
How to Read a Legal Opinion: A Guide for New Law Students (2007) [pdf] - walterbell
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1160925
======
dctoedt
In first reading legal opinions when I started law school, I was handicapped
by subconsciously imagining law to be a knowable _engineering_ discipline,
with accepted rules that could be learned and predictably applied. That's true
to a certain extent, but only in roughly the sense that Ptolemaic astronomy is
also true to a certain extent.

One might say that the practice of law is more akin to weather forecasting
than to engineering. As Oliver Wendell Holmes Jr. famously said, "The
prophecies of what the courts will do in fact, and nothing more pretentious,
are what I mean by the law." [0] The basis for prediction is, in essence,
looking to the outcomes of past power struggles between people who wanted what
they wanted and sought to enlist others — courts, legislators, executives, the
populace — in their cause.

Equally famously, Holmes said: "The life of the law has not been logic; it has
been experience. The felt necessities of the time, the prevalent moral and
political theories, intuitions of public policy, avowed or unconscious, and
even the prejudices which judges share with their fellow-men, have had a good
deal more to do than syllogism in determining the rules by which men should be
governed. The law embodies the story of a nation's development through many
centuries, and it cannot be dealt with as if it contained only the axioms and
corollaries of a book of mathematics." [1]

[0] O.W. Holmes, Jr., The Path of the Law, 10 Harvard Law Review 457 (1897),
[https://www.constitution.org/lrev/owh/path_law.htm](https://www.constitution.org/lrev/owh/path_law.htm)

[1] O.W. Holmes, Jr., The Common Law,
[https://www.gutenberg.org/ebooks/2449](https://www.gutenberg.org/ebooks/2449)

~~~
vonmoltke
> In first reading legal opinions when I started law school, I was handicapped
> by subconsciously imagining law to be a knowable engineering discipline,
> with accepted rules that could be learned and predictably applied.

That seems to be the fatal weakness of every legal discussion on HN: too many
people here think this way.

------
qrbLPHiKpiux
> 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.

I had no idea!

~~~
WrtCdEvrydy
To be honest, I didn't know any of those were french words.

------
mlevental
Can anyone suggest a book a lay person can read to be better educated about
how to understand/engage with rigorous law? like save for reading a civ pro,
con law, and torts book i don't know what i should do.

~~~
cormacrelf
You could try reading a torts book. Since nobody but lawyers ever wants to do
what you describe, the only books that get written are for law students and
professionals. Learning it halfway isn't actually very useful. No-one wants to
hear outsider perspectives on cases, they are pretty much never good, so
nobody wants to create a hive of lay-yers ready to go spreading their terrible
takes by giving them a book of handy hints. Case in point: most HN legal
discussions. Call me elitist but truly we are blessed that more people don't
try their hand.

A big problem is that your natural tendency to gloss over details has to be
beaten out of you, mercilessly, before anyone will trust you to make an
argumentative summary. You won't make much progress with the attitude that you
can just learn general principles and be slightly better at reading; you have
to get comfortable diving right down to details and coming up for air later.

Torts books are good because they start with the creation of torts and build,
they don't have to assume too much knowledge. And the judges are often unbound
by technicalities for the same reason. Hence 1L students can read them. You'll
get a great impression of what it means for judges to create law. Downside:
there are no new important torts cases popping up that you'd want to read.

~~~
mlevental
my goal is simply to be better able to navigate the legal system, rather than
to pontificate.

>You won't make much progress with the attitude that you can just learn
general principles and be slightly better at reading; you have to get
comfortable diving right down to details and coming up for air later.

it's a little presumptuous of you to imagine that 1 i intend to be so cavalier
2 that i don't already know how to be detail oriented. fwiw i took the lsat
and scored 97% - while not exactly translatable to writing a summary brief i
think i'm quite capable of diving into the details (if we're to believe lsac).

