Law Schedule of Classes

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285.33 sec. 001 - How to Think and Write Like a Judge (Fall 2023)

Instructor: Daniel Kolkey  
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Units: 1
Grading Designation: Credit Only
Mode of Instruction: In-Person


Tu 3:35 PM - 5:25 PM
Location: Law 107
From August 22, 2023
To October 03, 2023

Course Start: August 22, 2023
Course End: October 03, 2023
Class Number: 32197

Enrollment info:
Enrolled: 7
Waitlisted: 0
Enroll Limit: 18
As of: 02/07 02:03 PM

� When I was first appointed to the appellate bench, I recognized that while law school taught the tools for analyzing and arguing the law, it did not teach a methodology for determining how much weight to give to precedent, legislative history, the text of the constitutional or statutory provision at issue, the canons of statutory construction, or the underlying public policy. As a new justice, I therefore set out to read judicial biographies of famous judges to determine how the greatest of our jurists handled their job and then developed my own methodology. This seven- session course will teach students how to analyze a case as an appellate judge would, the different methodologies that have been utilized by different judges for deciding a case, how a judge organizes and presents his or her analysis in an opinion, and how an attorney should present his or her arguments in a brief in light of how judges ordinarily approach their cases. We will do this by analyzing and discussing the methodologies and analytical and literary techniques of some of the most respected U.S. jurists by reviewing their opinions. These jurists will include Oliver Wendell Holmes, Benjamin Cardozo, Robert Jackson, Antonin Scalia, Stephen Breyer, Elena Kagan, Hugo Black, and Richard Posner. In this connection, we will also discuss rhetorical devices that judges (as well as orators and even lyricists) use in their opinions, which can also be used in briefs. And in the process, students will learn a range of legal subjects and some legal history. Whether you aspire to be a law clerk, a judge, a litigator, or a transactional attorney, this course will make you more effective in your work. Even a transactional attorney must understand how a judge may interpret the resulting documentation.

Daniel M. Kolkey served as an associate justice on the California Court of Appeal, Third Appellate District; as counsel to California Governor Pete Wilson; as an advisor to two other state governors; and as a negotiator for Governor Arnold Schwarzenegger. He is a retired partner of Gibson, Dunn & Crutcher LLP, where he worked for 32 years, and is currently President of the California Supreme Court Historical Society.

Attendance at the first class is mandatory for all currently enrolled and waitlisted students; any currently enrolled or waitlisted students who are not present on the first day of class (without prior permission of the instructor) will be dropped. The instructor will continue to take attendance throughout the add/drop period and anyone who moves off the waitlist into the class must continue to attend or have prior permission of the instructor in order not to be dropped.

�There are no prerequisites, but I recommend that students have previously taken courses in constitutional and criminal law.

Exam Notes: (P) Final paper  
Course Category: Public Law and Policy

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A reader will be used in this class.

Required Books are in blue

  • Active Liberty
    Stephen Breyer
    Edition: First edition
    Publisher: Alfred A. Knopf
    e-Book Available: Yes
    Price: $3.99
    Note: prices are sampled from internet bookstores. Law-school Bookstore prices are unavailable at this time.
  • The Essential Scalia
    Jeffrey Sutton
    Edition: first edition
    Publisher: Crown Forum
    e-Book Available: Yes
    Copyright Date: To Be Determined
    Price: 8.99
    Note: prices are sampled from internet bookstores. Law-school Bookstore prices are unavailable at this time.

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