Riley v. California, 134 S.Ct. 2473 (2014) 134 S.Ct. 2.docx

Riley v. California, 134 S.Ct. 2473 (2014)
134 S.Ct. 2473
Supreme Court of the United States
David Leon RILEY, Petitioner
v.
CALIFORNIA.
United States, Petitioner
v.
Brima Wurie.
Nos. 13–132, 13–212. | Argued April 29, 2014. |
Decided June 25, 2014.
Opinion
Chief Justice ROBERTS delivered the opinion of the
Court.
These two cases raise a common question: whether the
police may, without a warrant, search digital information
on a cell phone seized from an individual who has been
arrested.
In the first case, petitioner David Riley was stopped by a
police officer for driving with expired registration tags. In
the course of the stop, the officer also learned that Riley’s

license had been suspended. The officer impounded
Riley’s car, pursuant to department policy, and another
officer conducted an inventory search of the car. Riley was
arrested for possession of concealed and loaded firearms
when that search turned up two handguns under the car’s
hood.
An officer searched Riley incident to the arrest and found
items associated with the “Bloods” street gang. He also
seized a cell phone from Riley’s pants pocket. According
to Riley’s uncontradicted assertion, the phone was a “smart
phone,” a cell phone with a broad range of other functions
based on advanced computing capability, large storage
capacity, and Internet connectivity. The officer accessed
information on the phone and noticed that some words
(presumably in text messages or a contacts list) were
preceded by the letters “CK”—a label that, he believed,
stood for “Crip Killers,” a slang term for members of the
Bloods gang.
At the police station about two hours after the arrest, a
detective specializing in gangs further examined the
contents of the phone. The detective testified that he “went
through” Riley’s phone “looking for evidence, because ...
gang members will *2481 often video themselves with
guns or take pictures of themselves with the guns.” App. in
No. 13–132, p. 20. Although there was “a lot of stuff” on
the phone, particular files that “caught [the detective’s]
eye” included videos of young men sparring while
someone yelled encouragement using the moniker
“Blood.” Id., at 11–13. The police also found photographs
of Riley standing in front of a car they suspected had been
involved in a shooting a few weeks earlier. . . .
Prior to trial . . . , Riley moved to suppress all evidence that

the police had obtained from his cell phone. He contended
that the searches of his phone violated the Fourth
Amendment, because they had been performed without a
warrant and were not otherwise justified by exigent
circumstances….
II
The Fourth Amendment provides:
“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.”
[1] [2] [3] As the text makes clear, “the ultimate touchstone of
the Fourth Amendment is ‘reasonableness.’ ” Our cases
have determined that “[w]here a search is undertaken by
law enforcement officials to discover evidence of criminal
wrongdoing, ... reasonableness generally requires the
obtaining of a judicial warrant.” Such a warrant ensures
that the inferences to support a search are “drawn by a
neutral and detached magistrate instead of being judged by
the officer engaged in the often competitive enterprise of
ferreting out crime.” In the absence of a warrant, a search
is reasonable only if it falls within a specific exception to
the warrant requirement.
The two cases before us concern the reasonableness of a
warrantless search incident to a lawful arrest. . . . Although
the existence of the exception for such searches has been

recognized for a century, its scope has been debated for
nearly as long. . . . That debate has focused on the extent to
which officers may search property found on or near the
arrestee. Three related precedents set forth the rules
governing such searches:
The first, Chimel v. California, 395 U.S. 752, 89 S.Ct.
2034, 23 L.Ed.2d 685 (1969), laid the groundwork for most
of the existing search incident to arrest doctrine. Police
officers in that case arrested Chimel inside his home and
proceeded to search his entire three-bedroom house,
including the attic and garage. In particular rooms, they
also looked through the contents of drawers. Id., at 753–
754, 89 S.Ct. 2034.
© 2014 Thomson Reuters. No claim to original U.S.
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[4] The Court crafted the following rule for assessing the
reasonableness of a search incident to arrest:
“When an arrest is made, it is reasonable for the arresting
officer to search the person arrested in order to remove
any weapons that the latter might seek to use in order to
resist arrest or effect his escape. Otherwise, the officer’s
safety might well be endangered, and the arrest itself
frustrated. In addition, it is entirely reasonable for the
arresting officer to search for and seize any evidence on
the arrestee’s person in order to prevent its concealment
or destruction.... There is ample justification, therefore,
for a search of the arrestee’s person and the area ‘within
his immediate control’—construing that phrase to mean
the area from within which he might gain possession of
a weapon or destructible evidence.” Id., at 762–763, 89
S.Ct. 2034.
The extensive warrantless search of Chimel’s home did not
fit within this exception, because it was not needed to
protect officer safety or to preserve evidence. Id., at 763,
768, 89 S.Ct. 2034.
III
These cases require us to decide how the search incident to

arrest doctrine applies to modern cell phones, which are
now such a pervasive and insistent part of daily life that the
proverbial visitor from Mars might conclude they were an
important feature of human anatomy. A smart phone of the
sort taken from Riley was unheard of ten years ago; a
significant majority of American adults now own such
phones. See A. Smith, Pew Research Center, Smartphone
Ownership—2013 Update (June 5, 2013)....
A
We first consider each Chimel concern [officer safety
and/or destruction of evidence] in turn. . . .
1
[9] Digital data stored on a cell phone cannot itself be used
as a weapon to harm an arresting officer or to effectuate the
arrestee’s escape. Law enforcement officers remain free to
examine the physical aspects of a phone to ensure that it
will not be used as a weapon—say, to determine whether
there is a razor blade hidden between the phone and its
case. Once an officer has secured a phone and eliminated
any potential physical threats, however, data on the phone
can endanger no one. . . .
The United States and California both suggest that a search
of cell phone data might help ensure officer safety in more
indirect ways, for example by alerting officers that
confederates of the arrestee are headed to the scene. There
is undoubtedly a strong government interest in warning
officers about such possibilities, but neither the United
States nor California offers evidence to suggest that their
concerns are based on actual experience. The *2486
proposed consideration would also represent a broadening
of Chimel ‘s concern that an arrestee himself might grab a

weapon and use it against an officer “to resist arrest or
effect his escape.” 395 U.S., at 763, 89 S.Ct. 2034. And any
such threats from outside the arrest scene do not “lurk[ ] in
all custodial arrests.” Chadwick, 433 U.S., at 14–15, 97
S.Ct. 2476. Accordingly, the interest in protecting officer
safety does not justify dispensing with the warrant
requirement across the board. To the extent dangers to
arresting officers may be implicated in a particular way in
a particular case, they are better addressed through
consideration of case-specific exceptions to the warrant
requirement, such as the one for exigent circumstances….
2
The United States and California focus primarily on the
second Chimel rationale: preventing the destruction of
evidence.
Both Riley and Wurie concede that officers could have
seized and secured their cell phones to prevent destruction
of evidence while seeking a warrant. That is a sensible
concession. . . . And once law enforcement officers have
secured a cell phone, there is no longer any risk that the
arrestee himself will be able to delete incriminating data
from the phone.
The United States and California argue that information on
a cell phone may nevertheless be vulnerable to two types
of evidence destruction unique to digital data—remote
wiping and data encryption. Remote wiping occurs when a
phone, connected to a wireless network, receives a signal
that erases stored data. This can happen when a third party
sends a remote signal or when a phone is preprogrammed
to delete data upon entering or leaving certain geographic
areas (so-called “geofencing”). . . . . Encryption is a
security feature that some modern cell phones use in
addition to password protection. When such phones lock,

