Preparing a Casenote

Professor Tobi TaborSummer 2006

Legal Scholarship is Critical Writing

“[A]lmost all legal scholarship is implicitly directed to the decision-makers in our society—legislative and executive as well as judicial.”

Legal scholarship is “characteristically normative (informed by a social goal) and prescriptive (recommending or disapproving a means to that goal.”

Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 3 (3rd ed. 2005).

Characteristics of Good Scholarly Work*

Original Says something not said before

Comprehensive “provides sufficient background [so] any law-

school-educated reader [can] understand . . . and evaluate the writer’s thesis.”

“takes the reader from the known (background) to the unknown (the writer’s analysis).”

*Fajans & Falk at 5.

Good Scholarly Writing Factually Correct Logical Analysis

“well and sufficiently reasoned and divided into mutually exclusive, yet related sections”

Clear and readable Somewhat formal style Not pompous or colloquial

Steps Involved Tasks Required

1. Inspiration2. Research-

preliminary3. Research-close to

complete4. Drafting5. More research6. Revising7. Polishing

Fajans & Falk at 21.

1. Outline/rough draft

2. Complete draft3. Good draft4. Final product

Mary Barnard Ray & Barbara J. Cox, Beyond the Basics 406-20 (2d ed. 2003). You may not write all these stages, but you will need to address all tasks.

Steps & Tasks Integrated1. Inspiration

2. Research-preliminary

3. Research-close to complete

4. DraftingOutline/Rough DraftComplete Draft

5. More Research6. Revising

Good Draft7. Polishing

Final Product

Step 1-Your inspiration* Unresolved or evolving areas of law provide

most potential Disputes about the law—split in federal

circuits Case before SCOTUS Disputes about direction law should

take Something worth writing about—new issue,

rule no longer practical Hone it down to manageable size and scope

*Fajans & Falk at 21.

How to Narrow Topic: Border Security--Minutemen, National Guard, US Border Patrol Ask series of questions

Implications of these groups together on the borders? Are there analogous situations? Effect on Canadian border? Who is affected by this vigilance?

Up and down ladder of abstraction: macro focus (greatest level of generality) to micro focus (greatest detail & specificity)

What is the genesis of this border security phenomenon?

What is the hierarchy among groups? How will they interact, division of labor?

Fajans & Falk at 20-22.

Impact of Unauthorized Immigrants Eight states are the primary destinations for

unauthorized immigrants, but several other states have substantial unauthorized populations.

300,000-2.3 million: Ariz., Calif., Fla., Ill., N.J., N.Y., N.C., Tex.

200,000-250,000: Colo., Ga., Md., Mass., Va., Wash.

Eighteen states and D.C. have 85,000 or fewer.

Border Security

Decide whether primarily legal or primarily interdisciplinary What is source of power for three groups? How does mix of groups impact our overall

sense of societal security? Make comparisons

Compare effect on highly populated/less populated states

Unauthorized immigrants Border security

Determine causation What is likely effect of enhanced border

security, mixing military and civilian?

Your original thesis

Descriptive—the world as it was/is Historical question A claim about a law’s effects How courts are interpreting the law

Prescriptive—what should be done How a law should be interpreted What new law should be enacted How a statute or common-law rule should be

changedProbably a combination of both descriptive and

prescriptive.

* Eugene Volokh, Academic Legal Writing 9 (2d ed. 2005).

Characteristics of Claim

“Good Legal Scholarship should (1) make a claim that is (2) novel, (3) nonobvious, (4) useful, (5) sound, and (6) seen by the reader to be novel, nonobvious, useful, and sound.”*

You identify a problem—doctrinal, empirical, historical—your claim is your proposed solution to the problem.

* Eugene Volokh, Academic Legal Writing 9 (2d ed. 2005). Id.

Your Claim

You should be able to state your claim in In one sentence.*“Statute X does not provide adequate

protection to those it was enacted to serve because ….”

