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Newsletters>
What does a case stand for?
October 27, 2007
With respect to the cases that are used in law school
casebooks, there are usually two fundamental parts to each
case. There is the actual rule of law of the case and then
there is the theory on how that rule of law was developed.
Profs just love using the theory as the rule of law.
That is a mistake of enormous magnitude. The theory will
only give you a hint as to how the next case will be
decided and nothing more. The reason this is true is
because the Supreme Court and many state courts are
politicized beyond all belief. Virtually all of them
legislate from the bench and all of them have their own
agendas. So the application of any theory of law will
always depend on the make up of the court and the secret
agendas judges have.
In fact, analogy is a more powerful predictive tool than
the theory of any case. However, law students are rarely
exposed to analogy as it requires a full understanding of
the fundamental law in many areas to make the proper
connections. Law students don't learn enough fundamental
law and spend 50% of their time being exposed to boutique
fluff courses instead of really learning contracts, torts,
criminal law, real property, civil procedure, criminal
procedure, evidence, etc. Even judges and in many
instances Supreme Court Justices miss analogy and the
connections to be made. In case you doubt what we are
talking about, download the Rom Law product, install it,
and go to the Casebriefs and hit Compendium and look up
WHARF (HOLDINGS) LTD. V. UNITED INTERN. HOLDINGS, INC. 532
U.S. 588 (2001) and SEC v. ZANFORD 535 U.S. 813 (2002).
There you will see a prime example of the Court missing a
very big and important connection on how to resolve the
problems before it.
That being said, you will always be able to spot the actual
holding of the case unless you are asleep at the wheel. As
for the theory, theories generally have no context unless
you understand the nature of prior case law and prior
decisions. Sometimes that is very hard to do because the
casebooks in many instances do not give you that hindsight.
But, if you know to look for the theory and rationale or
the explanation of just how the court got to its actual
rule of law, you will easily spot the theories and you will
easily be able to give the profs what they want to hear.
When in Rome....you know the rest.
As for the Socratic method, it cannot work and it will
never be effective unless you know the law. That requires
memorization. Memorization is the fundamental starting
point of all good legal analysis. Without memorizing the
law you will never be a good lawyer and you will make law
school twice as hard as it should be. You can read more
about what we have to say about study methods and how to
make the anxiety of law school go away in our advice
columns on this site.
We may sound very cynical on a lot of the advice we give.
But remember one thing, the law is extremely easy to learn.
Most of the great legal minds learned the law, for the most
part, on their own. Modernly, unless they hide the ball on
you a lot, no sane person would pay $40,000 per year to sit
in a law school. Hence they make things four times harder
than it should be to justify the price they are charging.
We love them for it and admire them because its a business
and they are extremely good business people in creating a
high demand for a product that should not exist. It just
doesn't get any better than that. We rank their success up
there with the paper towel people who brought modern
consumer germaphobia to a pinnacle of unimagined success by
having everyone using paper towels instead of cloths
because of germs and alleged ease of cleanliness!
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