data becomes protected by sophisticated encryption that
renders a phone all but “unbreakable” unless police know
the password. Brief for United States as Amicus Curiae in
No. 13–132, p. 11.
As an initial matter, these broader concerns about the loss
of evidence are distinct from Chimel ‘s focus on a
defendant who responds to arrest by trying to conceal or
destroy evidence within his reach. See 395 U.S., at 763–
764, 89 S.Ct. 2034. With respect to remote wiping, the
Government’s primary concern turns on the actions of third
parties who are not present at the scene of arrest. And data
encryption is even further afield. There, the Government
focuses on the ordinary operation of a phone’s security
features, apart from any active attempt by a defendant or
his associates to conceal or destroy evidence upon arrest.
Government Works. 2

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We have also been given little reason to believe that either
problem is prevalent…. In any event, as to remote wiping,
law enforcement is not without specific means to address
the threat. Remote wiping can be fully prevented by
disconnecting a phone from the network. There are at least
two simple ways to do this: First, law enforcement officers
can turn the phone off or remove its battery. Second, if they
are concerned about encryption or other potential
problems, they can leave a phone powered on and place it
in an enclosure that isolates the phone from radio waves.
Such devices are commonly called “Faraday bags,” after
the English scientist Michael Faraday. They are essentially
sandwich bags made of aluminum foil: cheap, lightweight,
and easy to use…. In fact, a number of law enforcement
agencies around the country already encourage the use of
Faraday bags.
To the extent that law enforcement still has specific
concerns about the potential loss of evidence in a particular
case, there remain more targeted ways to address those
concerns. If “the police are truly confronted with a ‘now or
never’ situation,” …. they may be able to rely on exigent
circumstances to search the phone immediately…. Or, if
officers happen to seize a phone in an unlocked state, they
may be able to disable a phone’s automatic-lock feature in
order to prevent the phone from locking and encrypting
data….
B

[11] The search incident to arrest exception rests not only on
the heightened government interests at stake in a volatile
arrest situation, but also on an arrestee’s reduced privacy
interests upon being taken into police custody….
[12] The fact that an arrestee has diminished privacy
interests does not mean that the Fourth Amendment falls
out of the picture entirely. Not every search “is acceptable
solely because a person is in custody.” To the contrary,
when “privacy-related concerns are weighty enough” a
“search may require a warrant, notwithstanding the
diminished expectations of privacy of the arrestee.” Ibid.
One such example, of course, is Chimel. Chimel refused to
“characteriz[e] the invasion of privacy that results from a
top-to-bottom search of a man’s house as ‘minor.’ ”
Because a search of the arrestee’s entire house was a
substantial invasion beyond the arrest itself, the Court
concluded that a warrant was required.
[13] The United States asserts that a search of all data stored
on a cell phone is “materially indistinguishable” from
searches of [other] physical items. That is like saying a ride
on horseback is materially indistinguishable from a flight
to the moon. Both are ways of getting from point A to point
B, but little else justifies lumping them together….
1
Cell phones differ in both a quantitative and a qualitative
sense from other objects that might be kept on an arrestee’s
person. The term “cell phone” is itself misleading
shorthand; many of these devices are in fact minicomputers
that also happen to have the capacity to be used as a
telephone. They could just as easily be called cameras,
video players, rolodexes, calendars, tape recorders,
libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern
cell phones is their immense storage capacity. Before cell
phones, a search of a person was limited by physical
realities and tended as a general matter to constitute only a
narrow intrusion on privacy…. Most people cannot lug
around every piece of mail they have received for the past
several months, every picture they have taken, or every
book or article they have read—nor would they have any
reason to attempt to do so. And if they did, they would have
to drag behind them a trunk of the sort held to require a
search warrant in Chadwick, supra, rather than a container
the size of the cigarette package in Robinson.
But the possible intrusion on privacy is not physically
limited in the same way when it comes to cell phones. The
current top-selling smart phone has a standard capacity of
16 gigabytes (and is available with up to 64 gigabytes).
Sixteen gigabytes translates to millions of pages of text,
thousands of pictures, or hundreds of videos….
The storage capacity of cell phones has several interrelated
consequences for privacy. First, a cell phone collects in one
place many distinct types of information—an address, a
note, a prescription, a bank statement, a video—that reveal
much more in combination than any isolated record.
Second, a cell phone’s capacity allows even just one type
of information to convey far more than previously possible.
The sum of an individual’s private life can be reconstructed
through a thousand photographs labeled with dates,
locations, and descriptions; the same cannot be said of a
photograph or two of loved ones tucked into a wallet.
Third, the data on a phone can date back to the purchase of
the phone, or even earlier….
Finally, there is an element of pervasiveness that
characterizes cell phones but not physical records. Prior to

the digital age, people did not typically carry a cache of
sensitive personal information with them as they went
about their day. Now it is the person who is not carrying a
cell phone, with all that it contains, who is the exception.
According to one poll, nearly three-quarters of smart phone
users report being within five feet of their phones most of
the time, with 12% admitting that they even use their
phones in the shower. See Harris Interactive, 2013 Mobile
Government Works. 3
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Consumer Habits Study (June 2013). A decade ago police
officers searching an arrestee might have occasionally
stumbled across a highly personal item such as a diary.
But those discoveries were likely to be few and far
between. Today, by contrast, it is no exaggeration to say
that many of the more than 90% of American adults who
own a cell phone keep on their person a digital record of
nearly every aspect of their lives—from the mundane to the
intimate.…
Although the data stored on a cell phone is distinguished
from physical records by quantity alone, certain types of
data are also qualitatively different. An Internet search and
browsing history, for example, can be found on an Internet-
enabled phone and could reveal an individual’s private
interests or concerns—perhaps a search for certain
symptoms of disease, coupled with frequent visits to
WebMD. Data on a cell phone can also reveal where a
person has been. Historic location information is a standard
feature on many smart phones and can reconstruct
someone’s specific movements down to the minute, not
only around town but also within a particular building….
Mobile application software on a cell phone, or “apps,”
offer a range of tools for managing detailed information
about all aspects of a person’s life. There are apps for
Democratic Party news and Republican Party news; apps
for alcohol, drug, and gambling addictions; apps for
sharing prayer requests; apps for tracking pregnancy
symptoms; apps for planning your budget; apps for every
conceivable hobby or pastime; apps for improving your
romantic life. There are popular apps for buying or selling
just about anything, and the records of such transactions
may be accessible on the phone indefinitely. There are over
a million apps available in each of the two major app stores;
the phrase “there’s an app for that” is now part of the

