7/28/2019 Kerr, How to Read a Legal Opinion (2007) (Lecture Notes).pdf

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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

19 January 2012

1. Whats in a legal opinion? The opinion explains what the case is about, discusses therelevant 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 thats just your opinion. To opine is to hold or express as an opinion (from Latin

opinari, think, believe). A legal opinion is an announcement 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 individuals).

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 or criminal procedure courses.

e. The law of the case. Constitutions, statutes, treaties, administrative regulations,

previously decided cases (precedents). After the court states and discusses the law, it

applies the law to the facts of the case to reach a decision.

f. Concurring and/or dissenting opinions. Decision versus rationale. Majority opinion =

opinion joined by the majority of the judges on that court (54). Concurring opinion =

agreement in decision but not in rationale. Dissenting opinion = disagreement in

decision. In the U.S. Supreme 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, defendant, tort, contract, crime, judge, &c. See list on page 55. There are

also words from Latin. A law student needs a good legal dictionary, such as Blacks.

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. Lawyers for the parties are known as attorneys or counsel. The judge is

known as your honor or the court, as in may it please the court.

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b. Terms in appellate litigation. One appeals rulings that one believes are mistaken as

to the law (not the facts). Trial court (one judge) versus appeals or appellate court

(usually a panel of judges). In the Supreme Court, there are justices: one the chief

justice and the others associate justices. (Compare full, associate, and assistant

professors.) Appellant/appellee or petitioner/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 dont know the facts, you cant really understand the case

and cant understand the law (57). Read footnote 2 on page 57. Recount the exam

question about the golf-course worker and the golf cart.

b. Know the specific legal arguments made by the parties. 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 judges

account 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 and overruling.

d. Understand the reasoning of the majority opinion. First, identify the source of the

law the judge applied. Constitution? Statute? Common law? Hierarchy of American

law: Constitutional rules trump statutory (statute-based) rules, and statutory rulestrump common law rules (59). Second, identify the method of reasoning that the

court used to justify its decision (59). Deduction? Analogy? Stare decisis. Sometimes

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 reasoned; some are poorly written;

some are vague. One of the skills of top-flight lawyers [and law students] is that theyknow what they dont know: they know when the law is unclear (60-1).

f. Understand any concurring and/or dissenting opinions. These are very important

(61). Disagreement between the majority opinion and concurring or dissenting

opinions often frames the key issue raised by the case (61). We will see this when we

read the Case of the Speluncean Explorers, District of Columbia v. Heller, Katko v.

Briney, and Hernandez v. Robles, all of which have dissenting opinions.

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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. The historical reason. To understand [judge-made] law, we need to study the actual

decisions that the judges have written (62).

b. The practical reason. 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 situations a client might encounter (62). Example: No vehicles in

the park. Easy cases and hard cases.