1. Preparing a Casenote Professor Tobi Tabor Summer 2006

2. 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).

3. 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.

4. 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

5. Steps Involved  Tasks Required  1. Inspiration 2. Research- preliminary 3. Research-close to complete 4. Drafting 5. More research 6. Revising 7. Polishing  Fajans & Falk at 21. 1. Outline/rough draft 2. Complete draft 3. Good draft 4. 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.

6. Steps & Tasks Integrated 1. Inspiration 2. Research-preliminary 3. Research-close to complete 4. Drafting Outline/Rough Draft Complete Draft 5. More Research 6. Revising Good Draft 7. Polishing Final Product

7. Step 1-Your inspiration* Unresolved or evolving areas of law provide most potential Disputes about the law—split in federal circuits Case before SCOTUS Disputes about direction law should take Something worth writing about—new issue, rule no longer practical Hone it down to manageable size and scope *Fajans & Falk at 21.

8. How to Narrow Topic  : Border Security--Minutemen, National Guard, US Border Patrol Ask series of questions Implications of these groups together on the borders? Are there analogous situations? Effect on Canadian border? Who is affected by this vigilance? Up and down ladder of abstraction: macro focus (greatest level of generality) to micro focus (greatest detail & specificity) What is the genesis of this border security phenomenon? What is the hierarchy among groups? How will they interact, division of labor?  Fajans & Falk at 20-22.

9. Impact of Unauthorized Immigrants Eight states are the primary destinations for unauthorized immigrants, but several other states have substantial unauthorized populations. 300,000-2.3 million: Ariz., Calif., Fla., Ill., N.J., N.Y., N.C., Tex. 200,000-250,000: Colo., Ga., Md., Mass., Va., Wash. Eighteen states and D.C. have 85,000 or fewer.

10. Border Security Decide whether primarily legal or primarily interdisciplinary What is source of power for three groups? How does mix of groups impact our overall sense of societal security? Make comparisons Compare effect on highly populated/less populated states Unauthorized immigrants Border security Determine causation What is likely effect of enhanced border security, mixing military and civilian?

11. 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 changed Probably a combination of both descriptive and prescriptive. * Eugene Volokh, Academic Legal Writing 9 (2d ed. 2005).

12. 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.

13. 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 law is likely to have the following side effects..., and therefore should be modified to provide....” * Volokh at 9.

14. Step 2-Preliminary Research 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

15. Make a Research Plan Has someone else looked into this? 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?

16. 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).

17. 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

18. Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir.), cert. granted, 126 S. Ct. 622 (2005)* Afghani militia forces captured Hamdan in Afghanistan in November 2001. They turned him over to the U.S. military, and he was taken to Guantanamo Bay in Cuba. On July 3, 2003, the President determined “that there is reason to believe that [Hamdan] was a member of al Qaeda or was otherwise involved in terrorism directed against the United States.” This finding brought Hamdan within the President's November 13, 2001, Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833, and Hamdan was designated for trial before a military commission.Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 * Facts are modified from the court’s opinion (3 slides)

19. In December 2003, Hamdan was placed in solitary confinement. That same month, he was appointed counsel, initially only for plea negotiation. In April 2004, Hamdan filed petition for habeas corpus. While his petition was pending, the government formally charged him with conspiracy to commit attacks on civilians, murder and destruction of property by an unprivileged belligerent, and terrorism.

20. Hamdan's trial was to be before a military commission, which consisted of three officers of the rank of colonel. He received a formal hearing before a Combatant Status Review Tribunal, which affirmed his status as an enemy combatant for whom continued detention was required. On November 8, 2004, the district court granted Hamdan's petition in part, enjoining the Secretary of Defense from conducting any further military commission proceedings against Hamdan.

21. Issues* Does the President have the power to establish military commissions to try petitioner and others similarly situated for alleged war crimes in the “war on terror”? Does the 1949 Geneva Convention and its Common Article 3 requirement of sentencing by “regularly constituted courts” protect persons from such commissions? * Issues here and on slides later in presentation are from http://supct.law,cornell.edu/supct/cert/05-184.html

22. 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?