popular lexicon. The average smart phone user has
installed 33 apps, which together can form a revealing
montage of the user’s life.
In 1926, Learned Hand observed (in an opinion later
quoted in Chimel ) that it is “a totally different thing to
search a man’s *2491 pockets and use against him what
they contain, from ransacking his house for everything
which may incriminate him.” If his pockets contain a cell
phone, however, that is no longer true. Indeed, a cell phone
search would typically expose to the government far more
than the most exhaustive search of a house: A phone not
only contains in digital form many sensitive records
previously found in the home; it also contains a broad array
of private information never found in a home in any form—
unless the phone is….
IV
We cannot deny that our decision today will have an impact
on the ability of law enforcement to combat crime. Cell
phones have become important tools in facilitating
coordination and communication among members of
criminal enterprises, and can provide valuable
incriminating information about dangerous criminals.
Privacy comes at a cost.
Our holding, of course, is not that the information on a cell
phone is immune from search; it is instead that a warrant is
generally required before such a search, even when a cell
phone is seized incident to arrest. Our cases have
historically recognized that the warrant requirement is “an
important working part of our machinery of government,”
not merely “an inconvenience to be somehow ‘weighed’

against the claims of police efficiency.” Coolidge v. New
Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d
564 (1971). Recent technological advances similar to those
discussed here have, in addition, made the process of
obtaining a warrant itself more efficient. See McNeely, 569
U.S., at ––––, 133 S.Ct., at 1561–1563; id., at ––––, 133
S.Ct., at 1573 (ROBERTS, C.J., concurring in part and
dissenting in part) (describing jurisdiction where “police
officers can e-mail warrant requests to judges’ iPads [and]
judges have signed such warrants and e-mailed them back
to officers in less than 15 minutes”)….
[19] In light of the availability of the exigent circumstances
exception, there is no reason to believe that law
enforcement officers will not be able to address some of
the more extreme hypotheticals that have been suggested:
a suspect texting an accomplice who, it is feared, is
preparing to detonate a bomb, or a child abductor who may
have information about the child’s location on his cell
phone. The defendants here recognize—indeed, they
stress—that such fact-specific threats may justify a
warrantless search of cell phone data. The critical point is
that, unlike the search incident to arrest exception, the
exigent circumstances exception requires a court to
examine whether an emergency justified a warrantless
search in each particular case. See McNeely, supra, at –––
–, 133 S.Ct., at 1559.
….Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal,
they hold *2495 for many Americans “the privacies of
life,” Boyd, supra, at 630, 6 S.Ct. 524. The fact that
technology now allows an individual to carry such
information in his hand does not make the information any
less worthy of the protection for which the Founders
fought. Our answer to the question of what police must do

before searching a cell phone seized incident to an arrest is
accordingly simple—get a warrant.
* * * * *
It is so ordered.
Government Works. 4
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08_1561
HOW TO BRIEF A CASE
CASE BRIEF FORMAT - IRAC METHOD
Use the following format for briefing of the cases:
1. Name of the case
2. Statement of Facts
3. Issue (Question)
4. Rule (Statement of the Law)
5. Application
6. Conclusion

NOTES
1. The statement of facts should be a short summary including
only the essential facts. In
most cases you read, the decision is based on a few determining
facts. DO NOT
COPY THE ENTIRE FACTUAL STATEMENT FROM THE
TEXT. State the
procedural facts (who is suing whom, the cause of action, the
remedy sought, the result
in the lower court or courts) - what we call the "posture of the
case."
2. The ISSUE or question of law is the central or focal legal
question in the case. The
student will have to determine the question of law by a careful
reading of the case.
NOTE: There may be more than one issue.
3. The RULE of law will generally be obvious. However, the
judge does not always state
the rule of law clearly. In some cases, it must be abstracted by
a careful reading of the
text. The question to ask is, "What legal principle does this
case stand for?" If there is
more than one issue, there should be a rule for each issue.
4. APPLYING the rule or rules of law to the facts of the case is
an important part of

briefing. Look for specific facts in the case to justify the
conclusion of the court. This
is the analytical aspect.
5. CONCLUSION - how the Court answers the problem.
6. All case briefs must be in writing and must contain ALL six
parts of the case brief
format. Be prepared to read the brief in class and answer
questions about it. The
original will be turned into the instructor. Keep a copy of your
brief.
ENGLAND v. S & M FOODS, INC.
511 So. 2d 1313 (La.Ct.App. 1987)
OPINION
[*1314] The plaintiff, Betty England, instituted this action
against defendants, S & M Foods,
Inc. and Larry Garley, to recover damages for a battery which
allegedly occurred in a work
related argument. Defendants appeal the trial court judgment
which awarded plaintiff $ 1,000.00
for humiliation and embarrassment as a result of the battery. We
affirm.
Plaintiff was employed by S & M Foods, Inc. at its Dairy Queen

restaurant in Tallulah, Louisiana
when the incident occurred. Larry Garley was the manager of
this restaurant. Garley became
upset when several hamburgers were incorrectly prepared
resulting in them being returned by the
customer who had ordered them. Garley allegedly expressed his
dissatisfaction by using profane
language and throwing a hamburger which hit plaintiff on the
leg.
The sole issue on appeal is whether the trial court erred in
concluding [**2] a battery was
committed.
Defendants contend no battery was committed because Garley
did not intend to inflict bodily
harm upon plaintiff. They argue Garley was disgusted about the
returned hamburgers and he
threw one hamburger toward a trash can and it inadvertently
splattered on plaintiff. Defendants
contend Garley did not intend to physically touch or injure
plaintiff and her embarrassment was
caused as much by her overreaction to the situation as by
Garley's conduct.
Plaintiff contends a battery may consist of forcible touching in
an angry, revengeful, rude or
insolent manner and damages are recoverable for humiliation
and mental distress. She asserts
Garley admitted he may have struck her with the hamburger, he
did not deny using profanity, he
was looking at her when he threw the hamburger and several
customers observed the incident.
Plaintiff contends the incident caused her to cry and become
emotionally upset. For these reasons,
plaintiff contends the judgment should be affirmed.

A battery is any intentional and unpermitted contact with the
plaintiff's person or anything
attached to it or practically identified with it. Vascocu v.
Singletary, 404 So.2d 301 (La. App.
[**3] 3d Cir. 1981), writ den., 409 So.2d 676 (La. 1981);
Prosser: Law of Torts, (4th Ed.), p. 34.
In the area of intentional torts, intent means the defendant
either desired to bring about the
physical results of his act or believed they were substantially
certain to follow from what he did.
Bazley v. Tortorich, 397 So.2d 475 (La. 1981); Monk v.
Veillon, 312 So.2d 377 (La. App. 3d Cir.
1975). In order to recover for a battery, the plaintiff must prove
by a preponderance of the
evidence that his damages resulted from an unprovoked attack
by the defendant. Gilliam v.
Williams, 451 So.2d 681 (La. App. 2d Cir. 1984); Hemsley v.
Sims, 325 So.2d 877 (La. App. 2d
Cir. 1976), writ den., 328 So.2d 374 (La. 1976).
Mental distress and humiliation in connection with a battery are
compensable items of damage.
Reck v. Stevens, 373 So.2d 498 (La. 1979); Squyres v. Phillips,
285 So.2d 337 (La. App. 3d Cir.
1973); Earle v. Wilhite, 299 So.2d 393 (La. App. 2d Cir. 1974).
The trial judge is in a better position to evaluate the credibility
of witnesses and the weight of
evidence than an appellate [*1315] court which does not see or
hear the witnesses. For this
reason, [**4] a reviewing court should adopt the trial court's
finding as its own in the absence of