“This law is likely to have the following side effects . . . , and therefore should be modified to provide . . . .”

* Volokh at 9.

Step 2-Preliminary Research Check periodicals to see if your original thesis

has already been addressed. List major points—roadmap for research Develop search terms No specific starting point

Secondary sources Known case or statute

Annotated statutes Shepardize—headnote numbers Key Cite—Key numbers legislative history

Make a Research Plan Has someone else looked into this? Build checks into your research so you

don’t stop too soon Logical and orderly documentation of

what you have done What courts, governments, branches of

government have authority to speak on the issues?

Different places to find that authority?

Read critically while researching

Take good notes so you don’t lose your original reactions to material.

Don’t read just to summarize. Find the holes in what you’re

reading, the inconsistent reasoning, conflict with precedent (will help you focus on thesis and analyze topic critically).

Step 3—Research-close to complete What sources might you be looking for? Statutes and regulations: U.S. & foreign Treaties, Conventions, Protocols Cases Secondary sources: academic

perspective, practical perspective

Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir.), cert. granted, 126 S. Ct. 622 (2005)* Afghani militia forces captured Hamdan in Afghanistan

in November 2001. They turned him over to the U.S. military, and he was taken to Guantanamo Bay in Cuba.

On July 3, 2003, the President determined “that there is reason to believe that [Hamdan] was a member of al Qaeda or was otherwise involved in terrorism directed against the United States.”

This finding brought Hamdan within the President's November 13, 2001, Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833, and Hamdan was designated for trial before a military commission.

* Facts are modified from the court’s opinion (3 slides)

In December 2003, Hamdan was placed in solitary confinement. That same month, he was appointed counsel, initially only for plea negotiation.

In April 2004, Hamdan filed petition for habeas corpus.

While his petition was pending, the government formally charged him with conspiracy to commit attacks on civilians, murder and destruction of property by an unprivileged belligerent, and terrorism.

Hamdan's trial was to be before a military commission, which consisted of three officers of the rank of colonel.

He received a formal hearing before a Combatant Status Review Tribunal, which affirmed his status as an enemy combatant for whom continued detention was required.

On November 8, 2004, the district court granted Hamdan's petition in part, enjoining the Secretary of Defense from conducting any further military commission proceedings against Hamdan.

Issues* Does the President have the power to

establish military commissions to try petitioner and others similarly situated for alleged war crimes in the “war on terror”?

Does the 1949 Geneva Convention and its Common Article 3 requirement of sentencing by “regularly constituted courts” protect persons from such commissions?

* Issues here and on slides later in presentation are from http://supct.law,cornell.edu/supct/cert/05-184.html

Where would you start? Thesis/claim?

Narrow topic Questions Macro-micro Interdisciplinary/law only Comparisons Causation

Research sources? Who has authority Where find sources

Lines of analysis?

Step 4-Drafting: How Do the Materials Fit Together? Organize your materials into issues,

lines of cases and commentary, pro and con

If you have a good grasp of a thesis, you may want to start with an outline

Try a non-linear outline if you can’t decide how concepts fit together

If you’re not ready for an outline, do “freewriting”—just “dump” all the thoughts you have onto the paper—from there you can derive an outline

The Parts of Your paper: start writing anywhere—end with 4 parts

Scholarly papers have a basic four-part structure Introduction Background Analysis Conclusion

Introduction Goal--persuade people to read further Introduce topic & why it’s important Describe subject of paper

Give enough background to make significance of your subject obvious

State your claim Provide an explicit roadmap 5-7.5% of paper

Samples

Compare Solomon Amendment note to Women in Workplace article

Background

Genesis of subject Changes during development Reasons for changes How things are now Reasons for further change(?)

