Preparing a Casenote Professor Tobi Tabor

Summer 2012

“[T]he purest form of critical writing is scholarly writing—the sharing within the legal community of new ideas about the law.” 1

“[L]egal scholarship is characteristically normative (informed by a social goal) and prescriptive (recommending or disapproving a means to that goal).”2

1 Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 2 (4th ed. 2011).

2 Id. at 4.

Legal Scholarship is Critical 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

Good Scholarly Writing

Steps Involved¹Tasks Required ²1. Inspiration2. Research-

preliminary3. Research-close to

complete4. Drafting5. More research-fill

gaps6. Revising7. Polishing

¹ 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.

1. Inspiration

2. Research-preliminary

3. Research-close to complete4. Drafting

Outline/Rough DraftComplete Draft

5. More Research6. Revising

Good Draft7. Polishing

Final Product

Steps & Tasks Integrated

For Competition you will be assigned a recent opinion to analyze

For this casenote previously unresolved or currently evolving areas of law provide most potential◦You will agree or disagree with all or part

of what the Court did Something worth writing about—new issue, rule

no longer practical, decision makes new law on old issue

Hone it down to manageable size and scope

Step 1-Your inspiration

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).”³ Claim is your solution to a problem you have identified. Or Dispute you

have identified and rationale for why it was rightly/wrongly resolved. ª¹ Topic must be narrowed to manageable proportions to formulate thesis.ª²

1 Fajans & Falk, at 14. 2 Eugene Volokh, Academic Legal Writing 10 (4th ed. 2010). 3 Fajans & Falk, at 14. ª¹ Volokh, supra note 2. ª² Id.

Inspiration: Developing a Thesis ¹; Finding a Claim ²

In Descriptive part of claim—the world as it was/is—the most plausible explanation of facts you have discovered²◦ Historical question◦ A claim about a law’s effects◦ A statement about how courts are interpreting the law

In Prescriptive part of claim—what should be done—the best solution you can suggest◦ How a law should be interpreted◦ What new statute should be enacted◦ How a statute or common-law rule should be changed

1 Volokh, at 10. 2 Id. at 21.

Your Solution: Combine the Descriptive & Prescriptive ¹

You should be able to state your claim in In one sentence.¹“Statute X does not provide adequate

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

“This [ruling] is likely to result in the following consequences . . . , and therefore should be modified to provide . . . .”

1 Volokh at 9.

Your 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.”

¹ Volokh at 21.

Characteristics of Claim¹

Novel:◦ Add something to the state of expert knowledge about the field.◦ Nuance: ◦ 1. “[W]hat special factors—for instance, government interests or individual rights —are present in

some situations covered by your claim but not in others. Could you modify your claim to consider these factors?”

◦ 2. Do your arguments in support of your claim work well in some cases but badly in others? Can you limit your claim accordingly?

◦ 3. Simple “yes” and “no” answers in legal writing often attract more writing. Can you come up with a plausible “yes” in some cases, “no” in others?

Nonobvious:◦ Claims that “just apply settled law or well-established arguments to slightly new fact patterns [] tend

to look obvious.”

◦ Add a twist—more nuance: e.g., if leading precedent in the field doesn’t squarely support your claim, acknowledge and fill in support with other precedent and policy arguments

¹The concepts and descriptions of novelty, nonobviousness, utility, & soundness on this and the following slides are excerpted from Volokh at 21-35.

Characteristics¹

Some readers should find idea professionally valuable◦ Questions left open or created by decision: how

should they be resolved?◦ Apply to other jurisdictions (e.g., conduct violates

4th amendment; also violate state constitutions?)◦ Include prescriptive implications◦ Avoid language, examples, & jargon that will

unnecessarily alienate readers, “anti-choice,” “gun lobby,” “fanatic.” “[I]n general, don’t weaken your core claim by picking unnecessary fights.”1

1 Volokh at 28.

Useful

“Avoid ◦ excessive mushiness”◦ reliance on legal abstractions”

e.g., “single-sex educational programs should be legal if they have been shown in controlled studies to be more effective than co-ed programs” probably more defensible than “single-sex educational programs should be legal if they are reasonable.”

Sound

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.

Write-on Competition

Narrow thesis/claim?1st: Interdisciplinary/law only ¹Then:Macro-microComparisonsCausationQuestions

Research sources?◦ Who has authority◦ Where find sources

Lines of analysis? ¹ These techniques are discussed in Fajans & Falk at 20-22.

Where would you start?

