Preparing a Casenote

Professor Tobi Tabor Summer 2008

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).”

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. 2. 3. 4. 5. 6. 7.

Inspiration Researchpreliminary Research-close to complete Drafting More research-fill gaps Revising Polishing

1. 2. 3. 4.

Outline/rough draft Complete draft Good draft Final product

∗∗ Fajans & Falk at 21.

∗ Mary Barnard Ray & Barbara J. Cox, Beyond the Basics 40620 (2d ed. 2003). You may not write all these stages, but you will need to address all tasks.

Steps & Tasks Integrated
1.

Inspiration Research-preliminary Research-close to complete Drafting
Outline/Rough Draft Complete Draft

3.

5. 6.

7. 8. 9.

More Research Revising
Good Draft

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∗: Adoption by American citizen of child citizen of foreign country

Ask series of questions
 

 

Impact re immigration for the child’s natural parents? Unadopted siblings? Extended family? Differences in adoption procedures in various foreign jurisdictions? Validity of decree entered by foreign court? Differences in validity of adoption if by state agency, private agency, birth mother? Implications of sparse or no medical records of birth mother or child?

Up and down ladder of abstraction: macro focus (greatest level of generality) to micro focus (greatest detail
& specificity)  What is frequency of domestic vs. foreign adoptions by adoptive parents’ ages, income, and education?  What remedies if foreign adoption is not recognized by state of parents’ residence ?

∗ Fajans & Falk at 20-22.

Foreign Adoption

Decide whether primarily legal or primarily interdisciplinary
 

What federal and state laws and regulations govern foreign adoption? What entities are responsible for enforcing? If adopted children satisfy the US immigration health rules but nevertheless have serious disease, how effectively are those children integrated into their adoptive families and communities? What is the impact of foreign adoptions on domestic adoptions? Are adoptions from foreign jurisdictions with more relaxed rules scrutinized more carefully by the US, and do the success rates of those approved adoptions compare favorably with the success rates of adoptions from countries with stricter rules? Do the approved foreign adoptions compare favorably with

Determine Causation

Make comparisons

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 changed Probably 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 [ruling] is likely to have the following side effects . . . , and therefore should be modified to provide . . . .” * Volokh at 9.

Step 2-Preliminary Research
  

You are given specific case Read all separate opinions As you read, formulate reaction to court’s reasoning (majority, concurrence, dissent), and from there, formulate your claim/original thesis. Check periodicals to see if your claim has already been addressed. You should read all the cases cited by the court in starting your research, and you may need to read them before you formulate your claim.

Cuellar V. United States, No. 06-1456 (U.S. June 2, 2008)
Cuellar was driving through Texas toward Mexico when he was stopped for driving erratically. After questioning Cuellar, officers asked and were given permission to search his car. While the officers searched, Cuellar made the sign of the cross, which the officers took to mean Cuellar thought he was in trouble. Officers found a secret compartment under the rear floorboard. Inside was approximately $81,000 in cash, bundled in plastic and secured with duct tape. There were signs the compartment had been recently created. Cuellar was convicted under 18 U.S.C. § 1956(a)(2)(b)(i), a provision of the money laundering statute that prohibits transporting proceeds of unlawful activity across the border, knowing the transportation was designed “to conceal or disguise the nature , the location, the source, the ownership, or the control” of the money, i.e., criminalizing certain kinds of

Cuellar

Analogizing to interpretations of another provision of the statute-- 1956(a)(1)(B)(i) (criminalizing certain financial transactions)--the Fifth Circuit panel reversed the conviction, holding the transportation must be undertaken in an attempt to create the appearance of legitimate wealth and although the evidence showed intent to avoid detection while driving to Mexico, it did not show Cuellar intended to create the appearance of legitimate wealth. The Fifth Circuit en banc then affirmed the conviction, rejecting Cuellar’s and the panel’s position that the government must prove the transportation was undertaken in an attempt to create the appearance of legitimate wealth. The en banc court held Cuellar’s extensive efforts to prevent detection of the money during transport proved he sought to conceal or

