Two caveats up front:

First, I apologize if this memo sounds simplistic or patronizing. It is simple, and in my view it’s also basic, but that doesn’t make it easy, and I appreciate that. It is an effort on my part to explain what itr is I do when I read cases. As such, it started out being unconscious, intuitive, unarticulated. At best, then, like most forays into using words to capture unconscious thought, this effort at description is imperfect, partial, and shaky. One consequence is that it probably significantly over-simplifies its subject, and, in conveying it to you, that runs the risk of seeming paternalistic. Please understand that I view this &emdash;&emdash; the effort to explain what it is that goes on when we read cases&emdash;&emdash; as a shared enterprise, a work-in-progress, not something I can do and you can’t. To the extent there is arrogance here, I apologize and ask that you not let it get too much in the way. (And I am aware that there is, because although I recognize that this is just my way of reading cases and that others, skilled others, may do something utterly different, I nevertheless harbor the secret belief that mine is right and theirs is wrong. I act on the belief that my way of doing things has no better pedigree than theirs by not asking them to adopt mine. But that neither makes me want to let go of my faith in my own approach nor, for that matter, makes me able to do so.)

Second, where I am coming from. My roots lie somewhere between the Legal Realists (a movement in jurisprudence most popular between WW II and Vietnam) and the Crits (the next movement after that, still more or less alive in some places). Some would call these philosophies, but I see them more as social sciences. Legal Realism is sort of the sociology of lawyering, a description of the social practices of the professions of attorney and judge. A description from the inside, looking at a mirror. Critical Legal Studies is more along the lines of the anthropology of law. It is about the culture of law, as though it were the social practices of some Other Society. A description also from the inside, but trying to figure out what it looks like from the outside. Legal Realism, for all its mock objectivity, ultimately accepts the system as its own. The Crits more or less reject the system as something we may have to endure or respond to, but not own. What the two approaches share is the notion that it is important for lawyers to think about how law works (and who it works against). At least as important as it is to think about what law is, or should be. Maybe more important.

Here’s the meat:

We think of reading as a thing that we do: words on a page or a computer screen ‘ eyes on the words ‘ ideas in our heads. But actually, reading is a collection of different thought processes, all of which share this basic structure. Compare reading a poem with reading a news article or a history textbook. Faced with the onslaught of reading assignments as you arrive at law school, you think you know what you’re being asked to do. Read. Read a lot. Read it swiftly. You jump right into the task and discover that for the most part it’s not especially graceful prose, that it assumes you know a vast amount of stuff you’ve never heard of, and that much of it is about things that don’t really interest you. The solution to the bulk is to try to read faster, skipping as much as possible of what you don’t know, suppressing your frustration at the things you don’t understand (blaming yourself for not knowing enough or not being smart enough).

But back up a moment. When you started in on the task, you didn’t pause to think about what sort of reading you were going to do. But somewhere inside yourself some part of you did just that. It tossed it into a pigeonhole, and approached it as though it were a familiar task. "Oh, this," said your brain, "I know that this is. It’s reading. Clearly not a poem or a play. Really not much like a novel. It’s trying to tell me what the law is. Like a textbook, or a science article. I’ll use my reading-to-gather-information skills. Yuk!" There’s too much volume to stop and think consciously about whether that sort of reading is really what you’re being asked to do or whether it’s appropriate to the subject matter, certainly not enough time to try to figure out a new way to approach the task of reading. And anyway, the approach you’ve picked makes sense: you’re here to learn the law, we’ve thrown a bunch of cases at you, the law must be in those cases. It’s not the most efficient way to gather it up, but that’s what classes are for, and outlines, and hornbooks. What are cases, after all, if not judges’ efforts to describe the law as they see it?

But wait, there’s more. Cases are the end product of a legal system we callk the adversary system. Opposing sides duke it out, via their advocates, and a neutral judge sorts through the bloody remains and declares one side or the other the winner. Two advocates, a neutral judge. Except the judge is not so neutral, or so passive. Though we seldom acknowledge it openly, the judge is an advocate, too. That isn’t a neutral balancing of the facts against an objectively-defined pile of law. It’s the judge actively making the law be what she or he wants it to be, within the coonfines of what it can be, and then trying to sell that articulation of the judge’s version of the law to the reader. The parties, first and foremost. Appellate courts that have the power to overturn its decisions. Public opinion. Posterity. All judges are constantly looking over their shoulders at something, often many things. Pay no attention to the man behind the curtain . . . . Cases are a machine for the production of law, and no matter what they say (or even what they believe), judges are in the business (as we will see, an unavoidable business) of making new law (guided by old) and of selling it to skeptical consumers.

So when you read a case, you are reading an advocacy document. This is not a pigeonhole you are probably conscious of being familiar with, but you probably are quite adept at reading advocacy. The most common form of advocacy we deal with in the non-legal world is advertising. And we all have developed ways to deal with reading or hearing ads. Think of lawyers’ arguments as thirty- or sixty-second spots. Decisions are infomercials. Which means that you need to distance yourself from themand their claims, no matter how appealing they are. Prod around in them looking for the holes and the half-truths. Ask yourself what’s missing. If we didn’t do that every day, not only would we all smoke, we all smoke every brand. We make our consumer decisions critically. As consumers of the law you need to make your purchases no less warily. Justice Holmes referred to this as applying ‘cynical acid’ to the things you read. I think of it more along the lines of a trip to the dental hygienist, with you playing the part of the hygienist. Tiny tools with infinitely fine points prodding around even tinier holes, poking into dark corners, seeing if there isn’t some nice soft, squishy, pulpy decay (or, better yet, exposed nerve) to thrust your micro-lance into and get a response.

Read cases as though you were scraping and poking and prying around searching for even the tiniest signs of weakness. Cases, like teeth, are funny things. They seem hard and opaque and solid and healthy. But if you find even the tiniest flaw and follow it back you may well find that the entire structure beneath the surface is rotting or gone.

We will use class to try to generate a set of tools to add to the ones you’ve already got, and to hone and sharpen the ones you came with. To start with, your most critical tools are your curiosity and your emotions. Savor them. As you read cases, try to keep track of when you get bored, frustrated, confused, angry, overwhelmed. As new law students, your instincts will tell you that these are your fault, not the case’s, and that you should just ignore them; they’ll diminish as you become more expert. Some may. But most of them are warning signs, precious signals that there’s something wrong or missing in the case you’ve been reading. If it doesn’t hang together, more often than not, it’s not because you are stupid (or the judge is), it’s because someone skipped a step. Try to figure out what it is. Look for the mechanics of how the argument is built, not just the content of what it says. Critique it. Shine a spotlight on the missing pieces, the flaws in the architecture of the reasoning, the ellided facts, the missing links, the pea that seems to have moved magically from under one shell to another.

Cases are the magic tricks of the law. When you understand how they are done, they seem trivially, disappointingly, easy. But when you sit back in the judge’s thrall enjoying the show, you can get swept up by them into believing that the law is precisely what the judge says it is, that the outcome was inevitable, the case could have been decided no other way. But I have news for you. If that were true the case wouldn’t be in the casebook.

Worse. If cases were what judges try to make them appear &emdash;&emdash; the opportunity to uncover pre-existing law, law that, if the decision is well-wrought, will be obvious to all of us &emdash;&emdash; we’d all be out of work. No judges, no lawyers. Just law that answered all the questions clearly and unequivocally. Maybe a computer to help people figure it out, or a single judge to write it all up.