Reading and Applying Case Law: A View from the Appellate Branch
Spring 2011: Professor Occhialino and Justice Ransom
This is a two-hour seminar offered to fourteen first-year students by Professor Occhialino and Justice Richard Ransom, a retired Chief Justice of the New Mexico Supreme Court. The students read groups of published opinions authored by Justice Ransom on such issues as duty under tort law, strict liability, the drafting of jury instructions for successive torts, implied employment contracts, the parol evidence rule in ambiguous contracts, statutory construction, and liberty interests under state constitutional law. Familiarity with these subjects aids the students' progress in the seminar, but neither facility with, nor the teaching of, substantive law is the purpose of the seminar.
The purpose of the seminar is to teach the reader of case law to understand, evaluate, and articulate the rule of law or principle for which the case is read in full. This is a little different than reading casebook extracts for black letter law. Principles of sound reasoning are applied to analyze the rationale of the case. Under the "law of rationality," conclusions must be justified by relevant evidence that is adequate to its purpose. Relevant "evidence," of course, may include statutes, prior authority, principles of law, legal doctrines, and public policy. Ambiguity and vagueness are identified. The student learns to succinctly translate the opinion's essential position into the student's own words and graphics.
The course meets for one hour on Tuesday and Thursday. The first week is devoted to the exploration of various approaches to judging, using terms such as "values," "beliefs," "pragmatism," and "positivism." At the core of this discussion is jurisprudential responsibility for predictability and fairness (treating like cases alike), adherence to principle, and the importance of plausible rationale, both for the loosing party and for the establishment of legal principle. The purpose of the introductory session is to introduce the judge in the context of judicial selection and independence, diversity in how judges may judge, and the temporizing effect of collegiality on a multi-judge appellate court.
On Thursdays, the students are assigned a scenario and problem to solve by reading a specific one or two of the majority opinions, special concurrences, or dissents authored by Justice Ransom. Each student responds by Monday with a five-hundred-word memo, more or less (six-hundred words maximum), and explanatory graphic when appropriate. The student also turns in at that time a list of questions arising from the reading of the assigned case or cases. These are questions of terminology, procedure or judicial practice the student would like discussed, regardless of whether germane to the problem assigned. These questions are reserved for the next Thursday class.
At the Tuesday class, Professor Occhialino engages the students in Socratic dialogue to "think the thing" of the cases that have been read to resolve the assigned problem. He teases out the students' understanding of legal terminology, rules, and black letter law. He develops graphics (outline, diagram or flow chart) by which the pertinent issues can be seen in relation to the general rules, exceptions, and legal terminology that inform the resolution of the problem. Importantly, with respect to the rationale of the assigned case, Professor Occhialino explores whether conclusions are adequately justified and whether the opinion has evaded principles of sound reasoning. Ambiguity and vagueness are identified.
Justice Ransom provides his own exemplar memo or graphic in response to the problem addressed in the student memos. He will, from time to time, distribute internal court memos that give insight into the structure of the opinion in response to the briefs and oral argument of the parties, the conferences of the court following oral argument, responses to the circulation of opinion drafts, and the intra-chambers work of the judge and the judge's clerks.
On Thursday, there may be a reprise of the topics addressed - or missed - on Tuesday. Then, the students' written questions are addressed. Time is reserved for the students each to ask orally one question yet unanswered to the student's satisfaction.
The course is graded based on a student's weekly written assignments, class participation. and a final examination.