Preparing a Casenote

Preparing a Casenote Professor Tobi Tabor Summer 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

Inspiration Research-preliminary Research-close to complete Drafting More research-fill gaps Revising Polishing  Fajans & Falk at 21. Outline/rough draft Complete draft Good draft 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 InvolvedTasks Required 

Steps&Tasks Integrated • Inspiration • Research-preliminary • Research-close to complete • Drafting Outline/Rough Draft Complete Draft • More Research • Revising Good Draft • 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. Kentucky Majority: 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 changed Probably 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—yourclaim 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 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” thatin 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 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).

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 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.

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

Preparing a Casenote