Howto Reada Legal Opinion
Howto Reada Legal Opinion
Howto Reada Legal Opinion
LEGAL OPINIoN
A GUIDE FOR NEW LAW STUDENTS
Grin S. Kerr
Orin Kerr is a professor of latv at the George Washington University Law School. This essay
can befreely distrthutedfor non-commercial uses under the Creative Commons Attribution
NonCommercial-NoDerivs 3.0 Unported license. For the terms of the license, visit creative
commons. org /licenses/by-nc-nd/3. 0 /legalcode.
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section takes you through the basic formula. It starts with the intro
ductory materials at the top of an opinion and then moves on to the
body of the opinion.
The Caption
The first part of the case is the title of the case, known as the “cap
tion.” Examples include Brown v. Board of Education and Miranda v.
Arizona. The caption usually tells you the last names of the person
who brought the lawsuit and the person who is being sued. These
two sides are often referred to as the “parties” or as the “litigants” in
the case. For example, if Ms. Smith sues Mr. Jones, the case caption
maybe Smith v. Jones (or, depending on the court,Jones u. Smith).
In criminal law, cases are brought by government prosecutors on
behalf of the government itself. This means that the government is
the named party. for example, if the federal government charges
John Doe with a crime, the case caption will be United States v. Doe.
If a state brings the charges instead, the caption will be State v. Doe,
People v. Doe, or Commonwealth v. Doe, depending on the practices of
that state.
The Case Citation
Below the case name you will find some letters and numbers. These
letters and numbers are the legal citation for the case. A citation
tells you the name of the court that decided the case, the law book
in which the opinion was published, and the year in which the court
decided the case. For example, “U.S. Supreme Court, 485 U.S. 759
(1988)” refers to a U.S. Supreme Court case decided in 1988 that
appears in Volume 485 of the United States Reports starting at page
759.
The Author of the Opinion
The next information is the name of the judge who wrote the opin
ion. Most opinions assigned in law school were issued by courts
English criminal cases normally ‘will be Rex v. Doe or Regina i’. Doe. Rex and
Regina aren’t the victims: the words are Latin for “King” and “Queen.” During
the reign of a King, English courts use “Rex”; during the reign of a Queen, they
switch to “Regina.”
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with multiple judges. The name tells you which judge wrote that
particular opinion. In older cases, the opinion often simply states a
last name followed by the initial “J.” No, judges don’t all have the
first initial “J.” The letter stands for “Judge” or “Justice,” depending
on the court, On occasion, the opinion w11i use the Latin phrase
“per curiam” instead of a judge’s name. Per curiam means “by the
court.” It signals that the opinion reflects a common view among all
the judges rather than the writings of a specific judge.
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Orin S. Kerr
ciding. This part of the opinion gives the reader background to help
understand the context and significance of the court’s decision. The
second stage of the legal section applies the general legal principles
to the particular facts of the dispute. As you might guess, this part is
in many ways the heart of the opinion: It gets to the bottom line of
why the court is ruling for one side and against the other.
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Why should you care about this ancient history? The American
colonists considered themselves Englishmen, so they used the Eng
lish legal system and adopted its language. This means that Ameri
can legal opinions today are littered with weird French terms. Ex
amples include plaintiff, defendant, tort, contract, crime, judge,
attorney, counsel, court, verdict, party, appeal, evidence, and jury.
These words are the everyday language of the American legal sys
tem. And they’re all from the French, brought to you by William
the Conqueror in 1066.
This means that when you read a legal opinion, you’ll come
across a lot of foreign-sounding words to describe the court system.
You need to learn all of these words eventually; you should read
cases with a legal dictionary nearby and shoi.ild look up every word
you don’t know. But this section will give you a head start by intro
ducing you to some of the most common words, many of which
(but not all) are French in origin.
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If you don’t believe me, you should take a look at a few law school exams. It
turns out that the most common form of law school exam question presents a
long description of a very particular set of facts, It then asks the student to “spot”
and analyze the legal issues presented by those facts. These exam questions are
known as “issue-spotters,” as they test the student’s ability to understand the facts
and spot the legal issues they raise, As you might imagine, doing well on an issue
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The phrase “common law” started being used about a thousand years ago to refer
to laws that were common to all English citizens. Thus, the word “common” in
the phrase “common law” means common in the sense of “shared by all,” not
common in the sense of “not very special.” The “common law” was announced in
judicial opinions. As a result, you will sometimes hear the phrase “common law”
used to refer to areas of judge-made law as opposed to legislatively-made law.
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Orin S. Kerr
their decisions. Many courts wii mix and match, relying on several
or even all of these justffications.
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Orin S. Kerr
you. Even weirder, your professors are asking you questions about
those opinions, getting everyone to join in a discussion about them.
Why the difference?, you may be wondering. Why do law schools
use the case method at all?
I think there are two major reasons, one historical and the other
practical.
The Historical Reason
The legal system that we have inherited from England is largely
judge-focused. The judges have made the law what it is through
their written opinions. To understand that law, we need to study
the actual decisions that the judges have written, further, we need
to learn to look at law the way that judges look at law. In our sys
tem of government, judges can only announce the law when decid
ing real disputes: they can’t just have a press conference and an
nounce a set of legal rules. (This is sometimes referred to as the
“case or controversy” requirement; a court has no power to decide
an issue unless it is presented by an actual case or controversy be
fore the court.) To look at the law the way that judges do, we need
to study actual cases and controversies, just like the judges. In short,
we study real cases and disputes because real cases and disputes his
torically have been the primary source of law.
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