Write On Competition Presentation

8/14/2019 Write On Competition Presentation

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Preparing a Casenote

Professor Tobi Tabor

Summer 2008


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Legal Scholarship is

Critical Writing [A]lmost 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 thatgoal.

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


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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 writersthesis.

takes the reader from the known(background) to the unknown (the

writers analysis).*


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Good Scholarly Writing Factually Correct Logical Analysis

well and sufficiently reasoned anddivided into mutually exclusive,yet related sections

Clear and readable Somewhat formal style Not pompous or colloquial


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Steps InvolvedTasks Required

1. Inspiration2. Research-

preliminary

3. Research-close tocomplete4. Drafting5. More research-fill

gaps6.

Revising7. Polishing

Fajans & Falk at 21.

1. Outline/roughdraft

2. Complete draft3. Good draft4. Final product

Mary Barnard Ray & Barbara J.

Cox, Beyond the Basics 406-20 (2d ed. 2003). You maynot write all these stages,but you will need to addressall tasks.


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Steps&Tasks Integrated1. Inspiration

3. Research-preliminary

5. Research-close to complete

6. DraftingOutline/Rough Draft

Complete Draft7. More Research8. Revising

Good Draft

9. PolishingFinal Product


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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.


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How to Narrow Topic: Adoption byAmerican citizen of child citizen of

foreign country Ask series of questions

Impact re immigration for the childs 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.


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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 arethose children integrated into their adoptive families andcommunities?

Determine Causation What is the impact of foreign adoptions on domestic

adoptions? Make comparisons

Are adoptions from foreign jurisdictions with more relaxedrules scrutinized more carefully by the US, and do thesuccess rates of those approved adoptions comparefavorably with the success rates of adoptions from

countries with stricter rules? Do the approved foreign adoptions compare favorably with


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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).


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Characteristics of ClaimGood 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 yourproposed solution to the problem.

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


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Your ClaimYou should be able to state your claim in

In one sentence.*

Statute X does not provide adequateprotection to those it was enacted toserve because .

This [ruling] is likely to have the

following side effects . . . , and thereforeshould be modified to provide . . . .

* Volokh at 9.


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Step 2-Preliminary

Research You are given specific case Read all separate opinions As you read, formulate reaction to courts

reasoning (majority, concurrence, dissent),and from there, formulate your claim/originalthesis.

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 mayneed to read them before you formulate your

claim.


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. ,No. 06-1456 (U.S. June 2,

2008)Cuellar was driving through Texas toward Mexico whenhe was stopped for driving erratically. After questioningCuellar, officers asked and were given permission tosearch his car. While the officers searched, Cuellarmade the sign of the cross, which the officers took tomean Cuellar thought he was in trouble.

Officers found a secret compartment under the rearfloorboard. 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 launderingstatute that prohibits transporting proceeds of unlawfulactivity across the border, knowing the transportationwas designed to conceal or disguise the nature , the

location, the source, the ownership, or the control ofthe mone i.e. criminalizin certain kinds of


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Cuellar Analogizing to interpretations of another provision ofthe statute-- 1956(a)(1)(B)(i) (criminalizing certainfinancial transactions)--the Fifth Circuit panel reversedthe conviction, holding the transportation must be

undertaken in an attempt to create the appearance oflegitimate wealth and although the evidence showedintent to avoid detection while driving to Mexico, it didnot show Cuellar intended to create the appearance oflegitimate wealth.

The Fifth Circuit en banc then affirmed the conviction,rejecting Cuellars and the panels position that thegovernment must prove the transportation wasundertaken in an attempt to create the appearance oflegitimate wealth. The en banc court held Cuellarsextensive efforts to prevent detection of the moneyduring transport proved he sought to conceal or

C ll I f /d i i


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Cuellar: part I-facts/decisionsbelow; part II-reasoning; part III-

holding IIA: the designed to conceal element

American Heritage & Blacks Law dictionaries Pennsylvania Dept 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 sustainconviction Several cases in footnote 4 re interpretation of

transaction provision to exclude mere spendingvis-a-vis mere hiding

Two cases in footnote 5 re substantial efforts to


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Cuellar Concurrence, Justice Alito, joined

by Chief Justice Roberts & Justice

Kennedyto summarizeunderstanding of the deficiency ingovernments evidence


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Issues? Is the Courts analysis rejecting the commondefinition of money launderingtransferringillicit funds through legitimate sources to

disguise their nature and source sound? Doesthe analysis affect interpretation of related orsimilar criminal statutes?

