Preparing a Casenote

1
Preparing a Casenote

• Professor Tobi Tabor
• Summer 2006

2
Legal Scholarship is Critical Writing

• Almost all legal scholarship is implicitly
  directed to the decision-makers in our
  societylegislative 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).

3
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 writers thesis.
• takes the reader from the known (background) to
  the unknown (the writers analysis).
• Fajans Falk at 5.

4
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

5
Steps Involved?? Tasks Required ?

• Inspiration
• Research-preliminary
• Research-close to complete
• Drafting
• More research
• Revising
• Polishing
• ?? Fajans Falk at 21.

• Outline/rough draft
• Complete draft
• Good draft
• 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.

6
Steps Tasks Integrated

• Inspiration
• Research-preliminary
• Research-close to complete
• Drafting
• Outline/Rough Draft
• Complete Draft
• More Research
• Revising
• Good Draft
• Polishing
• Final Product

7
Step 1-Your inspiration

• Unresolved or evolving areas of law provide most
  potential
• Disputes about the lawsplit in federal circuits
• Case before SCOTUS
• Disputes about direction law should take
• Something worth writing aboutnew issue, rule no
  longer practical
• Hone it down to manageable size and scope
• Fajans Falk at 21.

8
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.

9
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.

10
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?

11
Your original thesis

• Descriptivethe world as it was/is
• Historical question
• A claim about a laws effects
• How courts are interpreting the law
• Prescriptivewhat should be done
• How a law should be interpreted
• What new law should be enacted
• How a statute or common-law rule should be
  changed
• Probably a combination of both descriptive and
  prescriptive.
• Eugene Volokh, Academic Legal Writing 9 (2d
  ed. 2005).

12
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 problemdoctrinal, empirical,
  historicalyour claim is your proposed solution
  to the problem. ??
• Eugene Volokh, Academic Legal Writing 9 (2d ed.
  2005).
• ?? Id.

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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.

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Step 2-Preliminary Research

• Check periodicals to see if your original thesis
  has already been addressed.
• List major pointsroadmap for research
• Develop search terms
• No specific starting point
• Secondary sources
• Known case or statute
• Annotated statutes
• Shepardizeheadnote numbers
• Key CiteKey numbers
• legislative history

15
Make a Research Plan

• Has someone else looked into this?
• Build checks into your research so you dont 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?

16
Read critically while researching

• Take good notes so you dont lose your original
  reactions to material.
• Dont read just to summarize.
• Find the holes in what youre reading, the
  inconsistent reasoning, conflict with precedent
  (will help you focus on thesis and analyze topic
  critically).

17
Step 3Research-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

18
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 courts opinion (3
  slides)

19

• 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.

20

• 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.

21
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/0
  5-184.html

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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?

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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 cant decide how
  concepts fit together
• If youre not ready for an outline, do
  freewritingjust dump all the thoughts you
  have onto the paperfrom there you can derive an
  outline

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The Parts of Your paper start writing
anywhereend with 4 parts

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

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Introduction

• Goal--persuade people to read further
• Introduce topic why its 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

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Samples

• Compare Solomon Amendment note to Women in
  Workplace article

27
Background

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

28
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

29
Organization of Background

• Topically re issue/strand of analysis
• Chronologically w/in topic
• Jurisdictionally w/in topic
• Courts
• Branches of government

30
Analysis

• The most important section
• (1) original thoughts
• (2) tightly, logically, and creatively reasoned
• Keep readers interest
• Build to a conclusion

31
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

32
Prove your thesis

• Prove your prescriptive proposal both doctrinally
  and as a matter of policy.
• Be concrete
• Confront other sides arguments, but focus on
  your own.
• Volokh, supra, at 35-38.

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Organization of Analysis

• Large-scale
• Divide into major issues/strands of analysisuse
  informative headings
• Subdivide--subheadings
• Order logicallyheadings subheadings should be
  logical outline
• Small-scale
• Introduce and conclude on each issue
• Focus on your arguments
• Rebut major opposing arguments

34
Different Organizational Patterns

• Alternating Pattern
• Thesis Statement
• Overview -- big picture
• Point 1
• Alternative A
• Alternative B
• Point 2
• Alternative A
• Alternative B
• Comparison Evaluation of Alternatives

• Divided Pattern
• Thesis Statement
• Alternative A
• Point 1
• Point 2
• Point 3
• Comparative overview of points
• Alternative B
• Point 1
• Point 2
• Point 3
• Comparative overview of points
• Comparison Evaluation of Alternatives

35
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

36

• 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
  obligationsinfringe on executive powers
• Reciprocity treaty rights, human rights

37
Conclusion

• Restate thesis
• Summarize major points
• May suggest related issues or ramifications,
  inviting the reader to further reflection.
• 5-7.5 of paper
• Fajans Falk at 9.

38
Step 5More Research

• As you draft, research to fill analytical gaps,
  provide examples, etc.
• Continuous process
• Dont let research prevent or interrupt drafting

39
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)

40
Plagiarism Passing Off Anothers Work as Yours

• UHLC Honor Code Quoting, 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.?

41
What is a paraphrase?

• Putting anothers ideas and words into your own
  words
• Not just changing a few words here and there,
  even if you cite the sourceif you change only a
  few words, you still need to quote the authors
  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)

42
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 dont supplant,
  i.e., if you take the quotes out, you still have
  clear, logically developed text.

43
Footnotes have three functions

• provide authority for assertions
• attribute borrowed ideas words to a source
• Provide discursive commentary to supplement text

44
Authority Footnotes --the general rules

• substantiate every proposition in textnot 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

45
Authority Footnotes?

• Only 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).

46
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 majoritys
  construction of the phrase, remarking . . . .

47
Attribution Footnotes

• Constitutional 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).

48
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

49
Textual Footnotes

• The 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.

50
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).

51
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

52
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

53
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

54
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.

55
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).

56
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

57
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

58
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

59
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 its practically unavailable
• Only for two exceptions can you cite electronic
  source alone

60
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).

61
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

62
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

63
Short Forms

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

64
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 Pharmaseutics, al
  Pharm.
• Note abbreviations may be same for various forms
  of a word Economic, ics, ical, y Econ.

65
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-dont abbreviate
• Only one word after omitted a, etc., dont
  abbreviate

66
Internal Cross References

• Rule 3.5
• supra and infra
• See supra notes 44-47 and accompanying text.
• See infra pp. 55-61.