Thursday, July 17, 2008

Legal Archaeology

[A] reported case does in some ways resemble those traces of past human activity – crop marks, post holes, the footings of walls, pipe stems, pottery shards, kitchen middens, and so forth, from which the archaeologist attempts, by excavation, scientific testing, comparison, and analysis to reconstruct and make sense of the past.

Cases need to be treated as what they are, fragments of antiquity, and we need, like archaeologists, gently to free these fragments from the overburden of legal dogmatics, and try, by relating them to the evidence, which has to be sought outside the law library, to make sense of them as events in history and incidents in the evolution of the law.
– Brian Simpson, Leading Cases in the Common Law via Tax Stories by Paul Caron
For some good tips on how to be a legal archaeologist, read this excellent piece by Orin Kerr: How to Read a Legal Opinion: A Guide for New Law Students

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