Chapter 2: Laid-Back U
[The Laid-Back U of the title is my hometown University of New Mexico, where I spent my first year of law school.]
Trying to read a judicial opinion for the first time isn't like reading a foreign language. It's hard, but not that hard. It's more like sitting in a theater for the first ten minutes of a Shakespeare play, or reading a random passage from Paradise Lost:
You recognize most of the words, and the sentence structure is generally familiar, and yet the meaning doesn't soak in. It floats near at hand, almost within reach, like a fluff of down pushed away by the air currents stirred up by your hand each time you reach for it.
We were taught to "brief" the cases we read. I recall feeling baffled by the very assignment. Our teachers talked about "briefing" cases as if it were self-evident what that meant, and as I glanced surreptitiously at the self-confident faces of my classmates it seemed apparent that I was the only student for whom its meaning wasn't self-evident. In retrospect, I'm not sure how I failed to register the frequency with which their sidelong glances intercepted mine—nerves, I guess.
"Brief" is another of those simple English words given an endlessly receding series of modulating meanings by lawyers. This particular usage (which is pretty much confined to law schools and paralegal studies programs) means to prepare a written summary of a case by filling in the blanks of a form. As with so many other things in the law, there was nothing difficult about the concept except the way lawyers talked about it.
But that didn't mean it was easy to learn how to brief a case. We were supposed to isolate the pertinent facts of the case, boil the legal dispute down to a one-sentence question, state how the judge answered the question, and then summarize the judge's reasoning. Only gradually did I realize that most judicial opinions follow the same four-part structure, at least roughly, which I suppose was the point of the exercise. ...
In those early weeks I would use the entire hour between classes to extract the meaning from a single case. Today it would take me just a couple of minutes to accomplish the same thing, and not because I'm any smarter now. Fluency followed from practice, depending not so much on learning the words— legal jargon, while renowned for its impenetrability, is no harder to pick up than any other slang—but the way judges have of presenting their rulings. Over the centuries judges have developed customary ways of telling the reader "now we're getting to the important part." And competent judges always make an effort to wrap up their ruling in a takeaway phrase or sentence designed to be quoted, exactly in the style of a politician's packaged sound bite. With practice one learns to spot those key phrases and ignore the rest. As with skiing, it requires only a little practice to acquire a basic facility. But, also as with skiing, the first attempts are frustrating enough to make you wonder why you ever thought it was a good idea to start.
I used the word "ruling" twice in that previous paragraph. It describes the most important thing about learning to read judicial opinions. They look like literary texts, and often they read like narratives, but they're exercises of political power. It requires an adjustment in attitude to recognize that what you're reading isn't any kind of literature but a bureaucrat's stamp translated into prose. The opinion is like the computer code responsible for the design on your monitor. What's important isn't the code but the appearance of the webpage. In the same way, the important thing about a judicial opinion isn't the thing the judge describes, but what the judge does. A working lawyer doesn't read a judge's opinion to understand the real-life dispute that was the occasion of the judge's ruling, but to understand the ruling. The judge is the important character; the parties are mere props.
That's not the way our high school civics teachers describe the judicial process, but it's not cynical, either. Some years after I graduated from law school I read a biography of Roger Taney, the white-supremacist Supreme Court chief justice who devoted the final years of a very long career to sabotaging Abraham Lincoln's presidency and the Union war effort. The biographer was in love with his subject, in the way typical of biographers, and ended the book by describing admiringly how Taney left behind at his death opinions declaring unconstitutional the Union's conscription and currency legislation, even though those issues had never been raised by any case before the Court. The chief justice, who publicly suggested that God had extended his life for the divine purpose of thwarting Abraham Lincoln and the Republicans, wrote his opinions first, then waited like the spider he had come to resemble for cases to come along that would give him an excuse to publish his resolutions of them.
Taney, in his shamelessness, was an extreme case, but he illustrates something first-year law students only gradually realize: resolution of the parties' dispute provides the occasion for the judge's ruling, but not its purpose.
Joel Jacobsen
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