Conference on New Ideas for Experienced Teachers

June 9–13, 2001
Calgary, Alberta, Canada

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© Prof. Christina L. Kunz, 2001

Alternative Reading Lenses for Rules of Law

• paraphrasing each rule into if/then, if/then/unless, or if/then/regardless of
• flow charts and other graphic depictions of rules of law
• learning more about a rule by applying it to a set of facts
• fusing rules on the same narrow topic into a single rule
• grouping related rules and ordering the groups of rules
• figuring out the hierarchical relationships of rules and groups of rules
• the difference between reading case by case, versus reading topic by topic
• applying multiple rules to a set of facts
• reading complex rules, especially statutory rules

A Microscopic Reading Lens for “Book-Briefing”
These instructions apply ONLY to this class. You should not alter your case briefing practices for other classes. These “book briefing” steps are designed to be completed in your textbook, rather than on a separate piece of paper. To speed up your reading, consider using abbreviations (mine or your own).

• Heading: Next to each party’s name, write all applicable roles (for example: buyer, P, apnt.; seller, D, resp.). Mentally note which level of court decided the case within that jurisdiction. Also note the year of decision.
• Cause of action; remedy: Usually near the beginning of the opinion, you can find the cause(s) of actions (the names of the legal claims) and what remedy(ies) the plaintiff sought for those claims. Label them with “c/a” and “rem.” If the defendant brought counter-claims, note the same for the opposing claims.

  In contracts class, the cause of action often is breach of contract (Br/K) or promissory estoppel (prom. estop.). The remedy often is damages (dmgs) or specific performance (spec. perf.).

• Judgment: Usually at the beginning or end of the opinion, you can find whether the court ruled for the plaintiff and the defendant. If the court is an appellate court (which it usually is), you can find the ruling(s) of the court(s) below and whether each appellate court affirmed, modified, or reversed the court immediately below. If it reversed, look to see whether it simply reversed or instead reversed and remanded. If you don’t know the meaning of all of these terms, look them up. In the margin next to each ruling, write a shorthand for that ruling; for example: J/P, J/R/D, J/M/D, J/R&R/P. Then go back to the beginning of the opinion and write the whole pile of rulings, so that you can see them all at a glance.
• Factual components: Now start looking for the facts of the case. By “facts,” I mean what happened up to the moment just before the complaint was filed. If you’re lucky, they’ll all be in one place, set apart, perhaps even with a subheading. Sometimes though, they’re scattered throughout the opinion, with new factual pieces of the puzzle revealed with each new issue. Just when you think you’ve found all of them, the court throws in another stray fact. Bracket each passage containing facts, and label it “F.”

  Now start parsing out what kind of facts these are. If any are findings of fact by the court, resolving a factual dispute, label them “FoF.” If any are still disputed facts, you might label them “P’s fact version” and “D’s fact version.” Sometimes you might want to label testimony separately as well.

  Once you have found all of the facts in the opinion, review them and underline or highlight the more important ones, so that you can spot them at a glance. Note any irrelevant facts.

• Procedural components: Locate the procedural aspects of the case, aside from the judgments that you’ve already located. By “procedure,” I mean what happened in the court system from the moment the complaint was filed. You could label all of this material as procedure (proc.), but I find it more useful to label each procedural action individually in the margin. For example, “P moved for partial SJ” (summary judgment), “D moved for DV” (directed verdict), “Jnov” (court granted judgment not withstanding the verdict), or my now-infamous “mtdfftsac” (motion to dismiss for failure to state a claim, always brought by the defendant, unless defendant has a cross-claim). You also should label the contents of the complaint (“complt”) and the answer, if portions are described or quoted.
• Issues and arguments: Locate the main issue(s) of the case and then the sub-issues, if any. Issues are sometimes tricky to find. They might be called other things, like assignments of error, grounds for appeal, or plaintiff’s or defendant’s arguments or counter-arguments or refutations. They can be procedural, substantive, or a blend of the two. You might label them I_proc and I_subst.

  A complicated case often contains multiple issues or multiple sub-issues within a particular issue. It’s important for you to find these relationships among issues, because they define the large-scale and middle-scale organization of the rest of the opinion, aside from the introductory and factual material. For instance, if an opinion has two issues and the second issue has three sub-issues, you might label the issues in the margin as I₁, I₂, I_2a, I_2b, and I_2c. This scheme of numbers and letters also will appear in the sections below on holding and reasoning.

  In addition, if any of the issues are masquerading in the form of either party’s argument, counter-argument, or refutation, add a second label, such as “apnt’s args” or “resp’s c-args” or “refut’n, ” if that is helpful for your analysis of the case.

• Holding: Because you’ve already labeled the judgment(s), which is a kind of holding, this component is-for our purposes--just the textual answer(s) to the issue(s). If there is only a single issue and a single holding, label the holding “H.” You should be able to find a holding for each issue and sub-issue (for instance, H₁, H₂, H_2a, H_2b, and H_2c). If the court sets out the holding of the trial court and the appellate court below, you might label them as H_{tr ct} and H_{app ct}. Holdings can be substantive, or procedural, or a blend of both. You might label them H_subst and H_proc.
• Reasoning: Now that you know the issue(s) addressed by the court and the holding(s), you can locate and label the court’s reasoning in reaching the holding(s). In a case with a single issue and holding, you might bracket the reasoning and label it “R.” In the more complex example above, you might label the various passages of reasoning as R₁, R₂, R_2a, R_2b, and R_2c.

  In addition to the “R” labeling, you should label “policy” (the underlying rationale for a rule) wherever you find it. Some cases pivot more on policy than on other aspects of reasoning.