How to Narrow Topic¹: Bullying and Children/Adolescents

Decide whether primarily legal or primarily interdisciplinary◦ What are the implications of the decision for some or all ofchildren, parents,

schools, area service providers?◦ What federal and state laws and regulations govern rights and protection of

students in schools? What entities are responsible for enforcing?◦ If children are consistently bullied, how effectively can they integrate into further

education and then into the workforce?

Up and down ladder of abstraction: macro focus (greatest level of generality) to micro focus (greatest detail & specificity)◦ In what venues does court address bullying? What effect on venues not specifically

included? What remedies?◦ What is frequency and type of public school vs. private school bullying by bullies’

ages, school grade, gender?◦ What gender and age group(s) are most susceptible to bullying, what assistance is

available?

¹ Fajans & Falk at 20-22.

Bullying Make comparisons

◦ How does decision affect states’ laws? School districts’ rules?◦ Is bullying more prevalent in the United States than in foreign jurisdictions (those

consistently subject to violence vs. those generally peaceful), in certain states than in others?

◦ Are bullies more likely to succeed in the workforce (have to define “succeed”) than their victims, their acolytes, the bystanders?

Determine Causation◦ How will the court’s decision impact state and school district budgets?◦ What is the long-term impact of bullying on the bully, the victim?◦ Are bullies, victims, bullies’ acolytes, bystanders at higher risk than the remaining

school population to physically harm themselves?

Ask series of questions◦ What acts constitute bullying?◦ Who does the bullying: gender, age, etc.?◦ What obligations do schools have to prevent or penalize bullying, help victims?◦ Differences in amount of bullying in public and private schools, middle and high

schools?◦ What influence does media have?◦ What role can pediatricians, psychologists play to prevent bullying, help victims?

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

Step 2-Preliminary Research

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?

Research Plan

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

Don’t read just to summarize. Ask questions-

◦ implications & consequences of writer’s position?◦ Writer’s inferences & conclusions—adequately supported?◦ Purpose of the text well-stated, justifiable?¹

Find the holes in what you’re reading, the inconsistent reasoning, conflict with precedent (will help you focus on thesis and analyze topic critically).

¹ These and critiquing techniques found in Fajans & Falk at 28-30.

Read critically while researching

What sources might you be looking for? Statutes and regulations: U.S. & foreign Treaties, Conventions, Protocols Cases Secondary sources: academic perspective,

practical perspective

Step 3—Research-close to complete

As you write, research to fill analytical gaps, provide examples, etc.

Statutes and regulations◦ U.S.◦ States◦ Legislative history—comments on the floor, committee

reports, hearing transcripts, session laws (findings and purpose)

Treaties, Conventions, Protocols Cases Academic articles

◦ Comparisons, critiques, rationales◦ Policies

Sources: Research is a continuous process

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

Step 4-Preparation for Writing: How Do the Materials Fit Together?

Madman Architect Carpenter Judge

Flowers’ Paradigm: "How Writers Write”

Fill in content in organizational structure Let creativity flow minimize rewriting—keep the Judge at bay—

this is Madman’s opportunity to have “one more idea”

Try to get most ideas down before rewriting

First Complete Draft

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

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

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

Introduction

General background◦ Origin 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

Background: Two parts in casenote

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

Background: Both Parts

Topically re issue/strand of analysis Chronologically w/in topic Jurisdictionally w/in topic

◦ Courts◦ Branches of government

Organization of Background: General section

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

Keep reader’s interestBuild 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

Analysis

Prove your prescriptive proposal both doctrinally and as a matter of policy.

Be concrete. Confront contrary arguments, but focus on

your own.

Volokh at 35-38.

Prove your thesis

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

Organization of Analysis

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

ramifications, inviting the reader to further reflection.”¹

5-7.5% of paper

¹ Fajans & Falk at 9.

Conclusion

As you write, research to fill analytical gaps, provide examples, etc.

Continuous process Don’t let research prevent or interrupt

writing

Step 5—More Research

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.

UHLC Honor Code & Plagiarism Policy

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

“[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].”

Plagiarism Policy

“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 . . . [,]” and the Plagiarism Policy has examples.

“Giving Due Credit to the Source”

Putting another’s ideas and words into your own words

Get the essence of the statements and rephrase in your own words

Not just changing a few words here and there, even if you cite the source

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

Then compare for content, accuracy, and mistakenly borrowed phrases.

What is a paraphrase?

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.

How Do I Use Quotes?