Background Have to assume law-educated reader is

relatively uninformed in the area Not tedious with detail but specific as to

what is necessary for topic Be comprehensive judiciously Synthesize precedents No commentary, critique

Organization of Background

Topically re issue/strand of analysis

Chronologically w/in topic Jurisdictionally w/in topic

Courts Branches of government

Analysis

The most important section (1) original thoughts (2) tightly, logically, and

creatively reasoned Keep reader’s interest Build to a conclusion

Analysis Your critique and commentary Assess development of relevant

case law: how law got where it is, where it should go, why, how?

Usually several strands of analysis Background & Analysis 85-90% of

paper: split 40/60 up to 50/50

Prove your thesis Prove your prescriptive proposal

both doctrinally and as a matter of policy.

Be concrete Confront other side’s arguments,

but focus on your own.

*Volokh, supra, at 35-38.

Organization of Analysis Large-scale

Divide into major issues/strands of analysis—use informative headings

Subdivide--subheadings Order logically—headings & subheadings

should be logical outline Small-scale

Introduce and conclude on each issue Focus on your arguments Rebut major opposing arguments

Different Organizational PatternsAlternating PatternThesis StatementOverview -- big picture1. Point 1

Alternative AAlternative B

2. Point 2Alternative AAlternative B

Comparison & Evaluation of Alternatives

Divided PatternThesis Statement1. Alternative A

1. Point 12. Point 23. Point 34. Comparative overview of

points2. Alternative B

1. Point 12. Point 23. Point 34. Comparative overview of

pointsComparison & Evaluation of

Alternatives

Hamdan v. Rumsfeld Does the President have the power to establish

military commissions to try petitioner and others similarly situated for alleged war crimes in the “war on terror”?

Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224

Uniform Code of Military Justice Inherent powers of executive (Commander-in-chief,

war powers, etc.); limit commissions to occupied territories where regular U.S. courts not accessible

Does the 1949 Geneva Convention and its Common Article 3 requirement of sentencing by “regularly constituted courts” protect persons from such commissions?

Unless determined not POW must be tried in same courts as US soldiers

Gen. Con. give rise to individually enforceable rights through habeas corpus

Same safeguards as “regularly constituted court” Judicial interpretation of U.S. treaty obligations—

infringe on executive powers Reciprocity treaty rights, human rights

Conclusion

Restate thesis Summarize major points “[M]ay suggest related issues or

ramifications, inviting the reader to further reflection.”*

5-7.5% of paper

*Fajans & Falk at 9.

Step 5—More Research As you draft, research to fill

analytical gaps, provide examples, etc.

Continuous process Don’t let research prevent or

interrupt drafting

Plagiarism

intent not required

plagiarism is still plagiarism, even when it is inadvertent product of careless research (i.e., save those pages from which you expect to quote, note pinpoint cites)

Plagiarism: Passing Off Another’s Work as Yours

UHLC Honor Code: “[Q]uoting, paraphrasing, or otherwise using another's words or ideas as one's own without crediting the source in a way that clearly indicates the nature and extent of the source's contribution to the student's work.”◊

What is a paraphrase? Putting another’s ideas and words into your

own words Not just changing a few words here and

there, even if you cite the source—if you change only a few words, you still need to quote the author’s words

Write your paraphrase relying on your memory, without looking at the original. Then compare “for content, accuracy, and mistakenly borrowed phrases.”*

*http://owl.english.purdue.edu/handouts/research/r_plagiar.html (10/01/02)

How Do I Use Quotes?

Always provide an introduction that reflects significance of quote: Not “court held,” “commentator said”

Minimize use of quotes, particularly block quotes.

Quotes supplement text; they don’t supplant, i.e., if you take the quotes out, you still have clear, logically developed text.

