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Judicial Opinions

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.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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