How to Read a Legal Opinion: A Guide for New Law Students (2007) [pdf]
papers.ssrn.com
papers.ssrn.com
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
[1] O.W. Holmes, Jr., The Common Law, https://www.gutenberg.org/ebooks/2449
That seems to be the fatal weakness of every legal discussion on HN: too many people here think this way.
I had no idea!
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.
>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?
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.
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).
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.)
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.
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.)
Why is that? e.g. how long ago were the important torts cases, did the law or environment change?