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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, Peoplev. Doe, or Commonwealthv. 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. TheAuthor 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 ‘willbe 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, Englishcourts use “Rex”; during the reign of a Queen, they switch to “Regina.”
52 11 GREENBAG 2D How to Read a Legal Opinion
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 w11iuse the Latin phrase “per curiam” instead of a judge’s name. Per curiam means “by the court.” It signalsthat the opinion reflects a common view among all the judges rather than the writings of a specificjudge.
TheFacts of the Case Now let’s move on to the opinion itself. The first part of the body of the opinion presents the facts of the case. In other words, what happened? The facts might be that Andy pulled out a gun and shot Bob. Or maybe Fred agreed to give Sally $100 and then changed his mind. Surprisingly, there are no particular rules for what facts a judge must include in the fact section of an opinion. Sometimes the fact sections are long, and sometimes they are short. Sometimes they are clear and accurate, and other times they are vague or in complete. Most discussions of the facts also cover the “procedural history” of the case. The procedural history explains how the legal dispute worked its way through the legal system to the court that is issuing the opinion. It will include various motions, hearings, and trials that occurred after the case was initially filed. Your civil procedure class is all about that kind of stuff; you should pay very close attention to the procedural history of cases when you read assignments for your civil procedure class. The procedural history of cases usually will be less important when you read a case for your other classes.
TheLaw of the Case After the opinion presents the facts, it will then discuss the law. Many opinions present the law in two stages. The first, stage dis cusses the general principles of law that are relevant to cases such as the one the court is deciding. This section might explore the history of a particular field of law or may include a discussion of past cases (known as “precedents”) that are related to the case the court is de
AuTulviN 2007 53 Orin S. Kerr ciding. This part of the opinion gives the reader background to help understand the context and significanceof 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 againstthe other. Concurring and/or Dissenting Opinions Most of the opinions you read as a law student are “majority” opin ions. When a group of judges get together to decide a case, they vote on which side should win and also try to agree on a legal ra tionale to explain why that side has won. A majority opinion is an opinion joined by the majority of judges on that court. Although most decisions are unanimous, some cases are not. Some judges may disagree and will write a separate opinion offering a different approach. Those opinions are called “concurring opinions” or “dis senting opinions,” and they appear after the majority opinion. A “concurring opinion” (sometimes just cafled a “concurrence”) piains a vote in favor of the winning side but based on a different legal rationale. A “dissenting opinion” (sometimes just called a “dis sent”) explains a vote in favor of the losing side.
II. COMMON LEGAL TERMS FOUND IN OPINIONS ow that you know what’s in a legal opinion, it’s time to learn N some of the common words you’ll find inside them. But first a history lesson, for reasons that should be clear in a minute. In 1066, William the Conqueror came across the English Chan nel from what is now France and conquered the land that is today called England. The conquering Normans spoke French and the de feated Saxonsspoke Old English. The Normans took over the court system, and their language became the language of the law. for sev eral centuries after the french-speaking Normans took over Eng land, lawyers and judges in English courts spoke in French. When English courts eventually returned to using English, they continued to use many French words.
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Terms in Appellate Litigation Most opinions that you read in law school are appellate opinions, which means that they decide the outcome of appeals. An “appeal”is a legal proceeding that considers whether another court’s legal deci sion was right or wrong. After a court has ruled for one side, the losing side may seek review of that decision by filing an appeal be fore a higher court. The original court is usually known as the trial court, because that’s where the trial occurs if there is one. The higher court is known as the appellate or appeals court, as it is the court that hears the appeal. A single judge presides over trial court proceedings, but appel late cases are decided by panels of several judges. for example, in the federal court system, run by the United States government, a single trial judge known as a District Court judge oversees the trial stage. Cases can be appealed to the next higher court, the Court of Appeals, where cases are decided by panels of three judges known as Circuit Court judges. A side that loses before the Circuit Court can seek review of that decision at the United States Supreme Court. Supreme Court cases are decided by all nine judges. Su preme Court judges are called Justices instead of judges; there is one “Chief Justice” and the other eight are just plain “Justices” (technically they are “Associate Justices,” but everyone just calls them “Justices”). During the proceedings before the higher court, the party that lost at the original court and is therefore filing the appeal is usually known as the “appellant.” The party that won in the lower court and must defend the lower court’s decision is known as the “appellee” (accent on the last syllable). Some older opinions may refer to the appellant as the “plaintiffin error” and the appellee as the “defendant
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in a 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 casesand 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. The Practical Reason
A second reason professors use the case method is that it teaches an essential skill for practicing lawyers. Lawyers represent clients, and clients wtli want to know how laws apply to them. To advise a cli ent, a lawyer needs to understand exactly how an abstract rule of law will apply to the very specific situations a client might encoun ter. This is more difficult than you might think, in part because a legal rule that sounds definite and clear in the abstract may prove murky in application. (for example, imagine you go to a public park and see a sign that says “No vehicles in the park.” That plainly for bids an automobile, but what about bicycles, wheelchairs, toy automobiles? What about airplanes? Ambulances? Are these “vehi cles” for the purpose of the rule or not?) As a result, good lawyers
62 11 GREEN BAG 2D
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