Does the Courts analysis and holding affectthe governments burden of proof in casesunder this statute? Other statutes?


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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 2-Preliminary

Research Research Plan

List major pointsroadmap for research Develop search terms

Known case or statute Annotated statutes Shepardizeheadnote numbers Key CiteKey numbers legislative history

No specific starting point Secondary sources


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Research Plan Has someone else looked into some aspects? 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 theissues? Different places to find that authority?


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Read critically while

researchingTake good notes so you dont loseyour 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 andanalyze topic critically).


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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


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Step 4-Drafting: How Do

the Materials Fit Together? Organize your materials into issues,

lines of cases and commentary, pro andcon

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

Try a non-linear outline if you cantdecide how concepts fit together

If youre not ready for an outline, dofreewritingjust dump all thethoughts you have onto the paperfrom there you can derive an outline


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writing anywhereend with 4parts

Scholarly papers have a basic four-partstructure

Introduction Background Analysis

Conclusion


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Introduction

Goal--persuade people to readfurther

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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Background: Two parts incasenote General background

Genesis of subject Changes during development Reasons for changes How things are now

Specific case description

Issue court considered Facts as relevant to the issue Each separate opinion

Decision

Reasoning


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Background: Both Parts

Have to assume law-educated reader isrelatively uninformed in the area

Not tedious with detail but specific as towhat is necessary for topic

Be comprehensive judiciously

Synthesize precedents No commentary, critique


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Background: Generalsection

Topically re issue/strand ofanalysis

Chronologically w/in topicJurisdictionally w/in topic

Courts Branches of government


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Analysis

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

creatively reasoned Keep readers interest Build to a conclusion


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Analysis

Your critique and commentary Assess development of

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

Usually several strands ofanalysis

Background & Analysis 85-90%of paper: split 40/60 up to


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Prove your thesis

Prove your prescriptive proposalboth 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 analysis

use 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


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Different OrganizationalPatterns in AnalysisAlternating Pattern

Thesis Statement

Overview -- big picture4. Point 1

Alternative AAlternative B

7. Point 2

Alternative A

Alternative B

3. Point 3Alternative A

Alternative B

Comparison & Evaluation ofAlternatives

Divided Pattern

Thesis Statement3. Alternative A

n Point 1n Point 2n Point 3n Comparative overview

of points

4. Alternative Bn Point 1n

Point 2n Point 3n Comparative overview

of points

Comparison & Evaluationof Alternatives


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Conclusion

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

ramifications, inviting the reader tofurther reflection.*

5-7.5% of paper

*Fajans & Falk at 9.


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Step 5More Research

As you write, research to fillanalytical gaps, provide examples,etc.

Continuous process Dont let research prevent or

interrupt writing


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New Plagiarism Policy

A failure to review and familiarize yourself withthese guidelines and how they apply to theassignment you have before turning in even a

draft ofa covered paper constitutes a violationof the University of Houston Law Center HonorCode, and that is so even if the paper ends upnot violating this policy. In other words, there

is no acceptable excuse for preparing a papecovered by this policy without having firstreviewed this policy carefully and determininghow it applies to the project in which you areengaged.


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Plagiarism Policy

[A] writer may not appropriate inhis writing either the language or

the ideas of another without givingdue credit to the source of suchlanguage or ideas, except as

otherwise specifically provided [inthe policy].


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Giving Due Credit tothe Source

What constitutes giving credit tothe source of borrowed language

or ideas in a way that clearlyindicates the nature and extent ofthe sources contribution to the

students work varies according tothe circumstances . . . [,] and thePlagiarism Policy has examples.


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Plagiarism

intent not required

plagiarism is still plagiarism, evenwhen it is inadvertent product ofcareless research (i.e., save those

pages from which you expect toquote, note pinpoint cites)


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What is a paraphrase?

Putting anothers ideas and words intoyourown words

Not just changing a few words here and

there, even if you cite the sourceif youchange only a few words, you still need toquote the authors words

Write your paraphrase relying on yourmemory, without looking at the original.

