How To Write a Case Comment

  • Published on
    25-Feb-2016

  • View
    114

  • Download
    0

Embed Size (px)

DESCRIPTION

How To Write a Case Comment. Presented by The Tax Lawyer & The American Criminal Law Review. Introductions. The Tax Lawyer Board Erica, Rob, Katharine, Danielle, Kirsten, Lauren The American Criminal Law Review Board Jeff, Brittany, Jeff, George, Andrew. What Is Write On?. - PowerPoint PPT Presentation

Transcript

How To Write a Case Comment

How To Write a Case CommentPresented by The Tax Lawyer & The American Criminal Law ReviewIntroductions The Tax Lawyer BoardErica, Rob, Katharine, Danielle, Kirsten, Lauren

The American Criminal Law Review BoardJeff, Brittany, Jeff, George, Andrew

What Is Write On?The way you get on a journal for next yearYou will need to complete:Case commentBlue book testOptional personal statement12 days (May 18 May 29)Student ranks journals, then OJA matchesScores:Final paper score is average of three judgesBluebook score is added to the paper score to get packet scoreThen Write On packet score is combined with a score based on your grades.

What is a Case Comment?A case comment critiques the decision in a particular caseShould provide your own original analysis of the case

Approaches to the case commentThe case was decided incorrectly, becauseThe case was decided correctly, but the courts reasoning was wrongThe whole area of law is a messThe court missed the pointThe court is correctSomething completely different

The case was decided incorrectly, becauseDemonstrate why the courts analysis is wrongMost common approachMust be careful not to mimic the dissent

The case was decided correctly, but the courts reasoning was wrongDemonstrate that the court applied the wrong reasoning and explain why this was the wrong approachMust be careful to distinguish your reasoning from the courts reasoning

The whole area of law is a messUse the principal case to suggest your own approach to the area of law Most ambitious approachMake sure your approach is logical, yields consistent results, and has public policy support

The court missed the pointAnalyze a different issue in the case that you think the court missedMake sure to incorporate the principal case and the other materials in the write-on packet

The court is correctDemonstrate that the court was 100% correctAddress the relevant counterargumentsMake sure not to simply repeat the courts opinion

Something completely differentUse the case as a springboard for an original legal idea of your ownMake sure the materials in the write-on packet support your idea

Reading The PacketWhats Provided

Preparing for the Packet

Procedures

Reading the PacketPreparing for the PacketAttend the Case Comment Workshop

Read Preparation for the 2012 Write On Competition: How to Write a Case Comment:

- This guide serves as a reference and includes:Procedures & Write On Competition RequirementsTechnical Aspects of Writing a Case Comment3) Sample Case Comments

ProceduresPacket Purchase & AvailabilityDates of Competition: 5/18-5/29

Turning in SubmissionsCarefully read the Write On packet instructionsUpload the completed materials & supplemental materials to the competition website early

Write On Packet ContentsConsists of the case that you will be expected to analyze using only the materials provided in the packet (i.e. the packet will include other cases, secondary sources, etc.)

ProceduresRestrictions DURING the Competition:You may only use the materials provided in the packet, a dictionary, legal dictionary, thesaurus, and your Bluebook.You may not consult any additional materials during the competition.You are NOT allowed to do any outside research.You may not discuss and/or receive any assistance during competition.

Reading the PacketWhat You Will Be Given:The principal case on which you are to commentMaybe a lower court decisionCases that bear on the principal caseMaybe statutes and legislative history, if appropriateMaybe law review articlesMaybe newspaper, magazine, or other periodical articles

Reading the PacketHelpful Hints:Do not confuse the lower court case with the case that you are supposed to be analyzing. The other cases are included only to give you some basis for commenting on the principal case.

You do not need to cite everything in the packet in your comment. Your thesis might be narrowly defined to eliminate the need to cite everything and some of the cases might be superfluous.

However, you should be aware that the cases are there for a reason. A dearth of sources in your comment will be noted.

Reading the PacketDevote two days just to reading, more if briefing, the packet.

Decide how you want to read the packet:ChronologicallyMakes the most intuitive sense, so you can get an idea of the development of the law.In order of importanceAlso makes sense, but you will not have a very good idea of the order of importance until you read a few cases.Order in which the cases are given to youTakes less thought.How To Craft a Thesis StatementChoose Your ApproachReview the materials carefullyGet to the POINT!!!A Few ExamplesRemember the Big Picture

Choose your approachAfter reading, decide what your case comment will argue:The case was decided incorrectly.The court is correct, but for the wrong reasons.This whole area of law is a mess, and you can do better.The court missed the point.The court is correct.Your own legal pyrotechnics.

