Preparing a Casenote

Professor Tobi TaborSummer 2010

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: Padilla v. Kentucky, 130 S. Ct. 1473 (March 31, 2010).History/facts: Δ entered guilty plea on drug distribution charges. Δ

had been a lawful permanent resident of US for 40 years, and faces deportation to Honduras as a result of conviction. Post-conviction he claimed attorney failed to advise him that deportation was a possible consequence of the plea and told him “not to worry about deportation because he had lived in US for so long.”

Kentucky Sup. Ct. denied relief, finding 6th amendment doesn’t protect Δ from incorrect deportation advice because deportation is a collateral, rather than direct, consequence of conviction.

Cert. granted 02/23/09. Sup. Ct. reversed, holding representation was constitutionally deficient because not advised his plea carried risk of deportation, and remanded for state court to determine if Padilla prejudiced by incompetency and therefore entitled to relief

Padilla v. KentuckyMajority: Stevens, joined by Kennedy, Ginsburg, Breyer,

and Sotomayor

Concurring: Alito joined by Roberts

Dissenting: Scalia joined by Thomas

How to Narrow/Break down the Topic: Padilla v. Kentucky Ask series of questions

Court left open whether distinction between direct and collateral consequences is appropriate in defining scope of “reasonable professional assistance.” How does this decision affect the scope of competency as to:

a) issues other than the specific risk of deportation, such as civil commitment, civil forfeiture, loss of the right to vote

b) what frame of reference is appropriate for courts to rely on to define constitutionally “reasonable professional assistance,” e.g., reference to standards of private bar groups?

Does this opinion change the scope of knowledge required of criminal defense attorneys? Does this opinion lower the bar for proving legal malpractice for criminal defense attorneys?

How does the “floodgates” argument made by the Solicitor General and the State of Kentucky impact this decision? Does the majority deal adequately with the argument?

Fajans & Falk at 20-22.

Managing topic More questions

The Court acknowledged “negotiation of a plea bargain is a critical phase of litigation” for 6th amendment effective counsel purposes. What other events in the criminal process are critical as to 6th amendment concerns, and how does this decision affect counsel’s obligations at those junctures ?

What did majority leave open for lower court to assess? What are some of the concerns implicated by the dissent’s

statement that “[a]dding to counsel’s duties to advise about a conviction’s collateral consequences has no logical stopping point”?

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 state

constitutional or statutory right to counsel? How does this decision affect those provisions? What procedures do those states follow that align with/conflict with this ruling?

What are the Texas law provisions that implicate/provide right to counsel? Does this decision affect how those provisions will be implemented?

Padilla Decide whether primarily legal or

primarily interdisciplinary Will this decision affect requirements for legal education,

bar exams, and attorney grievance procedures? Will this decision affect legal malpractice insurance?

Determine Causation What are the possible impacts of this decision on plea

bargains? Make comparisons

How does the concurring justices’ approach to effective assistance of counsel and validity of the guilty plea compare to analysis of validity of the guilty plea in Fifth and Fourteenth Amendment Due Process jurisprudence?

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 both descriptive and

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

Characteristics of Claim“Good Legal Scholarship should (1) make a claim that is (2) novel, (3) nonobvious, (4) useful, (5) sound, and (6) seen by the reader to be novel, nonobvious, useful, and sound.”*

You identify a problem—doctrinal, empirical, historical—your claim is your proposed solution to the problem.

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

Your ClaimYou 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 Policy “[A] writer may not appropriate in

his writing either the language or the ideas of another without giving due credit to the source of such language or ideas, except as otherwise specifically provided [in the policy].”

“Giving Due Credit to the Source” “What constitutes giving credit to

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

Plagiarism intent not required

plagiarism is still plagiarism, even when it is inadvertent product of careless research (i.e., save those pages from which you expect to quote, note pinpoint cites)

What is a paraphrase? Putting another’s ideas and words into your

own words Not just changing a few words here and there,

even if you cite the source—if you change only a few words, you still need to quote the author’s words

Write your paraphrase relying on your memory, without looking at the original. Then compare “for content, accuracy, and mistakenly borrowed phrases.”*

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

How Do I Use Quotes?

Always provide an introduction that reflects significance of quote: Not “court held,” “commentator said”

Minimize use of quotes, particularly block quotes.

Quotes supplement text; they don’t supplant, i.e., if you take the quotes out, you still have clear, logically developed text.

Footnotes have three functions: provide authority for assertions

attribute borrowed ideas & words to a source

Provide discursive commentary to supplement text

Authority Footnotes--the general rules

substantiate every proposition in text—not your own ideas and opinions

No common knowledge in legal writing background sections need fewer and more

general footnotes see generally and see, e.g.,

use appropriate signals when necessary be sure signal choice is not misleading

do not quote work out of context

use parenthetical explanations to make clear the relevance of citations

Authority Footnotes--Quotes, Concepts, & Principles

Only rights that are specifically enumerated in the Constitution or that are "'so rooted in the traditions and conscience of our people as to be ranked as fundamental"' qualify for this level of analysis. [FN81] Otherwise, courts apply rational basis review, under which a law affecting property or nonfundamental liberties is presumed valid and will survive judicial scrutiny if it is "rationally related to a legitimate state interest." [FN82]

[FN81]. Griswold v. Connecticut, 381 U.S. 479, 487 (1965) (Goldberg, J., concurring) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

[FN82]. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

Material illustrating types of footnotes in these footnote slides is quoted from Adrienne Butcher, Note, Selective Constitutional Analysis in Lawrence v. Texas: an Exercise in Judicial Restraint or a Willingness to Reconsider Equal Protection Classification for Homosexuals?, 41 Hous. L. Rev. 1407 (2004).

