As a first year law student, you will be reading a lot of material.  The vast majority of your reading will consist of decisions rendered by appellate courts.

Appellate decisions occur very late in the game.  The case has already been tried to a judge, or a judge and jury, and an initial, trial decision announced.  The losing party at trial has appealed the trial court's decision to the appellate court, and the court has rendered a written opinion about the soundness or unsoundness of the trial court's decision.

Appellate decisions are only the tip of a very large iceberg.  Most disputes between parties do not result in the filing of a lawsuit.  Most lawsuits are settled before trial.  And many trail court decisions are not appealed.  Of those decisions that are appealed, many settle before the appeal is decided.  Thus, the percentage of cases that result in appellate court opinions being written is very small.

There are good reasons for this, that we will explore later in detail.  For now, let’s just say that only cases involving complex or contested facts, or very unclear legal principles, or both, are likely to heard and decided by an appellate court.

Thus, most of the cases you will be reading this coming year are difficult cases – so-called “hard cases” -- for one reason or another.

In other words:  The cases in your casebooks are NOT TYPICAL.  They are atypical.  The typical case settles -- because its facts are (fairly) clear and the applicable law is (fairly) clear.  But, more on that later.

Since the decisions in your casebooks are in hard cases, you should get in the habit of reading a “hornbook” or “treatise” along with you casebook assignment, to get the settled law more clearly in mind.  This will make the discussion of the cases much more useful to you.

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There are some law professors who criticize American legal education’s reliance on casebooks and the case method of instruction.  One of the most persistent is Alan Watson, a highly-regarded Roman and civil law scholar at the University of Georgia.  Here are a couple of perhaps-surprising statements from his article, Introduction to Law for Second-Year Students?, 46 J. Legal Education 430 (1996):

"My point is that the standard approach misrepresents the way law is, how it develops, and its relation to society.  Concepts and principles are badly downplayed.  So are rules, and their authority and stability.  Cases are removed from their legally relevant context, and the authority of the context is dismantled.  Oddly perhaps, a further result of this approach is that often cases are removed from their social context.  The judges' yearning for authority and the future judges' respect for it are downgraded.  So is the nature of the authority that is requisite or desired."  (pp. 437-38)

"A true search for authority is always backward-looking.  Law as expounded by judges has a built-in tendency towards conservatism."  (p. 438)

"At most times in most places, legal rules, structures, and institutions are borrowed -- sometimes, but not always, out of respect for the time-tested accumulation of wisdom behind them."  (pp. 439-40)

"[O]ne of the striking features of law is precisely its longevity."  (p. 442)

"Legal thinking, in the Western world at least, is authoritarian and essentially conservative."  (p. 435)
 

Questions for discussion:  What does Watson mean by "authority"?  Where does it come from?