Preparing a Casenote

Professor Tobi TaborSummer 2011

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).”

*Fajans & Falk at 5.

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. Inspiration2. Research-

preliminary3. Research-close to

complete4. Drafting5. More research-fill

gaps6. Revising7. Polishing

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.

Steps & Tasks Integrated1. Inspiration

2. Research-preliminary

3. Research-close to complete

4. DraftingOutline/Rough DraftComplete Draft

5. More Research6. Revising

Good Draft7. Polishing

Final Product

Write-on Competition 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.

Step 1-Your inspiration* 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

How to Narrow/Break down the Topic: Los Angeles Cnty, CA v. Humphries, No. 09-350 (U.S. Nov. 30, 2010).History/facts: Humphries were accused of child abuse, which

required their names to be placed on a state central index, and then they were exonerated. The statute establishing the index has no procedures for removing your name from the index and neither the state nor the county had set up procedures. So the Humphries sued the state and county under § 1983.

District Court granted Δs’ motions for summary judgment. Ninth Circuit reversed, finding state and county were required to

provide those on list with notice and hearing—thus Humphries were entitled to declaratory relief. Court also found county had to pay Humphries, as prevailing parties, $60,000 in attorneys’ fees. County relied on Monell (U.S. 1978) to claim no liability as a municipal entity because no county policy or custom violated Humphries’ federal rights—a state policy caused the deprivation. Ninth found Monell’s requirement that entity’s policy and custom caused violation of federal right did not apply to claims for prospective relief, so Humphries did prevail.

Humphries: Breyer, J. joined by all other Justices except Kagan, J., who took no part in consideration or decision of the case.

Supreme Court accepted certiorari because of a split in the circuits on the question of whether Monell’s policy and custom requirement applies only to claims for money damages and not to claims for prospective relief. Id. at 4. Court reversed and remanded, holding “Monell’s ‘policy or custom’ requirement applies in § 1983 cases irrespective of whether the relief sought is monetary or prospective.” Id. at 9-10.

Court reviewed the history of Monell’s “policy and custom” requirement, which makes municipal entities liable only for the entity’s own violation of a federal right. The entity is not liable under § 1983 solely for acts of others, e.g., “solely because it employs a tortfeasor.” Id. at 7 (citing Monell). Court also reviewed Kenosha v. Bruno (U.S. 1973), in which the Court had commented that Congress in § 1983 “did not intend the ‘generic word ‘person’ . . . to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them.’’’ (emphasis in original).

How to Narrow/Break down the Topic: Humphries

Ask series of questions How does this decision impact relationship between

Monell and §1983 on the one hand, and state or federal statutes that require offender registry on the other?

The Court rejected Humphries’ argument that applying Monell’s “policy or custom” requirement to prospective relief claims would leave some ongoing constitutional violations without redress. Humphries did not present any actual or hypothetical examples, despite 4 circuits’ applying Monell to prospective relief. Are there such examples in federal law or in state laws?

How does this decision impact state civil rights statutes that are like § 1983?

Fajans & Falk at 20-22.

Managing topic Up and down ladder of abstraction: macro

focus (greatest level of generality) to micro focus (greatest detail & specificity) How many and which states have statutes

comparable to the California Central Index? How does this decision affect those statutes? What procedures do those states follow that align with/conflict with this ruling?

What Texas laws have provisions that implicate/directly address identification/restrictions for child abusers? Does this decision affect how those provisions will be implemented?

Humphries Decide whether primarily legal or primarily interdisciplinary

(1) How does this decision affect municipal entity accountability for treatment of children? (2) Will this decision affect legal requirements/limitations for child adoption and fostering procedures?

Will this decision affect quality of parent screenings, decisions for children related to home-school, placement, and health, and costs of insuring child safety?

Determine Causation What are the possible impacts of this decision on parents who wish

to adopt or foster? Make comparisons

Compare available mechanisms in various states and municipal entities e.g., California & Los Angeles County, New York & New York City, and Texas & Harris County, for people erroneously identified as child abusers to clear their names. How does this decision affect those mechanisms?

For each of several states, compare that state’s statutes requiring child abuser registry to statutes requiring sex offender registry. Also compare to federal statutes. Do offenders have to register on both? What are legal implications of being registered, social implications? Does Humphries affect registrants’ potential remedies for wrongful registry?

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

changedProbably a combination of 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 result in the following consequences . . . , and therefore should be modified to provide . . . .”

* Volokh at 9.

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

Known case or statute Annotated statutes Shepardize—headnote numbers Key Cite—Key numbers legislative history

No specific starting point Secondary sources

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

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

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 50/50

Prove your thesis Prove your prescriptive proposal

both doctrinally and as a matter of policy.

Be concrete. Confront contrary 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 Small-scale

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

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

UHLC Honor Code & 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

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

What is a paraphrase? 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.

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.

Student Note

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).

Quotes: in a sentence (49 or fewer words) 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: block (50 or more words), Nally

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).

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, NallyParamount 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).

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 concurrence criticized the majority’s construction of the phrase as veering too far afield from established law : “ . . . .”

Attribution Footnote, NallyTinker, 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.).

Textual Footnotes

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, Nally 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 Footnote, Nally2. 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 FootnotesThe 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).

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 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).

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 (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

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 & citations

text 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.

citation 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

Table 1: Abbreviations for federal and state

codes Which code to cite for each state

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

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

Internet, Electronic media, other nonprint resources: Rule 18

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

Cases 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).

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

Constitutions and Statutes

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)

Short Forms

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

Particularly Helpful Tables 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

Internal Cross References

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