clear error, even if other conclusions from the same evidence
are equally reasonable. Arceneaux
v. Domingue, 365 So.2d 1330 (La. 1978); Harris v. Pineset, 499
So.2d 499 (La. App. 2d Cir.
1986).
The trial judge found that Garley committed a battery by
throwing a hamburger which hit
plaintiff on the leg. The trial judge further found the incident
occurred in front of patrons and
other employees of Dairy Queen and caused plaintiff
humiliation and embarrassment. For the
reasons which follow, we find no clear error in these findings of
the trial judge.
Plaintiff testified Garley used profane language when he told
her to prepare the hamburgers
correctly. She stated Garley, while looking straight at her, then
threw the hamburger which hit her
on the leg. Plaintiff testified she argued with Garley about the
matter and several patrons
observed the incident which caused her to cry and become
emotionally upset.
Garley testified he threw the hamburger toward a trash can
because he was disgusted with the
way the hamburgers were being prepared. He stated he did not
see where the hamburger hit,
but [**5] noticed some of it splattered on plaintiff and Alice
Rash, another employee. Garley
testified he did not intend to hit anyone with the hamburger. He
stated he and plaintiff argued
about the matter and he told the plaintiff to go home.
Ms. Rash testified she did not see Garley throw the hamburger,
but observed a hamburger hit the
floor and it splattered mayonnaise and mustard on her and

plaintiff.
Two other employees who were working on the day of the
incident heard Garley's complaints
about the hamburgers going out wrong and saw a hamburger hit
the floor, but did not see Garley
throw it.
The totality of the evidence provided a substantial basis for the
trial judge to conclude Garley
must have been substantially certain the hamburger would hit
plaintiff or splatter on plaintiff
when he threw it toward her after becoming disgusted over the
manner in which the hamburgers
were being prepared. His contact with plaintiff was, therefore,
intentional and unpermitted and
constituted a battery. The incident occurred in front of several
patrons and other employees of
Dairy Queen and caused plaintiff embarrassment and
humiliation, although she suffered no
physical injuries.
The trial judge [**6] had the opportunity to see and hear the
witnesses as they testified. The
record shows no clear error in the trial judge's finding that a
battery was committed.
The judgment appealed is affirmed at defendants' costs.
AFFIRMED.

EXAMPLE CASE BRIEF
(1) Title: England v. S&M Foods, Inc., (La.Ct.App. 1987).
Judgment at trial for England; Defendants appeal.
(2) Facts: England was employed at a Dairy Queen Restaurant
owned by S&M Foods,
Inc. The restaurant manager, Garley, used profane language,
looked straight at
England and threw a hamburger which hit her on the leg.
Another employee,
Rash, testified that she did not see Garley throw the hamburger
but that it did hit
the floor and splatter mayonnaise and mustard on her and
England.
(3) Issue: Did Garley have the requisite intent for battery?
(4) Rule: A defendant has acted with intent if he or she either
desired to bring about the
physical results of his or her act or believed they were
substantially certain to
result from his or her actions.
(5) Analysis: Garley threw a hamburger in England's direction
either hitting her directly on

the leg (her testimony) or indirectly (splattering her with
mayonnaise and
mustard). He therefore acted with substantial certainty that
offensive touching of
plaintiff would occur.
6. Conclusion: Judgment affirmed; the contact was a battery
due to sufficient intent.
Katie Miller, Reference Librarian
Florida State University College of Law
How to brief a case

1
Why do I have to do this?
You’re not in law school so you normally just show up to class,
do some reading, take some notes during your professors
lectures. Why would you have to brief a case? (1) Prof. Prum is
requiring it, and (2) it is a good sneak peak into law school.

Law school has a different format. Usually your entire grade is
based off of one exam and your professors don’t just stand at
the front of the class to give you the answers to questions that
will appear on the exam.
2
In law school Professors expect that you read a case and create
a brief. They don’t collect the briefs, but it is expected that the
students are using them during class.
You used to the briefs to gain an understanding of the case and

it helps you prepare to discuss the case. The professor may use
the Socratic Method where a student is called upon to answer
questions and make the student think critically about the case.
Not opinions or argument or things found directly in the case
but a critical analysis or changing hypotheticals about the case.
To have this type of discussion you must really understand the
case and the briefs help you reach that point.
Reading and highlighting isn’t enough. Briefing slows you
down and makes your read slower, think about the materials.
Then you use your briefs to create outlines which you use to
study for your exam.
3
Professors expect it
Socratic Method
Active Learning & outlines
HOW LONG DO I HAVE TO DO THIS?

You start to figure out the important information and how in-
depth you need to go to understand the case. Some people brief
all the way through law school. Some may be able to create
shorter briefs or highlight and write in the margins. So the
process gets quicker and briefs may be shorter.
5
It is an evolutionary process
It gets easier
Briefs get shorter
What am I looking at?
Background info
(don’t worry about all of it yet)
Opinion from the court

One judge or a panel of judges
Trial court or appellate court
You’re given a case name by Professor Prum, you look it up,
but what are you actually looking at?
What you see on TV is usually a trial. At the conclusion of a
trial the judge may provide a written opinion. OR if the trial
court’s decision is appealed then there is another opinion from
an appellate court. Typically the cases you read in law school
are appellate court opinions. It’s the judges words telling you
who won and why. Could be one judge or a panel of judges.
Supreme Court of the US is an appellate court, with a panel of

judges.
6
An example from LexisNexis Academic.
Caption or case name – could be last names or names of a
corporation or state or people if it is a criminal case
Court – trial/appellate/location
Citation – is where to find it

Date
Other stuff – don’t worry about the other stuff. It is helpful for
doing legal research, not needed for this brief.
7
England v. S & M Foods, Inc., 511 So. 2d 1313 (La. Ct. App.
1987)
Volume #
Southern Reporter 2nd ed.
Page #

Taking a closer look at the citation, just these random numbers
and letters are enough to find any case. The first numbers are
telling you which volume the case is in. The strange letters are
an abbreviation of the title of the book. We call books that
contain opinions reporters. So the Southern Reporter 2nd
edition. Then the last number is the page number. So if you
walked in the library with just this info we could walk directly
to the books and find this case. But you won’t have to look in
the books, you will use the citation to find the cases on
LexisNexis Academic.
8

Another confusing aspect about the law- the publishers of the
reporters aren’t very good at geography. You can’t necessarily
tell the area of a case from the reporter. Kansas is in the
pacific? GA not in Southern, NY, OH, IL in north east?
9

To get an idea of what the books look like in the library, these
are some of the Southern Reporters. They wrap around to the
other side. There are 999 volumes in the second edition, then
they moved to the 3rd edition.
10
* Indicates the page number
If you ever see * * * it means the case was edited and part of
the opinion was removed
If you are reading a case on LexisNexis Academic and you see

symbols within the text, like a star it is just telling you the page
number that you would be on if you were reading it in the book.
*** means that part of the case was removed.
11
Ignore all this until you get to the word “opinion”.
12
Briefing a case

