Abstract: INTRODUCTION Judges produce opinions for numerous purposes. A judicial opinion decides a case and informs the parties whether they won or lost. But in a common law system, the most important purpose of the opinion, particularly the appellate opinion, is to educate prospective litigants, lawyers, and lower court judges about the law: what it is and how it applies to a specific set of facts. Without this purpose, courts could more quickly and efficiently issue one-sentence rulings rather than set forth reasons. By issuing opinions, courts give actors a means of evaluating whether their actions are within the bounds of law. Under this predictive conception, when an opinion suggests a change in how a particular legal regime will apply in the future, one would expect individuals to adjust their behavior. The judicial system is leveraged in that appellate courts issue opinions in a small percentage of disputes; however, the explanations for how and why the appellate court decided particular cases are used to predict outcomes across a range of varying factual scenarios. The importance of judicial opinions to legal education cannot be overstated. Case law is the dominant teaching tool for the vast majority of law school classes, especially in the first year. Law professors parse the language and logic of opinions in critical analyses of the answers to legal questions. The higher the court, the more care is taken in parsing the texts that the court produces, and the wording of Supreme Court opinions is sometimes given the type of care ordinarily reserved for religious texts. Arguably, the primary skill that law schools teach (thinking like a lawyer) is the ability to carefully parse judicial opinions.1 By contrast, other materials that might be thought to contain information about the operation of law- statutes, contracts, property deeds, and academic studies-are typically used only as supplements to the cases. An often unstated assumption of scholarship and education is that the reasons the judges offer in judicial opinions are central to understanding law.2 Indeed, the sometimes heated debates between traditional legal scholars and political scientists center on what to make of the reasons offered by judges.3 Although social scientists are generally skeptical of the importance that traditional legal scholars attach to the textual parsing of judicial opinions, the social scientists who study law also use opinions as sources of insight. For example, some scholars use opinions as evidence of underlying preferences and institutional dynamics.4 Yet whether judicial opinions explain why an outcome is dictated by the law or reveal underlying policy views that justify and legitimize the exercise of judicial authority, they tell consumers of law what they should expect courts to do in the future. But are the pronouncements in these appellate opinions in fact an accurate reflection of the law as understood in the world beyond the courthouse? In our study of the effects of a particular employment discrimination case in the Nevada casino industry, we found that judicial opinions had little salience in the communities that we had expected to be affected by the court's reasoning. And while opinions may help predict how lower courts will act in the future, they do not tell us whether and which cases will be brought to court with sufficient resources and legal skill to allow for a meaningful resolution on the merits. In light of these limitations on the power of appellate opinions, we should reconsider their central role in our understanding of the relationship between law and those governed by it. We can better understand law by moving beyond our court-centric perspective to a view that includes community understanding. Two classic studies, Stewart Macaulay's examination of how business people in Wisconsin understood their contracts5 and Robert Ellickson's study of property disputes among neighboring ranchers in Shasta County, California,6 examined the influence of formal law in social context. …
Publication Year: 2011
Publication Date: 2011-04-01
Language: en
Type: article
Access and Citation
Cited By Count: 4
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