(1)
Obviously it is better to read cases that bear directly and specifically on
an issue, than those which deal with in only in a peripheral way.
(2)
Major or landmark cases tend to be useful for two reasons. First, they
show a major change in the law. Second, very often they will give a
comprehensive survey and a good summary and analysis of previous cases
(although keep in mind that analysis of one case by another is inevitably
selective and usually partisan).
(3)
Later cases tend to be more useful than prior cases because they
overlay, take up and almost internalise the earlier law. This, however, is only a
tendency.
Technique
Even when you come to read cases remember that some cases will give a
better return than others. For example, if a case has settled a point (to the
extent that any point is settled) there may be little return from reading the case.
By contrast you will receive great benefit from reading a case that has opened
up a lot of litigation arguing about the rule that it expounds.
A compromise which saves time but also checks what a case has to offer is to
skim read the case looking for
relevant material or points of interest. This is
most feasible for a person who has a reasonable familiarity with the area of law
involved because they will have a better ability to judge the importance and
relevance of what they read.
Tip
Finally, it is necessary to make a point by way of a tip which is in contrast to
the tenor of the advice so far about being selective in reading cases and to read
and to rely on second hand accounts of a case in other cases or in textbooks.
While this has advantages, it
has a great disadvantage in that a
misapprehension, once arisen, can easily survive and be transmitted.
783
This
misapprehension may be apparent on the surface. A common indicator is that
the rule is elusive, hard to define and hard to understand from accounts of the
rule in textbooks articles and cases. Or the misapprehension may be hidden.
Whether visible or not, where there is a misapprehension there is always the
possibility that going back to the earlier cases in detail will give you a fresh and
different insight into a point of law.
783
An example is the survival and persistent use in administrative law of the
concept of legitimate expectation long after the reason for it had passed and
doctrinal developments had displaced it –
see Christopher Enright Federal
Administrative Law par [33.65]-[33.89].
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