Reading a case
VS.
A brief is a
Organized summary of the important elements of a written
opinion
Summarize the parts to understand the whole
You all know how to read, but what is a brief? It is a summary
of the important parts of an opinion. You summarize the parts to
understand the whole. Have you ever heard on the news that the
president is getting briefed on an issue? Someone is just telling
him the important things he needs to know. A case brief is just

the important parts of a case.
13
Before you brief a case
Read the case carefully
Use a legal dictionary
Keep track of the parties
Take minimal notes (in pencil)
What does a brief include?
Rule
Holding

Facts
Analysis or application
Issue
Identification
Some people do them differently, different order or condense
areas, but generally they have the following headings:
15
NAME – parties, who’s who, (buyer, employer, etc.)
CITATION
YEAR

COURT
JUDGE
PAGE/SECTION OF BOOK
IDENTIFICATION
This seems like a lot of information but everything except the
judge is included within the full citation. For names you may
want to include their role in the lawsuit, so leasor, leasee,
defendant, plaintiff, husband, wife, etc.
16
FACTS

FOCUS ON MATERIAL FACTS (FACTS WITH LEGAL
SIGNIFICANCE WHICH INFLUENCE A COURT’S
REASONING)
A FACT IS LEGALLY SIGNIFICANT IF ALTERING OR
ELIMINATING THAT FACT WOULD CHANGE THE LEGAL
CONCLUSION OR RESULT OF THE CASE.
One of the biggest differences between lawyers and non-lawyers
is the ability to determine facts from material facts. So
something like the color of a car might not matter if the issue is
just whether someone ran a red light. So instead of dwelling on
things that don’t matter, you need to try and figure out the facts

that make a difference in the case. When you read the case, the
court has already gotten rid of a lot of the extra stuff, but still
contains things that are not legally significant.
17
PROCEDURAL HISTORY
(Part of facts)
ALL THESE FACTS OCCUR AFTER THE LAWSUIT IS
FILED
PARTY WHO BROUGHT ACTION
CLAIMS, DEFENSES, AND RELIEF SOUGHT
TRIAL COURT DISPOSITION
DISPOSITION OF INTERMEDIATE COURTS

Part of the facts is procedural history. Instead of the facts that
describe what happened that led to litigation, the procedural
history explains what has already happened in the court. So who
won or lost below if the opinion you are reading is an appeal.
Has the case gone up or down multiple times? The facts are
everything that led up to the litigation, the procedural history is
the history of the legal case.
18
ISSUE
MATERIAL QUESTION OF FACT AND/OR LAW THAT
ARISES IN A CASE

What is it that the parties want the court to answer? Why have
they entered into litigation?
Was the grocery store negligent in not cleaning up a spill that
resulted in an injury when the employee caused the spill? Does
the mother owe additional alimony if …
19
ISSUE
MUST BE STATED NARROWLY SO IT IDENTIFIES THE
LEGAL QUESTION THAT DISTINGUISHES THIS CASE
FROM OTHERS

20
ISSUE FORMATING
UNDER/DOES/WHEN FORMAT
UNDER [the law]
DOES [the legal question]
WHEN [important facts exist]

Under tort law of negligence is a grocery story liable when a
customer falls on a spill? Under criminal law does evidence get
excluded if police perform an illegal search and seizure?
21
RULE
THE LOGIC THAT SUPPORTS THE COURT’S DECISION
THE RULE OF LAW THAT THE COURT APPLIES
If premises are open to the public and owner has notice of a

spill it is negligent if the spill is not cleaned up.
22
RULE
ALLOWS YOU TO PREDICT HOW THE HOLDING MIGHT
BE INFLUENCED BY DIFFERENT FACTS
THE RULE OF LAW CAN COME FROM A STATUTE, CASE
RULE, REGULATION
23
More of a general statement that is applied to various facts.

RULE
IS THE “WHY” OF THE RESULT OF THE CASE
24
The issue is “what” the parties want the court to answer, the
rule is why the court answered it this way. There is a trick to
finding the rule in a case which we will go over in an example.
ANALYSIS or APPLICATION
APPLY THESE FACTS TO THIS LAW

25
This facts of this specific case applied to the general rule is the
analysis.
So for the tort case of a grocery store injury, if the case
involved an employee causing a spill and the rule required that
the store knew of the spill but didn’t clean it up, the analysis
would discuss the store’s liability based on the employee’s
knowledge.
THE HOLDING

ANSWER TO THE ISSUE
26
THE HOLDING
IDENTIFY THE CONSIDERATIONS THAT WERE
ESSENTIAL TO THE DECISION

27
THE HOLDING
WHEN THESE FACTS AND THIS LAW MEET, THEN THIS
RESULT

28
The result of the analysis. The answer to the issue. The store is
negligent and liable for the injury because it had notice and the
store must pay damages.
D.A.B.E., Inc. v. City of Toledo
Citation:
393 F.3d 692 (6th Cir. 2005).

29
Facts
City of Toledo passed an ordinance banning smoking in public
places including bars, restaurants, bowling alleys. A group of
restaurant and bar owners filed suit claiming that the ordinance
constituted a regulatory taking of their property in violation of
the U.S. Constitution and that the ordinance was in violation of
Ohio law.

30
Notice how extraneous facts are missing. It doesn’t talk about
whether the places are all ages or the operating hours because
those things are not legally significant.
Procedural History
Restaurant and bar owners preliminary and permanent
injunction was denied.

31
If you don’t know what an injunction is look it up! An official
legal dictionary is Black’s legal dictionary but there are plenty
of free legal dictionaries online if you just google legal terms.
D.A.B.E., Inc, v. City of Toledo
Issue (s)
Issue 1: Does the ordinance constitute a regulatory taking in
that it denies the property owner “economically viable use of
his land” in violation of the 5th Amendment to the U.S.
Constitution?

32
Look up regulatory taking or 5th amendment if you didn’t know
what they mean. 5th amendment protects against government
interference so no taking of private property for public use
without just compensation.
Rule (1)
An economic taking must almost completely deny a property
owner economic use of their land, losing customers or profit is
not enough.
It is a taking if it on its face, prevents beneficial use of the
land, categorically prohibits rather than merely regulate the
conditions under which operations may be conducted, and
purports to regulate alternative uses.

33
This is the test to determine whether something is a taking.
Application or Analysis
The plaintiffs have only provided allegations of loss or fear
that they will lose customers which is not enough to
demonstrate a taking.
A smoking room might require a financial investment but
that is not enough to constitute a taking. The owners could
make other use of their property.

34
Apply the facts to the rule.
Holding: AFFIRMED
The ordinance did not constitute a regulatory taking because it
only limited smoking, not prohibited it and plaintiffs may have
other economic uses for the property.