Cuellar: part I-facts/decisions below; part II-reasoning; part IIIholding

IIA: the “designed to conceal” element
 

American Heritage & Black’s Law dictionaries Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998) United States v. Abbell, 71 F.3d 1286 (11th Cir. 2001) 31 U.S.C. § 5332

IIB: whether evidence sufficient to sustain conviction

Several cases in footnote 4 re interpretation of transaction provision to exclude “mere spending” vis-a-vis “mere hiding” Two cases in footnote 5 re substantial efforts to

Cuellar

Concurrence, Justice Alito, joined by Chief Justice Roberts & Justice Kennedy—to summarize understanding of the deficiency in government’s evidence

Issues?

Is the Court’s analysis rejecting the common definition of “money laundering”—transferring illicit funds through legitimate sources to disguise their nature and source– sound? Does the analysis affect interpretation of related or similar criminal statutes? Does the Court’s analysis and holding affect the government’s burden of proof in cases under this statute? Other statutes?

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 2-Preliminary Research

Research Plan
 

List major points—roadmap for research Develop search terms Annotated statutes Shepardize—headnote numbers Key Cite—Key numbers legislative history Secondary sources

Known case or statute
   

No specific starting point

Research Plan
 

Has someone else looked into some aspects? 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

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, 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

Background: Two parts in casenote

General background
   

Genesis of subject Changes during development Reasons for changes How things are now Issue court considered Facts as relevant to the issue Each separate opinion
 

Specific case description
  

Decision Reasoning

Background: Both Parts

  

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: General section

 

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

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

Small-scale
  

Different Organizational Patterns in Analysis
Alternating Pattern Thesis Statement Overview -- big picture
Point 1 Alternative A Alternative B 7. Point 2 Alternative A Alternative B 3. Point 3 Alternative A Alternative B Comparison & Evaluation of Alternatives
4.

Divided Pattern Thesis Statement 3. Alternative A
n n n n

Point 1 Point 2 Point 3 Comparative overview of points Point 1 Point 2 Point 3 Comparative overview of points

4.

Alternative B
n n n n

Comparison & Evaluation of Alternatives

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 write, research to fill analytical gaps, provide examples, etc. Continuous process Don’t let research prevent or interrupt writing

New Plagiarism Policy

A failure to review and familiarize yourself with these guidelines and how they apply to the assignment you have before turning in even a draft of a covered paper constitutes a violation of the University of Houston Law Center Honor Code, and that is so even if the paper ends up not violating this policy. In other words, there is no acceptable excuse for preparing a paper covered by this policy without having first reviewed this policy carefully and determining how it applies to the project in which you are engaged.

Plagiarism Policy

“[A] writer may not appropriate in his writing either the language or the ideas of another without giving due credit to the source of such language or ideas, except as otherwise specifically provided [in the policy].”

“Giving Due Credit to the Source”

“What constitutes giving credit to the source of borrowed language or ideas ‘in a way that clearly indicates the nature and extent of the source’s contribution to the student’s work’ varies according to the circumstances . . . [,]” and the Plagiarism Policy has examples.

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)

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/researc h/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 Footnotes∗-Quotes, Concepts, & Principles
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).

Attribution Footnotes—Statements, Ideas, & Structure --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 The Shasta dissent criticized the majority’s construction of the phrase, remarking: “ . . . .”

reference source and significance as you introduce a quote

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).

Textual Footnotes
--how do I use them?

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

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.

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 original source's contribution to your 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 Abbreviations for federal and state codes Which code to cite for each state

Table 1:

Typeface & Abbreviations: Books

Rule 15.1: Author

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

Rule 15.3: Title
  

Typeface & Abbreviations: Periodicals

Rule 16.1: Author

Ordinary roman Ordinary roman No abbreviations Italics

Rule 16.2: Title of article
  

  

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

You can cite electronic source alone for only two exceptions :

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: 16.7 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 10: Geographical Locations (342)

for case citations, names of institutional authors, periodical abbreviations, foreign materials, and treaty citations State abbreviations in table 10 not the same as postal abbreviations

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 (63)
  

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

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