Then compare for content, accuracy, andmistakenly borrowed phrases.*

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


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Footnotes have threefunctions:

provide authority for assertions

attribute borrowed ideas & wordsto a source

Provide discursive commentary tosupplement text

A th it F t t


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Authority Footnotes--the general rules

substantiate every proposition in textnotyour own ideas and opinions No common knowledge in legal writing background sections need fewer and more

general footnotes see generallyand 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 makeclear the relevance of citations

--


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--Quotes, Concepts, &Principles

Only rights that are specifically enumerated in theConstitution or that are "'so rooted in the traditions andconscience of our people as to be ranked as fundamental"'qualify for this level of analysis. [FN81] Otherwise, courtsapply rational basis review, under which a law affecting

property or nonfundamental liberties is presumed valid andwill survive judicial scrutiny if it is "rationally related to alegitimate state interest." [FN82]

[FN81].Griswold v. Connecticut, 381 U.S. 479, 487 (1965)(Goldberg, J., concurring) (citing Snyder v. Massachusetts, 291U.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 fromAdrienne Butcher, Note, Selective Constitutional Analysis in Lawrence v.

Texas: an Exercise in Judicial Restraint or a Willingness to ReconsiderEqual Protection Classification for Homosexuals?, 41 Hous. L. Rev.1407 (2004).


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Attribution FootnotesStatements, 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 thatin

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: . . . .


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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


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Citation Placement inFootnotes Citation Sentences

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

1951). Citation Clauses

If the unlicensed individual answers difficult ordoubtful legal questions, she has committed theunlawful practice of law.Gardner v. Conway, 48 N.W.2d 788, 796 (Minn.1951).The courts have suggested that the draftingof a testamentary will by a nonlawyer is theunauthorized practice of law,Peterson v. Hovland,42 N.W.2d 59, 63 (Minn. 1950), as is thepreparation of complicated tax returns, Gardner v.Conway, 48 N.W.2d 788, 796 (Minn. 1951).


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What Requires Citation?

Quoting, paraphrasing, or

otherwise using another'swords or ideas--must credit thesource in a way that clearly

indicates the nature and extentof the original source'scontribution to your article


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Proper Citation Form

The Bluebook: A Uniform System ofCitation (18th Edition)

Locate the Pertinent Rules Use Quick Reference Pages Use the Index Use the Table of Contents

Read the Main Rules Covering YourSource

Consult Applicable Tables

iff f


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Different Parts of aCitation

Typeface: main text, footnote text, andfootnote citation

Abbreviations Source material: case, book, statute,

periodical Date Page: beginning and pinpoint Court/author

ype ace rev a ons:


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ype ace rev a ons:Case names in textualsentence

In main text: In Southern PacificCo. v. Jensen, Justice McReynolds

stressed the value of uniform laws. 244 U.S. 205 (1917).

In footnote text: In Southern PacificCo. v. Jensen, 244 U.S. 205 (1917),

Justice McReynolds stressed thevalue of uniform laws.


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T f & Abb i ti


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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

T f & Abb i ti


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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

T f & Abb i ti


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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

El t i M di & Oth


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Electronic Media & OtherNonprint Sources: Rule 18

The Bluebookrequiresthe use andcitation of traditional printed

sources unless: Information cited is unavailable in

traditional printed source or

Copy of source can not be locatedbecause it is so obscure itspractically unavailable

You can cite electronic sourcealone for onl two exce tions :

El t i M di & Oth


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Electronic Media & OtherNonprint Sources: Rule 18

Rule 18.1.1: Cases-unreported butavailable on widely used database

Include case name, docket number,

database identifier, court name, fulldate, 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).


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Internet

Rule 18.2: If available, cite to printsource or widely available commercial

database Use internet

Source unavailable in print or on widelyavailable commercial database

Available in print but Internet versionidentical & will increase access: printcitation with parallel cite to Internet,preceded by available at


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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 in12.3.2) Publisher, editor, or compiler of database


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Short Forms

General: Rule 4 Cases: Rule 10.9 Statutes: Rule 12.9 Books: Rule 15.9 Periodicals: 16.7 Electronic: Rule 18.7

T bl 6 C N


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Table 6: Case Names(335)

Abbreviations of common words incase names for use in citation

sentences Note rule for plurals-unless

otherwise indicated, add s toabbreviation: Pharmaseutic[s, al]

= Pharm. Note abbreviations may be same

for various forms of a word:

Econom[ic, ics, ical, y] = Econ.

Table 10 Geographical


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Table 10: GeographicalLocations (342)

for case citations, names ofinstitutional authors, periodical

abbreviations, foreign materials,and treaty citations

State abbreviations in table 10 not

the same as postal abbreviations


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Table 13: Periodicals (349)

English language periodicals frequentlycited 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

Internal Cross References


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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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