TDot’s Tips: Highlight the headnotes

Posted by T. Greg Doucette on Sep 9, 2010 in TDot's Tips | Subscribe

Greetings from ConLaw! :D

Now some of our longer-term readers might be wondering “What on earth is TDot doing writing a blog entry during his self-professed favoritest class evah?” — to which I’d reply “That’s a very good question!”

The truth is… I’m not :beatup: This was/is the almost-finished TDot’s Tips entry I mentioned yesterday, but given how ConLaw has gone today I figured it was a serendipitous time to post the post ;)

Specifically, I’m surprised by how many of my classmates at NCCU Law — and law students I’ve talked with at other schools too — deeply and truly hate Constitutional Law!1 :surprised:  The most common complaint I’ve heard is that it’s tough to wade through the SCOTUS-ese to find “the law” when reading cases in our (newly-issued and highlight-free) books, particularly the opinions from the Court’s early years.

It’d be a legit complaint… if “the law” wasn’t already spelled out for us :P

Maybe it’s a 2L version of “getting stuck on the dot“, but folks seem to forget that LexisNexis and WestLaw make everything easy by providing headnotes for each case. This is “the law”2  — and should be one of the things you highlight any time you’re reading an unhighlighted law school text :)

For me, studying for a class where I’ve been assigned casebook readings is a 4-part process:

1) Read the case. This one (hopefully) is obvious, but you need to actually read a case to get a real understanding of it. It’s easy to grab a LegaLines supplement or pre-cooked case brief and go from there, but odds are good the summaries you read will miss some of the important nuance in every opinion. Besides, some of the facts are just plain crazy and worth reading on their own :D

Some headnotes from LexisNexis

2) Highlight the law, a.k.a. the Wexis headnotes. WestLaw and LexisNexis both make oodles and oodles of money off law firms that use their services, so they use an oodle or two to make attorney life easier by extracting the main parts of the holding and throwing them into the headnotes. After you’ve read the case, pull it up online using your unlimited-access law student account, and go through each headnote and highlight it in the book. Now if a professor ever asks “What’s the take-home point in this opinion?” your eyes will naturally spot the highlighted section(s) of the opinion.

3) Highlight the loopholes, a.k.a. the legally significant facts. There’s an old lawyer’s adage that if the law is on your side you argue the law, and if the facts are on your side you argue the facts.3 Every court opinion is issued in response to an underlying case, and every underlying case is composed of key facts that led the court to its conclusions. You need to recognize what those key facts are so you can either harmonize or distinguish your case’s facts with those a court has already considered.

4) Put the holding in “normal people” terms. Judges aren’t normal people. Period. It’s like folks who voluntary spend their professional lives doing taxes — sure it might be an important job, but let’s not pretend like it’s a “normal” interest.4 And since judges aren’t normal people, they don’t write like normal people. And since they don’t write like normal people, it’s easy to get lost in the thicket of legalese that comprises judicial opinions. Fix that problem by writing a few notes to yourself about the court’s holding in regular terms.

For example, there’s a lot of talk about “nexuses” in Flast v. Cohen, 392 U.S. 83 (1968). This is the rhetorical description the Supreme Court decided to use in explaining its opinion, and if you focus on that (obtuse) language you may end up missing the point of the holding — that generally taxpayers can’t file suit in their capacity as taxpayers to challenge Congressional spending (nexus #1) , except in the narrow exception where it involves a purported violation of the First Amendment’s Establishment Clause (nexus #2).

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My process for reading a case probably isn’t the most efficient or even the best use of your time, so take this with the normal disclaimer that your mileage may very. It’s worked out phenomenally for me though, so hopefully you might get some use out of it too :)

Have a great night y’all! :D

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Past TDot’s Tips entries:

  1. This is the foundational cornerstone stuff to our entire legal system here in the U.S., how can any aspiring lawyer not like it?? :crack: [↩]
  2. Disclaimer: it’s actually an ever-so-slightly generalized version of the law — never quote a headnote directly in a brief, and instead quote the court’s own language ;) [↩]
  3. The adage continues: And if neither is on your side, you malign the opposition :beatup: [↩]
  4. When was the last time you heard a 3rd grader say he wanted to become a tax attorney when he grew up? Exactly ;) [↩]

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