Chapter 30
Reading Cases
Introduction
Delving
Poring
Introduction
As with all legal reading there are two aspects to reading a case – delving for
specific information and poring over it. We read cases in the law reports
because they make common law and interpret common law and statutes so
that the case is a source of law and therefore a precedent. In this instance a
reader pores over the text of the case to extract the ratio decidendi and to
understand the reasoning process that led the court to decide the case as it
did. Sometimes, though, we delve into a case for specific information such as
the name of another case, the name of a statute or a reference to a secondary
source.
Delving
A reader may wish to delve into a case for any of several types of information.
Some major possibilities are as follows:
(1)
They may have located a case on a topic and they wish to say how the
case before them responds to this earlier case. There are of course dedicated
research tools, annotations and citators,
which
give this information in broad
form. For example
they indicate whether the case was applied, overruled,
doubted or just considered. But the reader may not have access to these or
may want a more precise knowledge than is given by these specialised tools.
(2)
They are searching for cases on a subject. Having found the case that is
now in front of them, the lawyer delves into it to find more cases.
(3)
They are searching for legislation (a statute or delegated legislation). One
research technique for finding legislation on a subject is to locate a case on the
subject then to delve into the case for possible references to any relevant
legislation.
(4)
They are searching for references to secondary or tertiary sources of
law such as texts or articles. (i) They may need these for their own sake. In
this regard the case is being used as a finding aid.
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(ii) They may seek these
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In England and Australia, however, the utility of cases for this task is
diminished by the prevalent and frustrating habit of judges giving only an
incomplete citation of secondary sources -
for example, they give only the
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