35
Agree with the result below. Reversed would mean the court
disagrees with the trial court and a different outcome then
below.
How do I find cases?
http://www.lib.fsu.edu/

Electronic copy available at: http://ssrn.com/abstract=1160925
Second Series • Autumn 2007 Volume 11 •
Number 1
Published by The Green Bag, Inc., in cooperation with the
George Mason University School of Law.
HOW TO READ A LEGAL OPINION
A GUIDE FOR NEW LAW STUDENTS
Orin S. Kerr
Copyright © 2007 Orin S. Kerr

11 GREEN BAG 2D 51
HOW TO READ A
LEGAL OPINION
A GUIDE FOR NEW LAW STUDENTS
Orin S. Kerr†
This essay is designed to help new law students prepare for the
first few weeks of class. It explains what judicial opinions are,
how they are structured, and what law students should look
for when reading them.
I. WHAT’S IN A LEGAL OPINION?

hen two people disagree and that disagreement leads to a
lawsuit, the lawsuit will sometimes end with a ruling by a
judge in favor of one side. The judge will explain the ruling in a
written document referred to as an “opinion.” The opinion
explains
what the case is about, discusses the relevant legal principles,
and
then applies the law to the facts to reach a ruling in favor of one
side
and against the other.
Modern judicial opinions reflect hundreds of years of history
and
practice. They usually follow a simple and predictable formula.
This
† Orin Kerr is a professor of law at the George Washington
University Law School. This essay
can be freely distributed for non-commercial uses under the
Creative Commons Attribution-
NonCommercial-NoDerivs 3.0 Unported license. For the terms
of the license, visit creative-
commons.org/licenses/by-nc-nd/3.0/legalcode.
W
Orin S. Kerr
52 11 GREEN BAG 2D
section takes you through the basic formula. It starts with the
intro-

ductory materials at the top of an opinion and then moves on to
the
body of the opinion.
The Caption
The first part of the case is the title of the case, known as the
“cap-
tion.” Examples include Brown v. Board of Education and
Miranda v.
Arizona. The caption usually tells you the last names of the
person
who brought the lawsuit and the person who is being sued.
These
two sides are often referred to as the “parties” or as the
“litigants” in
the case. For example, if Ms. Smith sues Mr. Jones, the case
caption
may be Smith v. Jones (or, depending on the court, Jones v.
Smith).
In criminal law, cases are brought by government prosecutors
on
behalf of the government itself. This means that the government
is
the named party. For example, if the federal government
charges
John Doe with a crime, the case caption will be United States v.
Doe.
If a state brings the charges instead, the caption will be State v.
Doe,
People v. Doe, or Commonwealth v. Doe, depending on the
practices of
that state.1
The Case Citation
Below the case name you will find some letters and numbers.

These
letters and numbers are the legal citation for the case. A citation
tells you the name of the court that decided the case, the law
book
in which the opinion was published, and the year in which the
court
decided the case. For example, “U.S. Supreme Court, 485 U.S.
759
(1988)” refers to a U.S. Supreme Court case decided in 1988
that
appears in Volume 485 of the United States Reports starting at
page
759.
The Author of the Opinion
The next information is the name of the judge who wrote the
opin-
ion. Most opinions assigned in law school were issued by courts
1 English criminal cases normally will be Rex v. Doe or Regina
v. Doe. Rex and
Regina aren’t the victims: the words are Latin for “King” and
“Queen.” During
the reign of a King, English courts use “Rex”; during the reign
of a Queen, they
switch to “Regina.”
How to Read a Legal Opinion
AUTUMN 2007 53
with multiple judges. The name tells you which judge wrote that

particular opinion. In older cases, the opinion often simply
states a
last name followed by the initial “J.” No, judges don’t all have
the
first initial “J.” The letter stands for “Judge” or “Justice,”
depending
on the court. On occasion, the opinion will use the Latin phrase
“per curiam” instead of a judge’s name. Per curiam means “by
the
court.” It signals that the opinion reflects a common view
among all
the judges rather than the writings of a specific judge.
The Facts of the Case
Now let’s move on to the opinion itself. The first part of the
body
of the opinion presents the facts of the case. In other words,
what
happened? The facts might be that Andy pulled out a gun and
shot
Bob. Or maybe Fred agreed to give Sally $100 and then changed
his
mind. Surprisingly, there are no particular rules for what facts a
judge must include in the fact section of an opinion. Sometimes
the
fact sections are long, and sometimes they are short. Sometimes
they are clear and accurate, and other times they are vague or
in-
complete.
Most discussions of the facts also cover the “procedural
history”
of the case. The procedural history explains how the legal
dispute
worked its way through the legal system to the court that is
issuing

the opinion. It will include various motions, hearings, and trials
that
occurred after the case was initially filed. Your civil procedure
class
is all about that kind of stuff; you should pay very close
attention to
the procedural history of cases when you read assignments for
your
civil procedure class. The procedural history of cases usually
will be
less important when you read a case for your other classes.
The Law of the Case
After the opinion presents the facts, it will then discuss the law.
Many opinions present the law in two stages. The first stage
dis-
cusses the general principles of law that are relevant to cases
such as
the one the court is deciding. This section might explore the
history
of a particular field of law or may include a discussion of past
cases
(known as “precedents”) that are related to the case the court is
de-
Orin S. Kerr
54 11 GREEN BAG 2D
ciding. This part of the opinion gives the reader background to
help
understand the context and significance of the court’s decision.
The
second stage of the legal section applies the general legal

principles
to the particular facts of the dispute. As you might guess, this
part is
in many ways the heart of the opinion: It gets to the bottom line
of
why the court is ruling for one side and against the other.
Concurring and/or Dissenting Opinions
Most of the opinions you read as a law student are “majority”
opin-
ions. When a group of judges get together to decide a case, they
vote on which side should win and also try to agree on a legal
ra-
tionale to explain why that side has won. A majority opinion is
an
opinion joined by the majority of judges on that court. Although
most decisions are unanimous, some cases are not. Some judges
may disagree and will write a separate opinion offering a
different
approach. Those opinions are called “concurring opinions” or
“dis-
senting opinions,” and they appear after the majority opinion. A
“concurring opinion” (sometimes just called a “concurrence”)
ex-
plains a vote in favor of the winning side but based on a
different
legal rationale. A “dissenting opinion” (sometimes just called a
“dis-
sent”) explains a vote in favor of the losing side.
II. COMMON LEGAL TERMS
FOUND IN OPINIONS
ow that you know what’s in a legal opinion, it’s time to learn
some of the common words you’ll find inside them. But first a

history lesson, for reasons that should be clear in a minute.
In 1066, William the Conqueror came across the English Chan-
nel from what is now France and conquered the land that is
today
called England. The conquering Normans spoke French and the
de-
feated Saxons spoke Old English. The Normans took over the
court
system, and their language became the language of the law. For
sev-
eral centuries after the French-speaking Normans took over
Eng-
land, lawyers and judges in English courts spoke in French.
When
English courts eventually returned to using English, they
continued
to use many French words.
N
AUTUMN 2007 55
Why should you care about this ancient history? The American
colonists considered themselves Englishmen, so they used the
Eng-
lish legal system and adopted its language. This means that
Ameri-
can legal opinions today are littered with weird French terms.
Ex-
amples include plaintiff, defendant, tort, contract, crime, judge,
attorney, counsel, court, verdict, party, appeal, evidence, and

