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Just a quick question. (might be a dumb one)

I've read that I need to argue both sides on the analysis part of the answer. So, should I use the dissents and the historical cases for that?
If not, do historical cases matter at all? Should I even include them in my outline?

I see that are key cases that are the main ones and they are applicable nowadays, but what about the other ones?

Sorry if this is too basic, I've started to read gtm and the part it says old rule/new rule just seems odd on some classes, like conlaw 2 for ex.

any insight is appreciated. gracias.

Looking at dissents for ideas cant hurt. Maybe someone smarter than I could chime in.

fl0 wrote:Just a quick question. (might be a dumb one)

I've read that I need to argue both sides on the analysis part of the answer. So, should I use the dissents and the historical cases for that?
If not, do historical cases matter at all? Should I even include them in my outline?

I see that are key cases that are the main ones and they are applicable nowadays, but what about the other ones?

Sorry if this is too basic, I've started to read gtm and the part it says old rule/new rule just seems odd on some classes, like conlaw 2 for ex.

any insight is appreciated. gracias.

Talk to your professor about what he wants specifically.

Some professors don't want to see you spend a bunch of time analyzing issues based on clearly dead caselaw. The professor probably doesn't want you discussing Pennoyer in Civ Pro, or Lockner in Con Law. But definitely ask your prof.

In a class like Crim or Torts, where common law is used and states are all over the place, you generally mention the old rule because you'll be in some fake jurisdiction with unknown law.

Dissents may be useful to draw examples when the fact pattern is pretty different from the case. You'd argue that you can distinguish the case from the current situation and then say, we'll maybe the court would follow the dissents rules because this a clearly different issue.

unless your professor says otherwise, there is no need to use cases at all (except in con law). dissenting opinions can be helpful to see how people make conflicting arguments, but you're going to get a better than average grade if you can do that yourself, in the moment, based on the unique facts of the hypo in the exam. Law professors aren't really good at a lot of things, but they are pretty good at being able to come up with insane hypotheticals jam-packed with wild facts and crazy situations, such that it will be impossible to simply say "i would argue (X historical case) and alternatively, (Y dissenting opinion.)

Thank you so much, that was actually pretty useful

Dissents and historical cases might be flourish on your exam - they can lend support and credibility to an otherwise valid but distant argument - but are close to never the main thrust of a question or worth a good amount of points.

Two specific cases come to mind

Always discuss the possible Palsgraf Cardozo v. Andrews proximate cause outcomes.

Always discuss possible outcomes based on the differing opinions of stream of commerce theory from Asahi.

I never read the dissent.

If you are still absolutely lost when you read the majority opinion and casebriefs.com hasnt helped you for some reason, read the dissent to see how the majority argued the side. sometimes the dissent will summarize the majority's holding ( at least how they interpreted it) which can help, if you dont understand what the majority is saying ( heres to you scalia). since its only in the minority-it doesnt really matter much. HOWEVER, in CON LAW for some cases and trends, the dissent will provide a window for why the majority overturns their reasoning later on. if your con lawl professor stresses how and why constitutional issues emerge and evolve- you may need to spend more time on the dissent than just a half hearted skim.


but unless your prof explictly states that you need to know the dissent- dont take too much into it.

The only dissent I've ever been expected to be familiar with for a final exam was palsgraf.

Never used dissents or historical cases except where they actually had some bearing on how a modern case could come out (e.g., Palsgraf in Torts or Rapanos in Environmental). Hell, I don't think I've even mentioned more than 4-5 cases explicitly by name in all my finals combined. Could see this being a bit different for con law though.

3|ink wrote:The only dissent I've ever been expected to be familiar with for a final exam was palsgraf.

This is my general understanding as well. Cardozo - Issue of Duty of Care, Andrews - Proximate causation and zone of danger.

Dissents? On an exam?

(I'm being half serious...)