>Torts books are good because they start with the creation of torts and build,
they don't have to assume too much knowledge.

suggestion for a good one? should i also get the e&e?

~~~
vonmoltke
> it's a little presumptuous of you to imagine that 1 i intend to be so
> cavalier

Considering you ask for a book for a "lay person" on "rigorous law", I don't
think that was presumptuous at all. cormacrelf's point is that there is no
such thing. If it's written for a layperson, it can't be rigorous; conversely,
if it's rigorous it requires more than a lay understanding of law. Asking for
such a thing indicates an unfamiliarity with the depths that constitute rigor
in the legal profession.

~~~
mlevental
>Considering you ask for a book for a "lay person" on "rigorous law", I don't
think that was presumptuous at all. cormacrelf's point is that there is no
such thing

i laid out exactly what i thought was presumptuous

1\. that i'm cavalier

2\. that i'm not comfortable with detail oriented analysis.

>"lay person" on "rigorous law"

there is no mention of rigor in cormacrelf's post. rigor and detail are not
synonymous.

>If it's written for a layperson, it can't be rigorous

is this a feature of "the law"? i can point to many rigorous math books that
do not require a specialists understanding of the math (read: they introduce
all the necessary ideas).

~~~
cormacrelf
I was trying to get across why such books don’t exist, and why it might take
more effort than you might think.

The reason those math books exist is that people who understand the Riemann
Hypothesis halfway are not a huge danger to themselves and others. If you
wrote a law book designed for lay folk, it would fly off the shelves into the
hands of people who become self-represented litigants who would then screw up
their lives and give bad advice to their friends. Half-baked legal ideas about
what you are or are not allowed to do also get relied upon in practice, with
disastrous results. Whatever “navigate the legal system” means to you, that’s
what it means to everyone else.

Of course, there are thousands of mostly government publications out there
that do a great job explaining what your rights are in different situations. I
don’t have a problem with these, because they don’t give anyone the power to
read a case and think they know what it means for them.

When it comes to “introduc[ing] all the necessary ideas”, I was also making
the point with torts books that the ideas are not able to be easily isolated
from just learning the law. I would also argue that there is no such thing as
“rigorous law” in the sense that it implies some law that is not rigorous that
could still be usefully practiced. Hand-wavy explanations in math are
pedagogical; hand-wavy arguments in law are either unsupported or appeals to
bigger or competing principles, of which the latter is absolutely still
“rigorous law” and has to acknowledge the omitted details anyway. If you don’t
have the depth of knowledge, you end up in the former category pretty quickly.
If you wanted an academic perspective with normative arguments about what the
law should be, then sure, but that’s not “navigating the legal system”.

(Also, I can’t recommend a torts book. Wrong jurisdiction probably.)

~~~
mlevental
>If you wrote a law book designed for lay folk, it would fly off the shelves
into the hands of people who become self-represented litigants who would then
screw up their lives and give bad advice to their friends.

the same could be said about very many things - from biology to auto repair.
it's a very strange position to take on education because the converse is also
possible - the more educated someone becomes the more humble they become about
how nuanced/subtle the topic really is.

~~~
cormacrelf
I bet car manufacturers wish people would stick to the guidance they
distribute for the engines they make. But it’ll never happen. There will never
be a professional organisation to weed out bad or fraudulent mechanics, so
people are always going to need the basic knowledge to work out when they’re
being conned. Medicine, law ... professions that self-regulate are justified
in caring that people don’t try to DIY, because they present a credible and
reliable way.

You might be tempted to argue protectionism, but that only really flies when
some specific job is so completely studied and process-driven that you don’t
need the professionals any more. Not exactly the case when you’re talking
about interpreting appellate cases or similar, judging by the context of
Kerr’s article.

I don’t know what you mean about humility. (Oh - re those new readers. Yes,
it’s possible someone will read Law For Dummies and back out recognising the
vastness of their incomprehension. But those people were likely to hire a
lawyer for real problems already. We’re worried about the people who want to
confirm that they’ll be fine without seeking advice. Unless you just lace it
with recommendations to seek a lawyer, in which case congratulations, you are
a local renting tribunal’s public information officer.)