Footnotes have three functions: provide authority for assertions

attribute borrowed ideas & words to a source

Provide discursive commentary to supplement text

Authority Footnotes--the general rules

substantiate every proposition in text—not your own ideas and opinions

No common knowledge in legal writing background sections need fewer and more general

footnotes see generally and see, e.g.,

use appropriate signals when necessary be sure signal choice is not misleading

do not quote work out of context

use parenthetical explanations to make clear the relevance of citations

Authority FootnotesOnly rights that are specifically enumerated in the Constitution or that are "'so rooted in the traditions and conscience of our people as to be ranked as fundamental"' qualify for this level of analysis. [FN81] Otherwise, courts apply rational basis review, under which a law affecting property or nonfundamental liberties is presumed valid and will survive judicial scrutiny if it is "rationally related to a legitimate state interest." [FN82]

[FN81]. Griswold v. Connecticut, 381 U.S. 479, 487 (1965) (Goldberg, J., concurring) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

[FN82]. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

Material illustrating types of footnotes in these footnote slides is quoted from Adrienne Butcher, Note, Selective Constitutional Analysis in Lawrence v. Texas: an Exercise in Judicial Restraint or a Willingness to Reconsider Equal Protection Classification for Homosexuals?, 41 Hous. L. Rev. 1407 (2004).

Attribution Footnotes--the general rules

footnote for borrowed language, facts or ideas 7 consecutive words – use quotation marks if distinctive language – use quotation marks 50 or more words – follow block quote rules footnote citing or quoting source “A” that in

turn quotes or cites “B” Only one level of “quoting” or “citing” is

necessary, unless second level particularly relevant. Rule 10.6.2

reference source and significance as you introduce a quote

The Shasta dissent criticized the majority’s construction of the phrase, remarking: “ . . . .”

Attribution FootnotesConstitutional due process does not operate as a categorical prohibition against state infringement on citizens' rights. [FN78] Rather, it requires a certain level of justification for each imposition, with the level of justification depending on the classification under which the affected rights fall. [FN79]

[FN78]. See Mathews, 424 U.S. at 332 ("Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests....") (emphasis added).

[FN79]. See Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (describing the two primary features of the Court's "established method" for classifying rights to determine the appropriate level of judicial scrutiny).

Textual Footnotes--how do I use them?

textual footnotes supplement your text clarify or qualify an textual assertion raise potential criticisms or complications relate anecdotes pertinent to text

Use textual footnotes to enrich the theme of your argument not to prove you have thought of every

issue

Textual FootnotesThe issue in Griswold was whether a Connecticut statute

criminalizing the use of contraceptives, as it applied to married couples, violated the Constitution. [FN84] The Court found that it did, reasoning that the Bill of Rights created "penumbras," or "zones of privacy," that enveloped marital privacy as a fundamental liberty interest. [FN85]

[FN84]. Id. at 480.

[FN85]. Id. at 484-85. Justice Douglas, defining constitutional penumbras, explained that certain enumerated rights have implied corollaries that expand their meaning beyond what is written. Id. at 483-84. For example, the First Amendment's "freedom of association" extends beyond mere attendance at meetings to include expressing one's ideals through organizational affiliations, although the latter is not enumerated. Id. at 483 (citing NAACP v. Alabama, 357 U.S. 449, 462 (1958)). Justice Douglas also described marital privacy rights as emanating from similar extensions of the First, Third, Fourth, Fifth, and Ninth Amendments. See id. at 484.

Citation Placement in Footnotes Citation Sentences

If the unlicensed individual answers difficult or doubtful legal questions, she has committed the unlawful practice of law. Gardner v. Conway, 48 N.W.2d 788, 796 (Minn. 1951).

Citation Clauses If the unlicensed individual answers difficult or doubtful

legal questions, she has committed the unlawful practice of law. Gardner v. Conway, 48 N.W.2d 788, 796 (Minn. 1951). The courts have suggested that the drafting of a testamentary will by a nonlawyer is the unauthorized practice of law, Peterson v. Hovland, 42 N.W.2d 59, 63 (Minn. 1950), as is the preparation of complicated tax returns, Gardner v. Conway, 48 N.W.2d 788, 796 (Minn. 1951).

What Requires Citation?