The text and footnote excerpts on the following slides are all quoted from the following student note:Adam K. Nalley, Note, Did Student Speech Get Thrown Out with the Banner? Reading “Bong Hits 4 Jesus” Narrowly to Uphold Important Constitutional Protections for Students, 46 Hous. L. Rev. 615 (2009).

Student Note

Under the standard put forth by the Court, a school’s control extends over student expression in the context of any activity that, “students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school." [Nally, footnote omitted]

Quotes: in a sentence (49 or fewer words)

FN 105. Maring, supra note 72, at 688-89. See generally Charles C. Haynes, et al., The First Amendment in Schools 59.65 (2003) (identifying and explaining the “three tests” developed by the Supreme Court from the landmark student speech cases: Tinker, Fraser, and Hazelwood). Justice Alito, while sitting on the Third Circuit Court of Appeals, provided a good summary of the types of speech these cases allow schools to prohibit:

To summarize: Under Fraser, a school may categorically prohibitlewd, vulgar or profane language. Under Hazelwood, a school mayregulate school sponsored speech (that is, speech that a reasonableobserver would view as the school's own speech) on the basis ofany legitimate pedagogical concern. Speech falling outside of these categories is subject to Tinker's general rule: it may be regulated only if it would substantially disrupt school operations or interfere with the right of others.

Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001).

Quotes: block (50 or more words), Nally

provide authority for assertions

attribute borrowed ideas & words to a source

Provide discursive commentary to supplement text

Footnotes have three functions:

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--the general rules

Paramount and MTV films are currently producing a film about “a young man standing up for his rights” after he was suspended for flying a fourteen-foot banner the phrase “Bong Hits 4 Jesus” outside his school. [FN 1] The movie is based on the real life story of Joseph Frederick, who made national headlines when he challenged his suspension all the way to the Supreme Court. [FN 2] It is the story of a high school senior who, in an effort to show he would not “bow down in submission before an authority,” created a banner with a large piece of paper, three dollars worth of duct tape, and a peculiar phrase that would become the subject of a Supreme Court case. [footnote omitted].FN 1 Jeff Giles, Paramount, MTV Doing Bong Hits 4 Jesus, Rotten Tomatoes, Oct. 22, 2007, http://www.rottentomatoes.com/m/jesus_loves_me_lets_sing_about_doing_your_best_in_school/news/1682499/.The film’s producers compare it to the classic Mr. Smith Goes to Washington. Id.

FN 2 Id.; see, e.g., Linda Greenhouse, Court Hears Whether a Drug Statement is protected Free Speech for Students, N.Y. Times, Mar. 20, 2007, at A16 (describing the interactions between the attorneys and the Supreme Court Justices during oral arguments).

Authority Footnotes, Nally

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 concurrence criticized the majority’s construction of the

phrase as veering too far afield from established law : “ . . . .”

Attribution Footnotes--the general rules

Tinker, therefore, provides a strong safeguard under the First Amendment for student speech in a school setting. [FN 81] Under Tinker, a student’s expressive activity or speech is protected as a First Amendment right if it does not materially disrupt a school activity, but school authorities maintain “broad authority to restore order” when the student’s speech or expressive conduct does result in a material and substantial disruption. [footnote omitted].

FN 81 See Chemerinsky, supra note 73, at 532 (declaring that the protection of student speech under the First Amendment is a core theme of the majority opinion); see also Cambron-McCabe et al., supra note 76, at 118 (noting that Tinker allows students to express opinions on controversial issues in the classroom, cafeteria, playing field, or any other place.).

Attribution Footnote, Nally

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

Use to enrich the theme of your argument

Textual Footnotes

Paramount and MTV films are currently producing a film about “a young man standing up for his rights” after he was suspended for flying a fourteen-foot banner the phrase “Bong Hits 4 Jesus” outside his school. [FN 1]

[FN 1] Jeff Giles, Paramount, MTV Doing Bong Hits 4 Jesus, Rotten Tomatoes, Oct. 22, 2007, http://www.rottentomatoes.com/m/jesus_loves_me_lets_sing_about_doing_your_best_in_school/news/1682499/.The film’s producers compare it to the classic Mr. Smith Goes to Washington. Id.

