如何阅读案例

单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2018/3/7,#,Case Reading,Case,Reading Skills,“PreviewDoReview” is your basic learning strategy.,After creating a positive learning environment, you are ready to read,cases.,Preview each case.,Instead of plunging into a case, preview it. Get a feel for the case without bogging down in specifics. Try these three strategies for getting a preview and use the one that works best for you.,(1)First,and last paragraphs: Read the beginning and end of the case, just enough to get a taste for the parties, the dispute, and the holding.,(2)First,sentence of each paragraph: Read the first paragraph, first sentence of each succeeding paragraph, and the last paragraph. In addition to getting the basic plot, you will be introduced to the courts reasoning.,(3)Story,line reading: Skim the case quickly for the basic story line. Connect the story to the subject you are studying.,Ask questions.,Based on your preview, ask yourself questions.,What,is this case about?,Why,did the winning party prevail?,What,were the key facts?,How,does the case relate to the casebook topic?,Read each case.,After your preview, read through the case carefully and actively, try to answer the questions that you posed to yourself. Take notes in the margins if this helps you.,Review,. You will have two stages of review.,1) Briefing the case.,What are the facts the court found most important in reaching their decision?,What rule of law should you understand from the case?,What types of legal reasoning did the court rely on in coming to a decision?,2) Reviewing after briefing. After you brief all your cases, spend two minutes thinking about how each case you read relates to the subject matter of the class.,Does one case illustrate a majority and the other a minority rule? Traditional rule and modern rule? Rule and exception?,This review will help you remember the cases and also acts as a preview for the class.,案,例的组成部分,1,、,Case Name,(,案例名称,)eg: Smith v. John, v. is short for versus.(,诉,),2,、,Court rendering the opinion (,判决法院,)eg: New Jersey Supreme Court(,新泽西最高法院,),3,、,Citation,(,卷宗号、案号,)eg:93 N. J.324, 461 A. 2d 138(1983),，这说明该案出自,新西汇编,第,93,卷，第,324,页，以及,大西洋汇编,第二辑第,138,页，该案件判决于,1983,年。像这种指明两个或两个以上出处的卷宗号叫做,parallel citation(an additional reference to a case that has been reported in more than more reporter,平行卷宗号,),Citation,Citation is a reference to a legal authority,布莱克法律词典,中的定义：,A reference to a legal precedent or authority, such as a case, statute, or treaties, that either substantiates or contradicts a given position.,案,例之中的卷宗号通常包括以下几个部分：,A) the names of the parties involved in the lawsuit,B) the volume number of the reporter containing the full text of the case,C) the abbreviated name of that case reporter,D) the page number on which the case begins,E) the year the case was decided,F) the name of the court deciding the case,案例之中的卷宗号通常包括以下几个部分：,A) the names of the parties involved in the lawsuit,（案件双方当事人姓名,）,B) the volume number of the reporter containing the full text of the case,（案件全文的汇编卷号）,C) the abbreviated name of that case reporter,（案例汇编的缩写名称）,D) the page number on which the case begins,（案例开始的页码数）,E) the year the case was decided,（案例判决年份）,F) the name of the court deciding the case,（案例判决法院）,卷宗号之中的缩略码,A,.,Atlantic Reporter,大西洋汇编,A.2d.,Atlantic Reporter, 2nd Series,大西洋汇编第二辑,Cal.Rep.,California Reporter,加利福尼亚州汇编,F.,Federal Reporter,联邦汇编,F.2d.,Federal Reporter , 2nd Series,联邦汇编第二辑,F.3d.,Federal Reporter , 3rd Series,联邦汇编第三辑,F. Supp.,Federal Supplement,联邦补充案例,L.Ed.U.S.,U.S. Supreme Court Decisions, Lawyers Edition,美国最高法院案例汇编，律师版,L.Ed. 2d.U.S.,U.S. Supreme Court Decisions, Lawyers Edition, 2nd Series,美国最高法院案例汇编，律师版第二辑,N.E.,Northeastern Reporter,东北汇编,N.E.2d.,Northeastern Repoter,2nd Series,东北汇编第二辑,卷宗号之中的缩略码,N.W.,Northwestern Reporter,西北汇编,N.W.2d,Northwestern Reporter ,2nd Series,西北汇编第二辑,N.Y.S.,New York Supplement,纽约补充案例,N.Y.S. 2d,New York Supplement , 2nd Series,纽约补充案例第二辑,S.Ct.,Supreme Court Reporter,最高法院案例汇编,S.E.,Southeastern Reporter,东南汇编,S.E. 2d,Southeastern Reporter ,2nd Series,东南汇编第二辑,So.,Southern Reporter,南方汇编,So. 2d.,Southern Reporter ,2nd Series,南方汇编第二辑,S.W.,Southwestern Reporter,西南汇编,S.W. 2d.,Southwestern Reporter ,2nd Series,西南汇编第二辑,U.S.,United States Reports,美国案例汇编,案例的组成部分,4,、,Justice wrote the opinion(,主审法官姓名,),5,、,Opinion(stating the issue raised, describing the parties and facts, discussing the relevant law, and rendering judgment,判决书,),判决,书是整个案例的主体部分，其中包括法律争议（,Issue,）、双方当事人情况、事实经过、判决采用的相关法律以及判决结果。