  Once you have found all of the reasoning in the opinion, review it and underline or highlight the more important points, so that you can spot them at a glance.

• Rules of law: You need to label the rules of law prominently, so that you can extract them easily, to paraphrase them into if/then form, fuse them with related rules, organize them, and make your outline or other topical review materials of the chapter. My system is to use curved brackets for everything above, but to use square brackets for rules of law and sometimes even label them as “RoL.”

  Most of the time, the rules will be stated in the reasoning, sometimes in several reiterations, as the court quotes or paraphrases various supporting authorities. Occasionally, though, the court will not state the rule separately, but instead will embed it in the holding or the issue, as applied to these particular parties. In that case, you will need to rephrase the specific holding or the issue as a general rule that can be applied to future fact situations. You might write this rephrasing in the margin.

• Dissenting or concurring opinions: These minority opinions sometimes contain all of the above components, except the first three (heading, cause of action and remedy, and judgment). They might bring additional facts and procedures to your attention. Dissenting opinions urge the opposite judgment and holding, and both often use reasoning and rules of law that differ from those in the majority opinion.
• Your own questions: Don’t forget to be a critical reader. When something doesn’t make sense or when the court has forgotten something, write that observation or question in the margin. It may be just the point that I or someone else will raise in class.

Reading Lenses for Broader and Deeper Understanding
(pre-reading questions and tasks):

• reading for your own learning style
  • big picture first, by reading an overview before the chapter
  • big picture later, by reading an overview after the chapter
• stakeholder analysis of parties’ interests and public policies
  • can influence court’s choice among rules
  • can result in split between majority and dissent
  • can result in splits among jurisdictions
• T-chart of arguments, counter-arguments, and refutations
  • directly responsive to argument?
  • valid objection to argument?
  • can also be in form of advantages and disadvantages of rule of law
• T-chart of court’s steps in reasoning and its supporting rules, analogies, policies, and facts
  • looking for gaps in steps
  • looking for holes in support
  • looking for misnomers (e.g., termination, cancellation, repudiation, rescission)
• branch-point analysis
  • party’s arguments in the alternative
  • court’s reasoning or holdings in the alternative
• reading in historical context
  • social movements and attitudes
  • stated and unstated events
• reading from a preventive viewpoint
  • redraft clause to prevent lawsuit
  • advice to future client with similar problem
• bridges among related cases
  why did the casebook author choose these cases or this sequence of cases?
  • evolution of law
  • split in jurisdictions
  • alternative resolutions of a larger issue
  • mistaken case and a correct case
  bridges across chapters
  • same policies drive multiple rules
  • familiar issues re-appear in new context
  • commonly associated issues

Advantages

• greater coverage (gained 6 hours over the year, in 6-credit course)
  • same speed in first semester, but much quicker in second semester
  • enough time for 4 hours of in-class work on chapter outlines and adequate coverage of third-party beneficiaries and assignment/delegation
• better class discussion and attention
• better student performance on exams
• student gratitude for carry-over of reading skills to other first-year classes

Disadvantages

• more time spent looking over student homework
• more pop quizzes on reading

Application of critical reading skills to upper-level courses as well

Commercial Transactions: How to read the UCC and other statutes

• see above skills for reading rules of law
• meaning imparted by grammatical structures, e.g.,
  • what word does the clause modify?
  • what noun is the antecedent of the pronoun?
  • where does the dependent clause end and the independent clause begin?
• interaction between text and comments
• interaction among sections, including definitions and goals of act
• interaction between statute and cases

• large-scale structure of many detailed agreements
  • opening clauses, operative provisions, housekeeping clauses
• middle-scale evaluation of ordering and grouping topics
  • adding missing headings, if any
  • breaking out hidden topics
  • ordering chronologically or other order
• small-scale reading skills
  • Plain English translations
  • correct verbs (shall, may, must, will, can, to be, etc.)
• reading clusters of related provisions, e.g.,
  • quality warranties and remedies
  • title warranties and remedies
  • risk allocation
• reading the written agreement in context of the unstated:
  • mandatory and default provisions
  • course of performance, course of dealing, and usage of trade
  • testing with “what if . . .” questions

• the problem of being a novice in the discourse
• demonstrating good reading practices
• suggesting alternative reading practices
• pre-reading questions

• Brook K. Baker, Transcending Legacies of Literacy and Transforming the Traditional Repertoire: Critical Discourse Strategies for Practice, 23 Wm. Mitchell L. Rev. 491 (1997).
• Scott Burnham, Critical Reading of Contracts, 23 L. Studies Forum 391 (1999).
• Peter Dewitz, Legal Education: A Problem of Learning from Text, 23 N.Y.U. Rev. L. & Soc. Change 225 (1997).
• Peter Dewitz, Reading Law: Three Suggestions for Legal Education, 27 U. Tol. L. Rev. 657 (1996).
• Elizabeth Fajans & Mary Falk, Against the Tyranny of Paraphrase: Talking Back to Texts 78 Cornell L. Rev. 163 (1993).
• Mary A. Lundeberg, Metacognitive Aspects of Reading Comprehension: Stydying Understanding in Legal Case Analysis, 22 Reading Res. Q. 407 (1987).
• Laurel Currie Oates, Beating the Odds: Reading Strategies of Law Students Admitted through Alternative Admissions Programs, 83 Iowa L. Rev. 139 (1997).
• James Stratman, The Emergence of Legal Composition as a Field of Inquiry: Evaluating the Prospects, 60 Rev. Educ. Res. 153 (1990).
• Deborah Schmedemann & Christina L. Kunz, Synthesis: Legal Reading, Reasoning, and Writing chs. 2, 4, and 8 (Aspen 1999).