I devote this seminar to the refinement of the fundamental lawyering skill of reading and using cases. We will read together a set of cases drawn from various legal domains. In each instance we will discern the court’s choice and its rationale for that choice. We will subject that rationale to rigorous scrutiny, seeing more clearly its weaknesses and its strengths. We will also develop and explore the range of plausible future meanings for each text, i.e., the so-called “holdings.” In addition to the group seminar sessions, each student will write a paper that analyzes one or more cases in this thorough and critical manner.
The English historian, S.F.C. Milsom, addressed the conundrum of the common law system thus: “How can a system of law, a system of ideas whose hypothesis it is that rules are constant, adapt itself to a changing world? It has not been the ordered development of the jurist or the legislator … It has been the rough free enterprise in argument of practitioners … and the strength of the system has been in the doggedness, always insensitive and often unscrupulous, with which ideas have been used as weapons … The life of the common law has been in the unceasing abuse of its elementary ideas.” In this sense the seminar offers the opportunity for each student to become more proficient in rendering such abuse.