,注,意：在阅读判决书的过程中，要注意的几点有,(1),时态方面：主审法官的意见用现在时态，前审法院的意见用过去时态。,(2),主审法官的意见是法院意见。,(3),除了法院外还有两种意见，它们被称为,dissenting opinion or dissent(,反对意见是指,opinion offered,by a judge disagreeing with,the majority panel of judges conclusion ),和,concurring opinion(,配合意见是指,opinion written by a judge agreeing with the majoritys conclusion but not its reasoning),。,The Structure of a Judicial Opinion,(1)Headnote,(2)Caption,(3)Citation,(4)Author of Opinion,(5)Facts,(6)Issues,(7)Procedural History,(8)Legal Reasoning,(9)Holding/Decision,(10)Concurrence/Dissent,Headnote,Headnote is a summary of the key legal points determined by a court, which appears just above each decision in the published reports of cases.,Caption,Caption is the title of the case, which tells you who was involved in the case and reflects the last names of the two sides to the dispute. These two sides are often refered to as the parties or as the litigants.,Eg: Smith v. Jones (Mr. Smith sues Mr. Jones),Citation,略,Author of opinion,The author of opinion is the name of the judge who wrote the opinion. The name tells you which judge wrote that particular opinion. In most cases, the opinion often simply states a last name followed by the initial “J”. “J” stands for “Judge” or “Justice”, depending on the court (eg: Holmes, J. is Judge Holmes or Justice Holmes). Some courts call their judge “Chancellors”, so the initial will be a “C” instead of a “J”, some variations include “C.J.” for Chief Judge, “V.C.” for Vice Chancellor.,Facts,The facts of the case are probably the most important aspects of a legal case, because law is often fact sensitive. Facts can tell you the judges understanding of the case and what the judge though was an important aspect of the case that help the judge reach the decision,Issues,Issue is the matter of dispute in a legal controversy or lawsuit. The issue of a case is usually fairly easy to spot. Sometimes the judge writing the opinion will refer to the “issue presented”, “question presented” or “the factual issues” by the case. There is always at least one issue in a case. The issue of a case should always be phrased in the form of a question. An example of an issue would be:,May a police officer enter a home to search when he hears someone yelling for help?,Procedural history,Most state systems and federal system have three different courts. The lowest court is the trial court. The intermediate courts are called the Court of Appeal. The procedural history usually consists of various hearings, trials, and proceedings that went on in the case before the court.,State Trial,C,ourt,Court of Appeal,State Supreme Court,U.S. Supreme Court,Legal Reasoning,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 interpret “statutes,” which is a fancy name for written laws passed by legislative bodies such as Congress,.,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, the court usually will simply follow what the statute says. The courts 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.,Holding/Decision,The holding is the core legal principle that the case represents. It is the conclusion that the case stands for, the courts resolution of the key legal dispute that it faced. It usually appears at the end of the main opinion, and tells you what action the court is taking with the case.,Concurrence/Dissent,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 rationale to explain why that side has won. A majority opinion is an opinion joined by the majority of judges on that court. Whenever there are judges who do not agree with holding or who do not reach their holding through the same reasoning, they will write a separate opinion offering a different approach. Those opinions are known as “concurring opinions” or “dissenting opinions”, they appear after the majority opinion.,例子,United States v. Morgan, 298U.S.468, 56 S.Ct. 906, 80L.Ed.1288 (1936),Plaintiff versus Defendant,Citation,（卷宗号）：,The official citation for this Supreme Court decision is,298U.S.468,which translates as Volume 298 United States Reports Page 468,Parallel citations,（平行汇编）：,(1)56 S.Ct. 906,Volume56 Supreme Court Reporter Page906;,(2) 80L.Ed.1288,Volume80 Supreme Court Decisions, Lawyers Edition, Page1288,案例的组成部分,6,、,Votes of the Court(,法庭投票,) eg:,在七名大法官审理的情况下，有几名法官的意见是维持原判（,affirmance,），有几名法官的意见是撤销原判、发回重审（,reversal and remandment,）,