Remember: Review the Materials CarefullyAs you read through the packet, did one view or the other jump out at you?

Which argument feels most natural to you?

Carefully noting and keeping track of your sources will help you with this. It may help to do a review of your materials and note which cases support each approach.

Get to the POINT.Your thesis statement should be extremely clear about your argument.

It is perfectly appropriate to use direct language, for example:This Comment will argue that

A Few ExamplesThis Comment will argue that the Fourth Circuit should have relied on Virginia state law to dispose of the publicity element in Sciolino v. City of Newport News.

This Comment will argue that the Eighth Circuit should have applied a balancing test in analyzing the endorsement clause in Wersal v. Sexton.

Remember the BIG PictureMake sure your thesis is streamlined and hones in on the key point of your argument.

Your roadmap and the rest of your case comment will provide the information supporting your thesis.

Formal Requirements: Footnotes & Page LengthA case comment has two main parts:Analysisup to seven pages (but no more!)Shorter than a true publishable case comment you must focus on only the major points/critiquesEndnotesup to three pagesAll the citations in the case comment should be placed in endnotes that follow the analysisRead the instructions carefully for specific formatting instructions (different for the two parts)

Formal Requirements: Footnotes & Page LengthUsually, the analysis includes 4 parts:Introduction (facts, procedural history, and holding)23 pagesRoadmapabout pageActual Analysis34 pagesConclusionabout pageWhen editing for length, avoid sacrificing your actual analysis

Formal Requirements: Footnotes & Page LengthAll citations should be placed in endnotesRead the instructions to make sure you format the endnotes correctlyThe Three Primary Endnote FunctionsDirect Citationwhen expressly referencing information found in the materialsSupportive Citationwhen stating a legal contention that is supported by information in the materialsAncillary Pointsto provide the reader with analysis that is useful but tangential to your main points

Formal Requirements: Footnotes & Page LengthRead Bluebook Rule 1.1(a) for the rules on placing the endnote call numbers within your textual sentencesRead Bluebook Rules 1.21.5 for the rules on using signals and parantheticals that are appropriate to the purpose of a particular endnote (direct citation, supportive citation, etc)Read Bluebook Rule 3.5 for the rules about using supra and infra for internal cross-references Read Bluebook Rule 4.2 for the rules on using supra and hereinafter as short citations in appropriate circumstances

Formal Requirements: SectionsIntroductionStatement of FactsHoldingRoadmapAnalysisConclusionThe Statement of Facts & Holding can be switched, depending on how persuasive/interesting your facts are

Statement of Facts1-2 pagesRelay any facts that are interesting and are essential to your argument, just like LRW.Objective, academic toneHolding - 1 pageAnalogous to the Statement of the Case in a brief.Explain the courts reasoning behind the outcomeRoadmap pageProvide the Reader with your Thesis StatementLay out the different aspects of your argument, corresponding with your headingsConvince the reader why this issue is important and how your argument demonstrates the optimum outcomeShould be introduced with language like This Comment will argueAnalysisConstitutes the majority of your commentShould be organized around headings & subheadingsRemember, you only have 7 pages, so keep it relevant and conciseOutlining will be your best friend!Conclusion PageSum up the different prongs of your argument.Mirror your roadmap!Briefly restate the underlying reasoning for your argument and what outcome you are advocating forExamples: Support & CitationA footnote MUST be used when . . .

You cite an authority in the text

In Siefert v. Alexander,28 a sitting Wisconsin judge brought . . .

It is necessary to back up a proposition

Criminal voter disenfranchisement laws have existed for centuries.1

You may also use a footnote to make an ancillary point

39 The courts finding of ambiguity is questionable, but is uncontested for purposes of this Comment.

How Do I Use Footnotes?**ALWAYS refer to the white pages of the Nineteenth Edition of The Bluebook**

Here are some common problems in write-on citation formatting:

1. Italicization Bluebook 2.1(a)

Use ordinary roman type for case names in full citations:

41 Richardson v. Ramirez, 418 U.S. 24, 54 (1974).

Except for procedural phrases, which are always italicized:

36 See In re Vincent, 172 P.3d at 608 (citing In re Raab, 793 N.E.2d 1287, 1290 (N.Y. 2003)).

Use italics for the short form of case citations:

44 See Wersal, 613 F.3d at 836-37. How Do I Use Footnotes?2. Short Cites Bluebook 10.9(a)

In law review footnotes, a short form for a case may be used if it clearly identifies a case that (1) is already cited in the same footnote or (2) is cited in one of the preceding five footnotes. Otherwise a full citation is required.