23. 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, you may want to 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

24. The Parts of Your paper: start writing anywhere—end with 4 parts Scholarly papers have a basic four-part structure Introduction Background Analysis Conclusion

25. 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

26. Samples Compare Solomon Amendment note to Women in Workplace article

27. Background Genesis of subject Changes during development Reasons for changes How things are now Reasons for further change(?)

28. Background 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

29. Organization of Background Topically re issue/strand of analysis Chronologically w/in topic Jurisdictionally w/in topic Courts Branches of government

30. Analysis The most important section (1) original thoughts (2) tightly, logically, and creatively reasoned Keep reader’s interest Build to a conclusion

31. 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

32. Prove your thesis Prove your prescriptive proposal both doctrinally and as a matter of policy. Be concrete Confront other side’s arguments, but focus on your own. *Volokh, supra, at 35-38.

33. 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

34. Different Organizational Patterns Alternating Pattern Thesis Statement Overview -- big picture 1. Point 1 Alternative A Alternative B 2. Point 2 Alternative A Alternative B Comparison & Evaluation of Alternatives Divided Pattern Thesis Statement 1. Alternative A 1. Point 1 2. Point 2 3. Point 3 4. Comparative overview of points 2. Alternative B 1. Point 1 2. Point 2 3. Point 3 4. Comparative overview of points Comparison & Evaluation of Alternatives

35. Hamdan v. Rumsfeld Does the President have the power to establish military commissions to try petitioner and others similarly situated for alleged war crimes in the “war on terror”? Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 Uniform Code of Military Justice Inherent powers of executive (Commander-in-chief, war powers, etc.); limit commissions to occupied territories where regular U.S. courts not accessible

36. Does the 1949 Geneva Convention and its Common Article 3 requirement of sentencing by “regularly constituted courts” protect persons from such commissions? Unless determined not POW must be tried in same courts as US soldiers Gen. Con. give rise to individually enforceable rights through habeas corpus Same safeguards as “regularly constituted court” Judicial interpretation of U.S. treaty obligations—infringe on executive powers Reciprocity treaty rights, human rights

37. 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.

38. Step 5—More Research As you draft, research to fill analytical gaps, provide examples, etc. Continuous process Don’t let research prevent or interrupt drafting

39. 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)

40. Plagiarism: Passing Off Another’s Work as Yours UHLC Honor Code: “[Q]uoting, paraphrasing, or otherwise using another's words or ideas as one's own without crediting the source in a way that clearly indicates the nature and extent of the source's contribution to the student's work.”◊

41. 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_pl agiar.html (10/01/02)

42. 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.

43. Footnotes have three functions: provide authority for assertions attribute borrowed ideas & words to a source Provide discursive commentary to supplement text

44. 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

45. Authority Footnotes  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).

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

47. Attribution Footnotes Constitutional 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).

48. Textual Footnotes --how do I use them? textual footnotes 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 not to prove you have thought of every issue

49. Textual Footnotes The 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.

50. 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).

51. 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 source's contribution to the article

52. 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

53. 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

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

55. Typeface & Abbreviations: Case names in Citations 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).

56. 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

57. 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

58. 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

59. 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 Only for two exceptions can you cite electronic source alone

60. 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).

61. 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”

62. 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

63. Short Forms General: Rule 4 Cases: Rule 10.9 Statutes: Rule 12.9 Books: Rule 15.9 Periodicals: !6.7 Electronic: Rule 18.7

64. Table 6: Case Names (335) Abbreviations of common words in case names for use in citation sentences Note rule for plurals-unless otherwise indicated, add “s” to abbreviation: Pharmaseutic[s, al] = Pharm. Note abbreviations may be same for various forms of a word: Econom[ic, ics, ical, y] = Econ.

65. Table 13: Periodicals (349) English language periodicals frequently cited 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-don’t abbreviate Only one word after omitted “a,” etc., don’t abbreviate

66. Internal Cross References Rule 3.5 “supra” and “infra” See supra notes 44-47 and accompanying text. See infra pp. 55-61.