Quoting, paraphrasing, or otherwise using another's words or ideas--must credit the source in a way that clearly indicates the nature and extent of the source's contribution to the article

Proper Citation Form The Bluebook: A Uniform System of

Citation (18th Edition) Locate the Pertinent Rules

Use Quick Reference Pages Use the Index Use the Table of Contents

Read the Main Rules Covering Your Source

Consult Applicable Tables

Different Parts of a Citation Typeface: main text, footnote text, and

footnote citation Abbreviations Source material: case, book, statute,

periodical Date Page: beginning and pinpoint Court/author

Typeface & Abbreviations: Case names in textual sentence

In main text: In Southern Pacific Co. v. Jensen, Justice McReynolds stressed the value of uniform laws. 244 U.S. 205 (1917).

In footnote text: In Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), Justice McReynolds stressed the value of uniform laws.

Typeface & Abbreviations: Case names in Citations

One of the values stressed by the Supreme Court is uniform application of the law to persons similarly situated. See, e.g., S. Pac. Co. v. Jensen, 244

U.S. 205 (1917).

Typeface & Abbreviations: Statutes

Rule 12.3: Current Official & Unofficial Codes Large & small caps

Table 1: Abbreviations for federal and state

codes Which code to cite for each state

Typeface & Abbreviations: Books

Rule 15.1: Author large & small caps

Rule 15.3: Title no abbreviations large & small caps Rule 8(a):Capitalization in Titles

Typeface & Abbreviations: Periodicals Rule 16.1: Author

Ordinary roman Rule 16.2: Title of article

Ordinary roman No abbreviations Italics

Rule 16.3: consecutively paginated Rule 16.4: nonconsecutively paginated Tables T.10 & T.13: Abbreviations Periodical

Title Large & small caps

Electronic Media & Other Nonprint Sources: Rule 18

The Bluebook requires the use and citation of traditional printed sources unless: Information cited is unavailable in

traditional printed source or Copy of source can not be located because

it is so obscure it’s practically unavailable Only for two exceptions can you cite

electronic source alone

Electronic Media & Other Nonprint Sources: Rule 18 Rule 18.1.1: Cases-unreported but

available on widely used database Include case name, docket number,

database identifier, court name, full date, unique database identifier

Gibbs v. Frank, No. 02-3924, 2004 U.S. App. LEXIS 21357 (3rd Cir. Oct. 14, 2004).

Shelton v. City of Manhattan Beach, No. B171606, 2004 WL 2163741 (Cal. Ct. App. Sept. 28, 2004).

Internet Rule 18.2: If available, cite to print

source or widely available commercial database

Use internet Source unavailable in print or on widely

available commercial database Available in print but Internet version

identical & will increase access: print citation with parallel cite to Internet, preceded by “available at”

Constitutions and Statutes

Rules 11 and 12 for print sources Rule 18.1.2

After citation through section number, give parenthetically

Name of database Currency of database (rather than year in

12.3.2) Publisher, editor, or compiler of database

Short Forms

General: Rule 4 Cases: Rule 10.9 Statutes: Rule 12.9 Books: Rule 15.9 Periodicals: !6.7 Electronic: Rule 18.7

Table 6: Case Names (335) Abbreviations of common words in

case names for use in citation sentences

Note rule for plurals-unless otherwise indicated, add “s” to abbreviation: Pharmaseutic[s, al] = Pharm.

Note abbreviations may be same for various forms of a word: Econom[ic, ics, ical, y] = Econ.

Table 13: Periodicals (349) English language periodicals frequently

cited or difficult to abbreviate If periodical not in list: abbreviate by

looking up each word in title in Table 13 and Table 10 (geographical terms, 342)

omit a, at, in, of, the word not in T.13 or T.10-don’t abbreviate Only one word after omitted “a,” etc., don’t

abbreviate

Internal Cross References

Rule 3.5 “supra” and “infra” See supra notes 44-47 and

accompanying text. See infra pp. 55-61.