954) overruled Plessy v. Ferguson (1896).

d. Understand the reasoning of the majority opinion.


First, identify the source of the law the judge applied. Consti-
tution? Statute? Common law? Hierarchy of American law:
“Constitutional rules trump statutory (statute-based) rules,
and statutory rules trump common law rules” (59). Second,
“identify the method of reasoning that the court used to justify
its decision” (59). Deduction? Analogy? Stare decisis. Some-
times public policy is used as the basis for decision, though this
is controversial. Sometimes morality, fairness, or notions of
justice are used. Discuss Riggs v. Palmer.

e. Understand the significance of the majority opinion.


Holding (rule of the case) versus dicta (obiter dictum, a remark
by the way). Hypotheticals (new fact situations) sharpen the
rule by showing where it does and does not apply, i.e., what its
scope is. Reasoning by analogy. Some opinions are poorly rea-
soned; some are poorly written; some are vague. “One of the
skills of top-flight lawyers [and law students] is that they know
what they don’t know: they know when the law is unclear” (60-
1). Richard A. Posner, who has an undergraduate degree in
English from Yale College (1959), is a stylish writer as well as
a highly regarded judge.

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f. Understand any concurring and/or dissenting opin-
ions. These are “very important” (61). “Disagreement between
the majority opinion and concurring or dissenting opinions of-
ten frames the key issue raised by the case” (61). We will see
this when we read the Case of the Speluncean Explorers, Ober-
gefell v. Hodges, and Atkins v. Virginia, all of which have dis-
senting opinions.

4. Why do law professors use the case method? In other words,


why questions and answers rather than lectures, as in college? Why
focus on cases? There are two reasons:

a. Historical. “To understand [judge-made] law, we need to


study the actual decisions that the judges have written” (62).

b. Practical. Studying cases “teaches an essential skill for


practicing lawyers” (62). That skill is understanding “exactly
how an abstract rule of law will apply to the very specific situ-
ations a client might encounter” (62). Example: “No vehicles in
the park.” Easy cases and hard cases.

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