Teaching Edited vs. Unedited Judicial Opinions
posted by Daniel Solove
Over at the Volokh Conspiracy, David Post and Orin Kerr are debating Post’s experiment of having students read unedited judicial opinions in his classes. Kerr writes that the skill of locating the relevant material in a case is a skill that is learned through all types of reading. Post counters that “a critical part of becoming a lawyer is being able to read through a long document – and not any old long document, but a very particular kind of long document, a ‘judicial opinion’ – to ‘find the relevant section.’”
As a casebook author, I’ve edited many judicial opinions, and editing them has shown me just how long-winded and redundant many of them are. This is especially true of more modern opinions. From my anecdotal sense, older opinions tend to be much shorter. Judge Benjamin Cardozo could turn an entire area of law upside down in just a few pages. Now, a judge will write 30 pages on a relatively uncontroversial case. In many cases, shorter tighter opinions would be much better, and it is unfortunate that more judges don’t take more care to be concise. As an editor of opinions, I’ve learned that they really do need an editor!
Should students be exposed to the unedited opinions, in their full obesity? Is it worthwhile to teach students how to find the important nuggets in 20-30 (or more) pages rather than 4-5? While this is certainly a skill, I agree with Orin that it is not particularly unique to judicial opinions. Even in the edited cases, there’s still the need to read carefully and find the key facts and reasoning.
One might argue that we’re presenting a slimmer, edited version of the real world, which is really fat and verbose. That’s true, but we present students with a fictional world already. The cases they read are all deliberately selected from the piles of judicial opinions out there on a particular topic. They are neatly organized too. Imagine if we exposed students to the real world, where they would read the thousands of opinions on a given topic and had to figure out which ones were good or bad.
Today’s students are growing up in a world with a glut of information, so I find that they do already have the skill of locating important information. They have to have this skill to survive in today’s Information Age. Maybe giving them one unedited opinion to show them how verbose these opinions are is worthwhile, but I don’t see the need to present them with much more than that. I find that giving students edited opinions still teaches them the skills of locating the key facts and analysis. Giving them a larger haystack to search through is probably not going to improve these skills significantly.
May 19, 2008 at 1:02 pm
Posted in: Law School (Teaching)
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Responses (6)
James Grimmelmann - May 19, 2008 at 2:03 pm
Without getting into the full substance of the question, I will say that casebooks should never remove the procedural posture from a case. Maybe it can be edited down into just a sentence, but it needs to be in there. David’s point about the value of repetition of the “basics” is nowhere truer than in the basics of procedure.
Pen Wong - May 20, 2008 at 3:04 am
hello.
while the NY Times links their (ordinary) readers to findlaw.com, i can’t see why can’t let students read unedited opinion.
p.s. i’m reading US v Williams
Marisa - May 20, 2008 at 7:57 am
I don’t mind slogging through unedited cases if it means that that I can save $100 to $200 per course by not buying a case book. Instead, I can print the cases off at school from the free Lexis/Westlaw printers. I was very grateful to the Professor Post for allowing us to do that this past semester.
Ariella - May 21, 2008 at 6:01 pm
I had no issue with edited opinions in case books when I was in law school, but noted that sometimes the editors may have removed too much. In cases where I went to the full opinion for more clarity, I sometimes found that the editors had removed some of the court’s reasoning or analysis — which ended up being important to me as a reader.
On the other hand, if including full opinions in case books would increase the cost, I would say stick to the edited opinions. If a student doesn’t understand, he or she can go to the full text on Westlaw/Lexis or ask the professor for more clarification.
Eric Alan Isaacson - May 24, 2008 at 1:42 pm
It’s tempting to blame long-winded opinions on computers and word-processing systems. But some of the longest and most redundant opinions I’ve read are old ones. Take, for example, Hale v. Everett, 53 N.H. 9, 1868 N.H. LEXIS 47 (1868), which just goes on, and on, and on, and on. Law students probably should have to slog through an opinion or two like Hale – - that they might better appreciate the editorial skill that goes into producing a good case book.
Eric Alan Isaacson - May 24, 2008 at 1:42 pm
It’s tempting to blame long-winded opinions on computers and word-processing systems. But some of the longest and most redundant opinions I’ve read are old ones. Take, for example, Hale v. Everett, 53 N.H. 9, 1868 N.H. LEXIS 47 (1868), which just goes on, and on, and on, and on. Law students probably should have to slog through an opinion or two like Hale – - that they might better appreciate the editorial skill that goes into producing a good case book.
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