jury.
These words are the everyday language of the American legal
sys-
tem. And they’re all from the French, brought to you by
William
the Conqueror in 1066.
This means that when you read a legal opinion, you’ll come
across a lot of foreign-sounding words to describe the court
system.
You need to learn all of these words eventually; you should read
cases with a legal dictionary nearby and should look up every
word
you don’t know. But this section will give you a head start by
intro-
ducing you to some of the most common words, many of which
(but not all) are French in origin.
Types of Disputes and the Names of Participants
There are two basic kinds of legal disputes: civil and criminal.
In a
civil case, one person files a lawsuit against another asking the
court
to order the other side to pay him money or to do or stop doing
something. An award of money is called “damages” and an
order to
do something or to refrain from doing something is called an
“in-
junction.” The person bringing the lawsuit is known as the
“plaintiff”
and the person sued is called the “defendant.”
In criminal cases, there is no plaintiff and no lawsuit. The role
of
a plaintiff is occupied by a government prosecutor. Instead of
filing

a lawsuit (or equivalently, “suing” someone), the prosecutor
files
criminal “charges.” Instead of asking for damages or an
injunction,
the prosecutor asks the court to punish the individual through
either
jail time or a fine. The government prosecutor is often referred
to
as “the state,” “the prosecution,” or simply “the government.”
The
person charged is called the defendant, just like the person sued
in a
civil case.
In legal disputes, each party ordinarily is represented by a law-
yer. Legal opinions use several different words for lawyers,
includ-
Orin S. Kerr
56 11 GREEN BAG 2D
ing “attorney” and “counsel.” There are some historical
differences
among these terms, but for the last century or so they have all
meant the same thing. When a lawyer addresses a judge in
court,
she will always address the judge as “your honor,” just like
lawyers
do in the movies. In legal opinions, however, judges will
usually
refer to themselves as “the Court.”
Terms in Appellate Litigation

Most opinions that you read in law school are appellate
opinions,
which means that they decide the outcome of appeals. An
“appeal” is
a legal proceeding that considers whether another court’s legal
deci-
sion was right or wrong. After a court has ruled for one side,
the
losing side may seek review of that decision by filing an appeal
be-
fore a higher court. The original court is usually known as the
trial
court, because that’s where the trial occurs if there is one. The
higher court is known as the appellate or appeals court, as it is
the
court that hears the appeal.
A single judge presides over trial court proceedings, but appel-
late cases are decided by panels of several judges. For example,
in
the federal court system, run by the United States government, a
single trial judge known as a District Court judge oversees the
trial
stage. Cases can be appealed to the next higher court, the Court
of
Appeals, where cases are decided by panels of three judges
known
as Circuit Court judges. A side that loses before the Circuit
Court
can seek review of that decision at the United States Supreme
Court. Supreme Court cases are decided by all nine judges. Su-
preme Court judges are called Justices instead of judges; there
is
one “Chief Justice” and the other eight are just plain “Justices”
(technically they are “Associate Justices,” but everyone just
calls

them “Justices”).
During the proceedings before the higher court, the party that
lost at the original court and is therefore filing the appeal is
usually
known as the “appellant.” The party that won in the lower court
and
must defend the lower court’s decision is known as the
“appellee”
(accent on the last syllable). Some older opinions may refer to
the
appellant as the “plaintiff in error” and the appellee as the
“defendant
AUTUMN 2007 57
in error.” Finally, some courts label an appeal as a “petition,”
and
require the losing party to petition the higher court for relief. In
these cases, the party that lost before the lower court and is
filing
the petition for review is called the “petitioner.” The party that
won
before the lower court and is responding to the petition in the
higher court is called the “respondent.”
Confused yet? You probably are, but don’t worry. You’ll read
so
many cases in the next few weeks that you’ll get used to all of
this
very soon.

III. WHAT YOU NEED TO LEARN FROM
READING A CASE
kay, so you’ve just read a case for class. You think you under-
stand it, but you’re not sure if you learned what your profes-
sor wanted you to learn. Here is what professors want students
to
know after reading a case assigned for class:
Know the Facts
Law professors love the facts. When they call on students in
class,
they typically begin by asking students to state the facts of a
particu-
lar case. Facts are important because law is often highly fact-
sensitive, which is a fancy way of saying that the proper legal
out-
come depends on the exact details of what happened. If you
don’t
know the facts, you can’t really understand the case and can’t
un-
derstand the law.
Most law students don’t appreciate the importance of the facts
when they read a case. Students think, “I’m in law school, not
fact
school; I want to know what the law is, not just what happened
in
this one case.” But trust me: the facts are really important.2
2 If you don’t believe me, you should take a look at a few law
school exams. It
turns out that the most common form of law school exam

question presents a
long description of a very particular set of facts. It then asks the
student to “spot”
and analyze the legal issues presented by those facts. These
exam questions are
known as “issue-spotters,” as they test the student’s ability to
understand the facts
and spot the legal issues they raise. As you might imagine,
doing well on an issue-
O
Orin S. Kerr
58 11 GREEN BAG 2D
Know the Specific Legal Arguments Made by the Parties
Lawsuits are disputes, and judges only issue opinions when two
par-
ties to a dispute disagree on a particular legal question. This
means
that legal opinions focus on resolving the parties’ very specific
dis-
agreement. The lawyers, not the judges, take the lead role in
fram-
ing the issues raised by a case.
In an appeal, for example, the lawyer for the appellant will ar-
ticulate specific ways in which the lower court was wrong. The
ap-
pellate court will then look at those arguments and either agree
or
disagree. (Now you can understand why people pay big bucks
for

top lawyers; the best lawyers are highly skilled at identifying
and
articulating their arguments to the court.) Because the lawyers
take
the lead role in framing the issues, you need to understand
exactly
what arguments the two sides were making.
Know the Disposition
The “disposition” of a case is the action the court took. It is
often
announced at the very end of the opinion. For example, an
appeals
court might “affirm” a lower court decision, upholding it, or it
might “reverse” the decision, ruling for the other side. Alterna-
tively, an appeals court might “vacate” the lower court decision,
wiping the lower-court decision off the books, and then
“remand”
the case, sending it back to the lower court for further
proceedings.
For now, you should keep in mind that when a higher court “af-
firms” it means that the lower court had it right (in result, if not
in
reasoning). Words like “reverse,” “remand,” and “vacate”
means
that the higher court though the lower court had it wrong.
Understand the Reasoning of the Majority Opinion
To understand the reasoning of an opinion, you should first
identify
the source of the law the judge applied. Some opinions interpret
the
Constitution, the founding charter of the government. Other
cases

spotter requires developing a careful and nuanced understanding
of the impor-
tance of the facts. The best way to prepare for that is to read the
fact sections of
your cases very carefully.
AUTUMN 2007 59
interpret “statutes,” which is a fancy name for written laws
passed
by legislative bodies such as Congress. Still other cases
interpret
“the common law,” which is a term that usually refers to the
body of
prior case decisions that derive ultimately from pre-1776
English
law that the Colonists brought over from England.3
In your first year, the opinions that you read in your Torts, Con-
tracts, and Property classes will mostly interpret the common
law.
Opinions in Criminal Law mostly interpret either the common
law
or statutes. Finally, opinions in your Civil Procedure casebook
will
mostly interpret statutory law or the Constitution. The source of
law is very important because American law follows a clear
hierar-
chy. Constitutional rules trump statutory (statute-based) rules,
and
statutory rules trump common law rules.