Attribution Footnotes—Statements, Ideas, & Structure

--the general rules footnote for borrowed language, facts or ideas 7 consecutive words – use quotation marks if distinctive language – use quotation marks 50 or more words – follow block quote rules footnote citing or quoting source “A” that in turn

quotes or cites “B” Only one level of “quoting” or “citing” is necessary,

unless second level particularly relevant. Rule 10.6.2

reference source and significance as you introduce a quote

The Shasta dissent criticized the majority’s construction of the phrase, remarking: “ . . . .”

Attribution FootnotesConstitutional due process does not operate as a categorical prohibition against state infringement on citizens' rights. [FN78] Rather, it requires a certain level of justification for each imposition, with the level of justification depending on the classification under which the affected rights fall. [FN79]

[FN78]. See Mathews, 424 U.S. at 332 ("Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests....") (emphasis added).

[FN79]. See Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (describing the two primary features of the Court's "established method" for classifying rights to determine the appropriate level of judicial scrutiny).

Textual Footnotes--how do I use them?

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

Use textual footnotes to enrich the theme of your argument

Textual FootnotesThe issue in Griswold was whether a Connecticut statute criminalizing

the use of contraceptives, as it applied to married couples, violated the Constitution. [FN84] The Court found that it did, reasoning that the Bill of Rights created "penumbras," or "zones of privacy," that enveloped marital privacy as a fundamental liberty interest. [FN85]

[FN84]. Id. at 480.

[FN85]. Id. at 484-85. Justice Douglas, defining constitutional penumbras, explained that certain enumerated rights have implied corollaries that expand their meaning beyond what is written. Id. at 483-84. For example, the First Amendment's "freedom of association" extends beyond mere attendance at meetings to include expressing one's ideals through organizational affiliations, although the latter is not enumerated. Id. at 483 (citing NAACP v. Alabama, 357 U.S. 449, 462 (1958)). Justice Douglas also described marital privacy rights as emanating from similar extensions of the First, Third, Fourth, Fifth, and Ninth Amendments. See id. at 484.

Citation Placement in Footnotes Citation Sentences

If the unlicensed individual answers difficult or doubtful legal questions, she has committed the unlawful practice of law. Gardner v. Conway, 48 N.W.2d 788, 796 (Minn. 1951).

Citation Clauses If the unlicensed individual answers difficult or doubtful

legal questions, she has committed the unlawful practice of law. Gardner v. Conway, 48 N.W.2d 788, 796 (Minn. 1951). The courts have suggested that the drafting of a testamentary will by a nonlawyer is the unauthorized practice of law, Peterson v. Hovland, 42 N.W.2d 59, 63 (Minn. 1950), as is the preparation of complicated tax returns, Gardner v. Conway, 48 N.W.2d 788, 796 (Minn. 1951).

What Requires Citation?

Quoting, paraphrasing, or otherwise using another's words or ideas--must credit the source in a way that clearly indicates the nature and extent of the original source's contribution to your article

Proper Citation Form The Bluebook: A Uniform System of

Citation (18th Edition) Locate the Pertinent Rules

Use Quick Reference Pages Use the Index Use the Table of Contents

Read the Main Rules Covering Your Source

Consult Applicable Tables

Different Parts of a Citation Typeface: main text, footnote text, and

footnote citation Abbreviations Source material: case, book, statute,

periodical Date Page: beginning and pinpoint Court/author

Typeface & Abbreviations: Case names in textual sentence & citations 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.

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

Electronic Media & Other Nonprint Sources: Rule 18

The Bluebook requires the use and citation of traditional printed sources unless: Information cited is unavailable in

traditional printed source or Copy of source can not be located because

it is so obscure it’s practically unavailable If one exception met, you can cite electronic

source alone.

Electronic Media & Other Nonprint Sources: Rule 18 Rule 18.1.1: Cases-unreported but

available on widely used database Include case name, docket number,

database identifier, court name, full date, unique database identifier

Gibbs v. Frank, No. 02-3924, 2004 U.S. App. LEXIS 21357 (3rd Cir. Oct. 14, 2004).

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

Internet Rule 18.2: If available, cite to print source

or widely available commercial database Use internet

Source unavailable in print or on widely available commercial database

Available in print but Internet version identical & will increase access: print citation with parallel cite to Internet, preceded by “available at”

Constitutions and Statutes Rules 11 and 12 for print sources Rule 18.1.2

After citation through section number, give parenthetically

Name of database Currency of database (rather than year in

12.3.2) Publisher, editor, or compiler of database

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

Particularly Helpful Tables Table 6: Case Names (335) Table 7: Court names (337) Table 10: Geographical Locations

(342) Table 13: Periodicals (349)

Internal Cross References (63) Rule 3.5 “supra” and “infra” See supra notes 44-47 and

accompanying text. See infra pp. 55-61.