Law Professors, Law Schools

10 Things Law Students Do Wrong When Reading Cases For Class

Sorry, but you aren’t reading for class the right way.

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Do you even understand what you’re reading?

It occurred to me over the years as I watch students try to answer my questions in class that they don’t know what I know.  Or more precisely, they don’t know that I know what they know.  In other words, I’ve been where they are, and I know what they’re doing to prepare for class. I know the signs.

Some professors don’t articulate it.  They claim the students are not prepared for class, without further elaboration.  Professors get frustrated when students can’t answer the questions profs ask in class.  They are blind to case notes they have right out in front of them.

Students, you aren’t reading for class the right way.  You’ve forgotten your roots.  You’ve grown up from the 1L way of preparing, and in the process, have forgotten the magic of the law.  Let me sum it up for you in 10 points.

  1. You might not be reading the case at all. Some students are just reading some case briefs, or from the outline of a prior class, or the notes that some sainted reader bequeathed to them when they bought the used book.  If a student starts reading the first paragraph of the case to me after I ask a question, then I know they’re not comfortable with the case.  If I suspect the student is only using case briefs, I’ll start asking questions I know aren’t in the case briefs.  Of course, some students aren’t reading at all.  Here’s my post on that.
  1. You know the butler did it (you skipped to the end).  In mystery novels “the butler did it” is shorthand for skipping to the end.  It’s fictional cheating.  The equivalent in law school is to skim the case for that one holding (according to the casebook), and highlight that as the takeaway of the case.  For this reason, I sometimes assign unedited versions of cases so that the students know that the (sometimes) hyper-edited versions of cases students get in casebooks withhold a lot of potentially useful information.  I find myself feeling sad as different versions of casebooks reduce and reduce the case lengths over the years, sometimes to the point where I totally get why students don’t understand the case.  There’s nothing left in the casebook that allows for understanding.  I start to feel like the aged professor who talks about the good old days when case X stood for more than one proposition.  This doesn’t seem tolerated in modern casebooks.
  1. Where’s Waldo? You can’t find him! Sometimes I like to ask questions from the casebook when I know which page the answers are on.  Sometimes the students look on the wrong page.  Or both pages.  Sometimes I’ll ask questions in the order they appear in the decision.  Regardless, sometimes students do not appreciate the flow of the reasoning in the opinion, and therefore are left hunting and pecking for answers.

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  1. 7. You forget: What remedy? For some reason, the thing that causes the most confusion is always what happens next.  What was the disposition of the case?  Was the case remanded?  People come to court asking for help.  Did they get it?   My former employer wouldn’t allow us to consider bringing a case unless we knew for what remedy we were asking, and that it made sense.
  1. You forget there are consequences. What’s the effect of the decision?  What ramifications will be felt throughout the legal community or the economy?  Will the decision cause private businesses to recoil somehow?  Is this a decision that firms can “contract around?”  Often, students don’t give much thought to what happens after the decision.
  1. You skip the dissent.  I sometimes ask, “And what’s the dissent’s view?”  And there is a moment where some students frown, wondering if, in fact, there really was a dissent.  I think this is because we’ve stopped teaching history somewhere in middle school or something.  The dissent today may be tomorrow’s majority, planting the very seeds of the majority of tomorrow.  Does anyone today think that Justice Scalia’s scathing dissents are irrelevant in the world of Justice Gorsuch?
  1. You skip the concurring opinions, too.  It’s odd, but I sometimes get fewer answers about the concurring opinion than the dissent.  I think what this suggests is that we law schools might be doing a poor job of explaining the inner workings of SCOTUS.
  1. You recite all the facts, no matter how small. Sometimes when students are reading that first paragraph of the case to recite the “facts,” I wonder if they know what I’m asking.  It isn’t just everything that is a fact in the case that I’m seeking with my question.  Law professors seek the relevant facts.  What facts turn the decision?  Once law students get this, then the “hide-the-ball” game professors play becomes easier.  The student will know why the professor changed that fact in the hypothetical and why it matters, if at all.

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  1. You think: Procedure isn’t important.   For 1Ls, it is difficult to communicate that the issue is a summary judgment, and what that means for appeal and judicial review.  In upper-level classes, procedure sometimes gets lost or hidden by casebook authors looking to slim casebooks to just the takeaway law for the subject matter in question.  So maybe this isn’t such a problem with law students as it is a problem with casebook authors.
  1. You treat judicial decisions as boxed wines. I’ll use #1 to wax rhapsodic.  As I have the pleasure of reading cases over and over again each year, I’ve learned some new things about them as I reread them.  I rethink my opinion about the decision.  Every so often, I go back and read the full decisions after years of teaching the excerpts.  It allows me to discover old friends and lost treasures.  And for a moment, I feel compelled to create my own casebook that resurrects these buried treasures.  Well, I think that before sanity kicks back in.  Students, savor the flavor of each case you read.  You’ll note different flavors. And just like with wine, some have a smooth finish, while others do not.  I suppose the problem here, too, is with casebook authors and students alike.

I’d continue, but I have a one-page decision to read for class today in the new casebook.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here.  He is way funnier on social media, he claims.  Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

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