Textual Footnotes, Nally

2. Justice Thomas’s Concurrence: Students Have No FreeSpeech Rights. [FN 43] Justice Thomas joined the majority in decidingthat a public school may prohibit speech that advocates illegaldrug use. [footnote omitted]

FN 43. A full analysis of Justice Thomas's concurring opinion is beyond the scope of this Note. His opinion alone is worth an entire article. For example, did the Founders truly intend for the government to compel children to attend a government school and then afford those children no right to disagree with government policy in a nondisruptive manner? See id. at 2630 (Thomas, J., concurring) (opining that, as originally understood, the First Amendment does not extend to student speech in public schools). Did Justice Thomas manipulate originalism to reach a desired political result that children should be seen and not heard? See id. at 2631 (“[I]n the earliest public schools, teachers taught, and students listened.”). How does this opinion reflect Justice Thomas's First Amendment jurisprudence? [additional citations omitted].

Textual Footnote, Nally

The majority opinion also held that the banner could be reasonably interpreted as promoting illegal drug use. [FN 107]

[FN 107]. Morse, 127 S. Ct. at 2624-25; see also supra Part II.C.1 (discussing potential meanings on the banner). It is worth noting that the Court could have dismissed the school’s appeal if it found the meaning of the sign impossible to determine. See Brief of the Liberty Legal Institute as Amicus Curiae in Support of Respondent at 3-5, Morse, 127 S. Ct. 2618 (No. 06-278) [hereinafter Brief of the Liberty Legal Institute]. The sign, instead of being interpreted as promoting illegal drug use, could have been interpreted in a variety of constitutionally protected manners—for example, it could plausibly have been construed as “anti-religious” and thus “clearly protected.” Id. at 3. . . . See infra Part III.C (discussing the impact of the Court’s holding in Morse on student speech rights).

Adam K. Nalley, Did Student Speech Get Thrown Out with the Banner? Reading “Bong Hits 4 Jesus” Narrowly to Uphold Important Constitutional Protections for Students, 46 HOUS. L. REV. 615, 632-33 & n.107(2009).

Textual Footnotes

Citation Sentences◦ If the unlicensed individual answers difficult or

doubtful legal questions, she has committed the unlawful practice of law.¹¹ Gardner v. Conway, 48 N.W.2d 788, 796 (Minn. 1951).

Citation ClausesThe 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).

Citation Placement in Footnotes

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

What Requires Citation?

The Bluebook: A Uniform System of Citation (19th Edition)

Locate the Pertinent Rules◦ Use Quick Reference Pages inside front & back

covers)◦ Use the Index◦ Use the Table of Contents

Read the Main Rules Covering Your Source: switch to white pages

Consult Applicable Tables

Proper Citation Form

Typeface: main text, footnote text, and footnote citation

Abbreviations Source material: case, book, statute,

periodical Date Page: beginning and pinpoint Court/author

Different Parts of a Citation

Typeface & Abbreviations: Case names in textual sentence & citations

tTextext citation

In main text: In Southern Pacific Co. v. Jensen,¹ Justice McReynolds stressed the value of uniform laws.¹ 244 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.

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).

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: Statutes

Rule 15.1: Author◦ large & small caps

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

Typeface & Abbreviations: Books

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

Typeface & Abbreviations: Periodicals

Rule 18.2: cite to print source when available unless there is available a digital copy that is authenticated, official, or exact copy of printed source

Rule 18.2.1: (a) sources that can be cited as if to original print source: authenticated, official, exact copies; (b) when URL should be appended; (c) sources using “available at.”

Rule 18.2.2: direct citations to internet sources

Internet, Electronic media, other nonprint resources: Rule 18

Rule 18.3.1: 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, at *18 (3d Cir. Oct. 14, 2004).¹

Shelton v. City of Manhattan Beach, No. B171606, 2004 WL 2163741, at *1 (Cal. Ct. App. Sept. 28, 2004).²

¹ This citation is in a footnote. If it were in a textual sentence, the case name would be italicized.

² This citation is in a footnote. If it were in a textual sentence, the case name would be italicized.

Cases

Rules 11 and 12 for print sources Rule 18.3.2

◦ 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 (unless

state or federal officials)

Constitutions and Statutes

General: Rule 4 Cases: Rule 10.9 Statutes: Rule 12.10 Books: Rule 15.10 Periodicals: 16.9 Electronic: Rule 18.8

Short Forms

Table 6: Abbreviations for Case Names in citations

For case names in textual sentences—main text or footnote text–Rule 10.2.1 (c) & Rule 6.1 (b)

Table 7: Court names Table 10: Geographical Locations Table 13: Periodicals

Particularly Helpful Tables

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

text. See infra pp. 55-61. Supra also used for other sources.

Rule 4.2

Internal Cross References