Kerr, How to Read a Legal Opinion (2007) (Lecture Notes).pdf

Kerr, How to Read a Legal Opinion (2007) (Lecture...

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1 Lecture Notes Orin S. Kerr, “How to Read a Legal Opinion: A Guide for New Law Students” (2007) Keith Burgess-Jackson 14 January 2016 1. What’s in a legal opinion? “The opinion explains what the case is about, discusses the relevant legal principles, and then applies the law to the facts to reach a ruling in favor of one side and against the other” (51). Note that this use of “opinion” differs from the everyday us e, as in “that’s (just) your opinion.” To opine is to “hold or express as an opinion” (from Latin opinari , think, believe). A legal opinion is an an- nouncement of a belief (decision, judgment) together with a statement of the grounds (justification) thereof. a. The caption. This is the title of the case. It consists of the names of the parties or litigants. Examples: Bowers (attorney general of Georgia) v. Hardwick (an individual). Lawrence (an individual) v. Texas (a state). Katko v. Briney (two individu- als). b. The case citation. 485 U.S. 759 (1993); 171 Iowa 47 (1978). Volume, court, first page. Discuss state versus federal courts and the various levels of courts in each system. c. The author of the opinion. Sotomayor, J. Roberts, C.J. Per curiam = by the court. d. The facts of the case. What happened? Substantive and procedural facts. Procedural facts are more important in Civil Procedure and Criminal Procedure courses, where students learn how to proceed. Procedure, process, proceed, procession. e. The law of the case. Constitutions, statutes, treaties, ad- ministrative regulations, previously decided cases (prece- dents). After the court states and discusses the law, it applies the law to the facts of the case to reach (arrive at) a decision.
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