As you progress through your degree, it is important that you continue to develop your reading skills. Fajans and Falk identify three stages of advanced reading:
- Reading for the explicit meaning of the text
- Reading for ‘unselfconscious response and self-aware reflection’
- Synthesising apparently contradictory ideas of concepts that arise during the reading
Fajans and Falk argue that most students never advance beyond the first stage. This limits their understanding of texts to merely being able to identify the key elements – issues, reasoning, decision. Improving your reading will not only improve your understanding of the law, but also enable you to write stronger essays and exams.
Because of the rule of precedent, it is easy to forget that judicial decisions are simply a genre of persuasive writing, and can be analysed in much the same way as any other text. The following guide will provide a few methods for analysing both judicial decisions and articles.
It is never a good idea to jump straight into reading. It only takes 5 minutes to prepare to read a text – but the time spent will significantly improve your understanding. Always aim to schedule reading during times when you are likely to have more energy. These times include just after you wake up, and just after meals. Before beginning you need to think about why you are reading the text – what do you want to get out of it? What are you expected to understand by the time you have finished? Usually you will simply want to understand why the text has been included in your reading guide. The simplest guide to understanding this is to look at the introduction and questions in your reading guide that relate to the particular text. It is a good idea to use:
- The reading guide questions,
- The subject topic that the text falls under,
- The topic introduction in the reading guide, and
- The title of the text.
You should also think about how the reading might relate to other readings that you have already done. Before beginning the complete reading, briefly skim the headings and conclusion to get an overview of what the text will be arguing.
If you have done your pre-reading, you will find the text much easier to engage with. Here are a few additional techniques that will improve your understanding and analysis.
Verbalising and Annotating
As you read, verbalise your thoughts, questions, or ideas. Even if you don’t write your responses down, simply asking questions as you go can be a powerful tool. Fajans and Falk argue that verbalising responses to a text(which they call thinking-aloud protocols) can be one of the simplest and most effective techniques for advancing your reading comprehension. Verbalisation should be unmediated – don’t think about the quality of your ideas or censor yourself. The purpose of the process is to enable you to reflect on your own response to the text, and to monitor your comprehension. It is also helpful to write your thoughts in the margins of the text or in your notes. This will be beneficial when you return to the text later, as it can help you to find important ideas again.
Monitoring for Comprehension
As you read a text, you should ask yourself questions about what the text is saying. You should write down any questions and your responses to them on the text, or in your notes – these will form the basis of your critical analysis. McKinney recommends that you continuously compare what you are reading with your pre-reading. If the text doesn’t match your theory, you should think about why this is happening, and consider updating your theory to reflect what you are reading.
Reading legal texts is not a linear process. Reading the headings and conclusion first is a useful way to get an overview of the text. Then you can begin a more complete reading. As you read through the text, it is important to move back and forth through the text to clear up any questions that you have. If you notice that something does not match your theory of what the author is arguing, or appears to contradict something that the author has said earlier, don’t just attempt to work through it. Instead, turn back to the relevant section and try to resolve the problem. This process will be significantly easier if you have annotated the text. This is closely linked to monitoring comprehension.
There are a number of questions that you should ask as you are reading any legal text. These questions include:
- What is the court saying? What persuasive techniques are they using to say it?
- What assumptions are being made?
- Do I understand what the text is arguing? If not, why not?
- Do I understand why I am reading this text?
- What arguments do I agree with? Why do I agree with them?
- What arguments do I disagree with? Why do I disagree with them?
- How can I critique the arguments that I disagree with? How might someone else critique the arguments that I agree with?
- Can these arguments, counter-arguments and criticisms be reconciled in any way?
- What was the context in which the text was written? What happened before or after the text was written?
- What discussions or critiques have been omitted from the text?
You may choose to write out notes on the text as you go, or you might prefer to write your notes later. Either way, it is important to return to the reading after discussing it in class. At this point you should briefly re-read your notes (or the text), and check whether you are able to answer all of the questions that you raised during the verbalisation process. If you still have any questions, try to find time to discuss your questions with your classmates, or ask your professor. You should also write a summary of the main argument of the text (if you haven’t already).
Finally, you should decide where the reading fits in the overall scheme of the course. Consider its relationship with the topic, other texts, and the course as a whole. Consider how the text responds to other texts, or how it might augment or overturn the legal rules that you have learned. If it is a case, think about the historical significance – does it agree with the other cases, or overturn them? Does it signify a shift in legal thinking? How could it be reconciled with other, apparently contradictory cases? Is the reasoning better or worse than the reasoning in similar cases? Include the answers to these questions in your notes.
A reading checklist summarising these points is available here.
- Fajans, Elizabeth and Mary R Falk, ‘Against the Tyranny of the Paraphrase: Talking Back to Texts’ (1993) 78 Cornell Law Review 163, have written a fantastic article on how to develop better critical reading skills, which is available for free online.
- Schwartz, Michael Hunter, Expert Learning for Law Students (Carolina Academic Press, 2nd ed, 2008)
- McKinney, Ruth Ann, Reading Like a Lawyer: Time-Saving Strategies for Reading Law like an Expert (Carolina Academic Press, 2005)
- Sternglass, Marilyn S, ‘Writing Based on Reading’ in Bruce T Petersen (ed), Convergences: Transactions in Reading and Writing (National Council of Teachers of English, 1986) 151