After you have identified the source of law, you should next
identify the method of reasoning that the court used to justify
its
decision. When a case is governed by a statute, for example, the
court usually will simply follow what the statute says. The
court’s
role is narrow in such settings because the legislature has
settled the
law. Similarly, when past courts have already answered similar
questions before, a court may conclude that it is required to
reach a
particular result because it is bound by the past precedents. This
is
an application of the judicial practice of “stare decisis,” an
abbrevia-
tion of a Latin phrase meaning “That which has been already
decided
should remain settled.”
In other settings, courts may justify their decisions on public
pol-
icy grounds. That is, they may pick the rule that they think is
the
best rule, and they may explain in the opinion why they think
that
rule is best. This is particularly likely in common law cases
where
judges are not bound by a statute or constitutional rule. Other
courts will rely on morality, fairness, or notions of justice to
justify
3 The phrase “common law” started being used about a thousand
years ago to refer
to laws that were common to all English citizens. Thus, the

word “common” in
the phrase “common law” means common in the sense of
“shared by all,” not
common in the sense of “not very special.” The “common law”
was announced in
judicial opinions. As a result, you will sometimes hear the
phrase “common law”
used to refer to areas of judge-made law as opposed to
legislatively-made law.
Orin S. Kerr
60 11 GREEN BAG 2D
their decisions. Many courts will mix and match, relying on
several
or even all of these justifications.
Understand the Significance of the Majority Opinion
Some opinions resolve the parties’ legal dispute by announcing
and
applying a clear rule of law that is new to that particular case.
That
rule is known as the “holding” of the case. Holdings are often
con-
trasted with “dicta” found in an opinion. Dicta refers to legal
state-
ments in the opinion not needed to resolve the dispute of the
par-
ties; the word is a pluralized abbreviation of the Latin phrase
“obiter
dictum,” which means “a remark by the way.”
When a court announces a clear holding, you should take a min-

ute to think about how the court’s rule would apply in other
situa-
tions. During class, professors like to pose “hypotheticals,” new
sets
of facts that are different from those found in the cases you
have
read. They do this for two reasons. First, it’s hard to understand
the
significance of a legal rule unless you think about how it might
apply
to lots of different situations. A rule might look good in one
setting,
but another set of facts might reveal a major problem or
ambiguity.
Second, judges often reason by “analogy,” which means a new
case
may be governed by an older case when the facts of the new
case are
similar to those of the older one. This raises the question, which
are
the legally relevant facts for this particular rule? The best way
to
evaluate this is to consider new sets of facts. You’ll spend a lot
of
time doing this in class, and you can get a head start on your
class
discussions by asking the hypotheticals on your own before
class
begins.
Finally, you should accept that some opinions are vague. Some-
times a court won’t explain its reasoning very well, and that
forces
us to try to figure out what the opinion means. You’ll look for
the
holding of the case but become frustrated because you can’t

find
one. It’s not your fault; some opinions are written in a narrow
way
so that there is no clear holding, and others are just poorly
reasoned
or written. Rather than trying to fill in the ambiguity with false
cer-
tainty, try embracing the ambiguity instead. One of the skills of
top-
flight lawyers is that they know what they don’t know: they
know
AUTUMN 2007 61
when the law is unclear. Indeed, this skill of identifying when a
problem is easy and when it is hard (in the sense of being
unsettled
or unresolved by the courts) is one of the keys to doing very
well in
law school. The best law students are the ones who recognize
and
identify these unsettled issues without pretending that they are
easy.
Understand Any Concurring and/or Dissenting Opinions
You probably won’t believe me at first, but concurrences and
dis-
sents are very important. You need to read them carefully. To
un-
derstand why, you need to appreciate that law is man-made, and
Anglo-American law has often been judge-made. Learning to
“think

like a lawyer” often means learning to think like a judge, which
means learning how to evaluate which rules and explanations
are
strong and which are weak. Courts occasionally say things that
are
silly, wrongheaded, or confused, and you need to think
independ-
ently about what judges say.
Concurring and dissenting opinions often do this work for you.
Casebook authors edit out any unimportant concurrences and
dis-
sents to keep the opinions short. When concurrences and
dissents
appear in a casebook, it signals that they offer some valuable
insights
and raise important arguments. Disagreement between the
majority
opinion and concurring or dissenting opinions often frames the
key
issue raised by the case; to understand the case, you need to
under-
stand the arguments offered in concurring and dissenting
opinions.
IV. WHY DO LAW PROFESSORS
USE THE CASE METHOD?
’ll conclude by stepping back and explaining why law
professors
bother with the case method. Every law student quickly realizes
that law school classes are very different from college classes.
Your
college professors probably stood at the podium and droned on
while you sat back in your chair, safe in your cocoon. You’re

now
starting law school, and it’s very different. You’re reading
about
actual cases, real-life disputes, and you’re trying to learn about
the
law by picking up bits and pieces of it from what the opinions
tell
I
Orin S. Kerr
62 11 GREEN BAG 2D
you. Even weirder, your professors are asking you questions
about
those opinions, getting everyone to join in a discussion about
them.
Why the difference?, you may be wondering. Why do law
schools
use the case method at all?
I think there are two major reasons, one historical and the other
practical.
The Historical Reason
The legal system that we have inherited from England is largely
judge-focused. The judges have made the law what it is through
their written opinions. To understand that law, we need to study
the actual decisions that the judges have written. Further, we
need
to learn to look at law the way that judges look at law. In our
sys-
tem of government, judges can only announce the law when

decid-
ing real disputes: they can’t just have a press conference and
an-
nounce a set of legal rules. (This is sometimes referred to as the
“case or controversy” requirement; a court has no power to
decide
an issue unless it is presented by an actual case or controversy
be-
fore the court.) To look at the law the way that judges do, we
need
to study actual cases and controversies, just like the judges. In
short,
we study real cases and disputes because real cases and disputes
his-
torically have been the primary source of law.
The Practical Reason
A second reason professors use the case method is that it
teaches an
essential skill for practicing lawyers. Lawyers represent clients,
and
clients will want to know how laws apply to them. To advise a
cli-
ent, a lawyer needs to understand exactly how an abstract rule
of
law will apply to the very specific situations a client might
encoun-
ter. This is more difficult than you might think, in part because
a
legal rule that sounds definite and clear in the abstract may
prove
murky in application. (For example, imagine you go to a public
park
and see a sign that says “No vehicles in the park.” That plainly
for-
bids an automobile, but what about bicycles, wheelchairs, toy

automobiles? What about airplanes? Ambulances? Are these
“vehi-
cles” for the purpose of the rule or not?) As a result, good
lawyers
AUTUMN 2007 63
need a vivid imagination; they need to imagine how rules might
ap-
ply, where they might be unclear, and where they might lead to
unexpected outcomes. The case method and the frequent use of
hypotheticals will help train your brain to think this way.
Learning
the law in light of concrete situations will help you deal with
par-
ticular facts you’ll encounter as a practicing lawyer.
Good luck!
Copyright © 2007 The Green Bag, Inc. “The Green Bag” and
the logo are our registered trademarks.

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