How to read for this course

You are not expected to read every word of every assigned opinion. You are expected to read what our discussion will actually need — and to know how to find it fast. That skill is the point. It is also, more or less, the job.

Why the whole opinion is assigned anyway

There is an obvious objection to what I just said. If you are not expected to read all of it, why assign all of it? Why not print the four paragraphs that matter and be done?

Because triage is not something you can do to an extract. Deciding what matters is the work, and it requires the whole document in front of you, the same way it will when a partner drops a ninety-page opinion on your desk on a Thursday afternoon and wants to know by Friday whether it helps. A casebook that has already made every one of those decisions for you teaches you to read what an editor thought was important. It does not teach you to decide.

So the opinions on this site are assigned whole, or nearly whole, and I am telling you in advance that reading them cover to cover, word by word, at the same speed throughout, is the wrong way to do it — and the way most first-year students do it in September.

Three passes

First pass: orient. Two to four minutes. Who decided this, when, and what happened? Read the caption, the court, the date, the author, the vote. Then read the last paragraph of the majority — the disposition — before you read the first. Find the procedural posture: who sued whom, who won below, what is being reviewed. You now know the shape of the thing. Almost everything you read afterwards will make more sense because you know where it is going.

Second pass: locate. Five to ten minutes. Find the holding and the reasoning that produces it. Opinions are built, not poured; use the structure. The Court's own Roman numerals tell you how the author divided the problem. The question presented is usually stated in the first two paragraphs. The holding usually announces itself — we hold, we therefore conclude, the judgment is reversed. Mark those passages. If there is a dissent, find the one paragraph where the dissent says what it thinks the majority got wrong. That paragraph is worth more than the other twenty.

Third pass: work. Everything left. Read closely — slowly, with a pen — only the passages that bear on what this module is doing. The module page tells you what that is: the Topics line and the short paragraph under the module title are not decoration. They are my statement of what we are going to do with these cases. Read them before the cases, not after.

Headnotes, and how lawyers actually use them

Every case you read on Westlaw or Lexis arrives wrapped in editorial apparatus. On Westlaw these are headnotes tied to the topic-and-key-number classification; on Lexis they are headnotes drawn, as a rule, from the opinion's own language and linked back to the passage they came from. Supreme Court slip opinions carry a Syllabus prepared by the Reporter of Decisions, which announces its own status in a note at the top: it "constitutes no part of the opinion of the Court."

You will not find any of that apparatus on this site. That is deliberate, and it is not because headnotes are bad. It is because I want you to use them the way a lawyer uses them, and a lawyer uses them as an index.

The technique is simple and you should adopt it this week. Open the case on Westlaw or Lexis. Read the headnotes — quickly, all of them — to build a map of what issues this opinion decides and roughly where in the opinion each one lives. Pick the two or three that matter for our module. Then jump to the passage the headnote points at and read the Court's own words. The headnote's job ends the moment it has delivered you to the right paragraph.

Three rules follow, and they are not negotiable in this course:

Never cite a headnote. It is not law and no court wrote it. Never quote one, in a brief, an exam answer, or a class response. And never let a headnote be your account of what a case holds, because a headnote is an editor's compression, and compression loses exactly the things we spend class time on: what the Court conspicuously declined to decide, what the majority gave up to hold its fifth vote, which sentence the dissent is really attacking, and where the reasoning is thinnest. No headnote will tell you that Marshall answers his three questions in an order that is itself the argument. You have to read the opinion to see it.

Use the Supreme Court's Syllabus the same way, with the same discipline. It is a superb map and a poor substitute.

Worked examples from the first modules

Marbury v. Madison (Module 1). Read this one nearly in full — it is the exception, and it is the reason the exception exists. But read it structurally. Marshall poses three questions: has the applicant a right to the commission, do the laws afford him a remedy, and is the remedy a mandamus from this Court. Notice that he takes them in that order, and that the order is doing work he never announces: by the time he reaches the jurisdictional question he has already spent twenty pages telling the Secretary of State he broke the law. Read the passage beginning "It is emphatically the province and duty of the judicial department to say what the law is" with real care; read the discussion of mandamus practice quickly. In class we will spend most of our time on the seam between question two and question three.

Martin v. Hunter's Lessee (Module 1). Read this one for a single question: why may this Court review the judgment of a state court? Story's answer is structural, and it is compact. The Fairfax land title, the treaties, the tangle of Virginia procedure — know enough to say who wins and why the case got here, and no more. If you find yourself thirty minutes into the chain of conveyances, you have lost the thread. This is the clearest case in the course for practicing the headnote-as-index move.

Trump v. United States (Module 1, edited). The Court builds a three-tier framework: absolute immunity for core constitutional powers, presumptive immunity for other official acts, none for unofficial ones. Read the construction of that framework closely. Then read the application to one of the alleged acts — any one — closely enough to see the framework operate. Skim the remaining applications on a first read; come back to them if the framework starts to feel unstable, which it should. Sotomayor's dissent: find the paragraph identifying what she says the majority has actually authorized.

Lochner v. New York (Module 2). The opposite instruction. Read all of it, including both dissents, and read them slowly. The whole case is under twenty pages and there is no filler in any of the three opinions. Peckham, Harlan, and Holmes are doing three different things with the same record, and the differences are the material. Holmes's dissent is two pages and you should be able to reconstruct it from memory.

McCulloch v. Maryland (Module 2). Two questions, and they are not the same size. The first — may Congress incorporate a bank — is the long one and the important one; read the necessary-and-proper analysis closely, especially the passage beginning "Let the end be legitimate." The second — may Maryland tax the bank — is much shorter and turns on a proposition Marshall states almost as an aphorism. Budget accordingly. Roughly three-quarters of your time on the first question.

Jacobson v. Massachusetts (Module 2). Short, and worth reading in full, but read it with a specific question in hand: what, exactly, is the Court saying the State may do, and what is the limit it is careful to preserve? That limit is why the case is still cited.

What "responsible for" means

The syllabus says you are responsible for all assigned materials, including the notes, questions and commentary, whether or not we reach them in class. That is true and it stands. But responsibility for an opinion means the holding, the reasoning that produces it, and the disagreement about it. It does not mean every footnote and every string cite. Responsibility for a course-authored note is tighter, because the note is already compressed — there is nothing in it that is not load-bearing. Read the notes closely. Triage the opinions.

If you have twenty minutes and a case you have not opened

It happens. Here is the protocol, and it is better than skipping: read the disposition, then the question presented, then the holding paragraph, then the single strongest paragraph of the dissent, then the module's Topics line again. Four minutes each. You will not be able to defend the case's reasoning under pressure, and I may find that out. But you will be able to follow the discussion and learn something from it, which is not true of the alternative.

Do not let this become the method. It is the fallback.