History and the Law

We are not learning the way things are. We are learning where the law has come from. As Oliver Holmes put it, the law consists of predictions about what courts will do. This conception of law has deep implications for its study.

There are those who emphasize their attention on legal principles and analysis of the intricacies of issues that are presented by particular fact patterns. Those who subscribe to this method are pragmatists who want to learn only the information that will be on their test. Their method involves identifying material that will yield points on an exam, and, more importantly, ignoring material that will not be tested on the exam. There is much to be said for such a technique while a 1L. Grades reign supreme at this stage.

If only there was a list of material that will be tested, and a list of material that will not! In the absence of such a list, a student who wishes to only focus on tested material will have to rely on his/her ability to distinguish these two categories of information from each other. And what basis does the 1L have for distinguishing? None!

But there is something similar to this imaginary list of tested material--history. Almost all of the major principles and rules of the common law are over 300 years old, and students and academics have been grappling with the issues presented by them for at least this long. By studying the evolution and historical debates of the laws (including the study of laws that are obsolete), one gets an intuitive sense of which sorts of problems are more intractable than others. In addition, one sees the analytical tools of legal scholarship in action. More importantly, one is able to see the professor presenting problems of legal history, so that one gets an intuitive sense of which sorts of problems are of most interest to a professor.

Reading cases is not enough. Each case is a treasure trove of arguments, disputes and sub-issues, each of which is fodder for future exam questions. The key is to dig through history and collect each important issue and organize it into a functional history. The diligent reader must not be allowed to passively read each case, guess at the general jist of the issue, and copy and paste the most authoritative line of the opinion into the "reasoning" section of a brief. It does not have to take a long time, but it must be done right. There are no answers in the opinions, but there are tons of questions.

And each of these questions is worth a point on the exam. Hopefully, this blog will help me to practice articulating the questions presented in each case.