36 Johnson, 405 F.3d at 1234. 37 Id. at 1232.

38 Id.

39 The courts finding . . .

40 Johnson, 405 F.3d at 1234.

NOT: 44 See Wersal, 613 F.3d at 836-37.

45 Carey, 614 F.3d at 194.

46 129 S. Ct. 2252 (2009).

47 See id. at 2257.

48 See id. at 2257-58.

49 See id. at 2265.

50 See Wersal, 613 F.3d at 854.

How Do I Use Footnotes?3. Internal Cross-References / Supra Bluebook 3.5 & 4.2

Portions of text, footnotes, and groups of authorities within the piece may be cited using supra or infra. Supra may also be used as short form citations for some sources. Proper format: See Smith, supra note XX, at XXX.

11 See Gray, supra note 6, at 26. NOT: 8 See Varnum, supra note 2 at 134.

4. Id. Bluebook 4.1

Id. can be used for any type of authority except internal cross-references. Id. may not be used if the preceding footnote contains more than one authority.Sources identified in explanatory parentheticals, explanatory phrases, or prior/subsequent history are ignored for purposes of this rule. Thus:

26 Id. at 1217 (citing Johnson v. Governor of Florida, 353 F.3d 1287 (11th Cir. 2003), vacated 377 F.3d 1163).

27 Id.

How Do I Use Footnotes?5. Signals Bluebook 1.2

It is possible, and not uncommon, to incorrectly use introductory signals.

Dont just use see on every footnote to be safe.

Review the descriptions in The Bluebook, and use the signals accordingly.

Use commas and italics when appropriate.

56 See, e.g., Hunter v. Underwood, 471 U.S. 222 (1985).

NOT: 3 See, e.g. Wesley v. Collins, 791 F.2d 1255, 1261-62 (6th Cir. 1986).

52 Compare Caperton, 129 S. Ct. at 2266 (recusal required in cases where the judges impartiality might reasonably be questioned), with Wersal, 613 F.3d at 836 (same).

Comparing Good & Bad Examples: Roadmap & AnalysisComponents of an Effective RoadmapExplains why the issue is important and describes the discussion and thesis. Purpose is to inform the reader about what is coming so subsequent material is relevant and falls into place.Components of an Effective AnalysisOrganization corresponds to roadmapAnalysis ties to the thesis and argument using cases and secondary sourcesStays on topic and discusses only what is relevant to the analysis

Roadmap ExamplesExample 1:This comment will argue that, instead of relying on a strict scrutiny standard, the Eighth Circuit should have adopted a more deferential balancing test when analyzing the constitutionality of Minnesotas endorsement clause. This approach would have allowed the court to uphold the endorsement clause and brought the Eighth Circuit in line with the unanimous authority of state and federal courts upholding the constitutionality of judicial endorsement prohibitions. First, in summarily applying strict scrutiny review to the clause at issue, the Eighth Circuit ignored the underlying rationale for the strict scrutiny standard set forth in White I. Second, any argument that the balancing test employed in other jurisdictions is inapplicable because Wersal was a judicial candidate rather than a sitting judge fails, as the original logic justifying application of a balancing test to speech restrictions requires no such distinction between the two categories. Finally, recusal alone is not a sufficiently strong safeguard for Minnesotas interest in maintaining an impartial judiciary. The Wersal decision therefore significantly undermined this interest when it struck the Minnesota endorsement clause.

Roadmap ExamplesExample 2:This comment will argue that the Eighth Circuits strict scrutiny analysis in Wersal fails to properly consider litigants right to due process under the 14th Amendment to the U.S. Constitution. In cases that pit two competing constitutional rights against each other, courts have recognized that limited deference should be shown to the legislature that may not necessarily be warranted when only one constitutional issue is at stake. Instead of limited deference, the Wersal decision seems almost willful in its failure to recognize the competing constitutional principles of free speech and due process. In addition, this comment will argue that the due process analysis in Wersal is insufficient in light of the Supreme Courts decision in Caperton v. A.T. Massey Coal Company.

Analysis ExamplesExample 1:A. The Wersal Courts Application of Strict Scrutiny Misapplies the Rationale of White I.In failing to consider a balancing test as an alternative to strict scrutiny review when analyzing Minnesotas endorsement clause, the Eighth Circuit stripped the White I holding of its original rationale. It is undisputed that the...