Preparing a Casenote

Professor Tobi Tabor

Summer 2008
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).”
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. Inspiration 1. Outline/rough
2. Research- draft
preliminary
3. Research-close to
2. Complete draft
complete 3. Good draft
4. Drafting 4. Final product
5. More research-fill
gaps
∗ Mary Barnard Ray & Barbara J.
6. Revising Cox, Beyond the Basics 406-
7. Polishing 20 (2d ed. 2003). You may
not write all these stages,
but you will need to address
∗∗ Fajans & Falk at 21. all tasks.
Steps & Tasks Integrated
1. Inspiration

3. Research-preliminary

5. Research-close to complete

6. Drafting
Outline/Rough Draft
Complete Draft
7. More Research
8. Revising
Good Draft
9. Polishing
Final Product
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.
How to Narrow Topic∗: Adoption by
American citizen of child citizen of
foreign country
 Ask series of questions
 Impact re immigration for the child’s natural parents?
Unadopted siblings? Extended family?
 Differences in adoption procedures in various foreign
jurisdictions?
 Validity of decree entered by foreign court?
 Differences in validity of adoption if by state agency,
private agency, birth mother?
 Implications of sparse or no medical records of birth
mother or child?
 Up and down ladder of abstraction: macro focus
(greatest level of generality) to micro focus (greatest detail
& specificity)
 What is frequency of domestic vs. foreign adoptions by
adoptive parents’ ages, income, and education?
 What remedies if foreign adoption is not recognized by
state of parents’ residence ?

∗ Fajans & Falk at 20-22.

Foreign Adoption
 Decide whether primarily legal or
primarily interdisciplinary
 What federal and state laws and regulations govern foreign
adoption? What entities are responsible for enforcing?
 If adopted children satisfy the US immigration health rules
but nevertheless have serious disease, how effectively are
those children integrated into their adoptive families and
communities?
 Determine Causation
 What is the impact of foreign adoptions on domestic
adoptions?
 Make comparisons
 Are adoptions from foreign jurisdictions with more relaxed
rules scrutinized more carefully by the US, and do the
success rates of those approved adoptions compare
favorably with the success rates of adoptions from
countries with stricter rules?
 Do the approved foreign adoptions compare favorably with
 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—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 have the
following side effects . . . , and therefore
should be modified to provide . . . .”
* Volokh at 9.
Step 2-Preliminary
Research
 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.
Cuellar V. United States,
No. 06-1456 (U.S. June 2,
2008)
Cuellar was driving through Texas toward Mexico when
he was stopped for driving erratically. After questioning
Cuellar, officers asked and were given permission to
search his car. While the officers searched, Cuellar
made the sign of the cross, which the officers took to
mean Cuellar thought he was in trouble.
Officers found a secret compartment under the rear
floorboard. Inside was approximately $81,000 in cash,
bundled in plastic and secured with duct tape. There
were signs the compartment had been recently created.
Cuellar was convicted under 18 U.S.C. §
1956(a)(2)(b)(i), a provision of the money laundering
statute that prohibits transporting proceeds of unlawful
activity across the border, knowing the transportation
was designed “to conceal or disguise the nature , the
location, the source, the ownership, or the control” of
the money, i.e., criminalizing certain kinds of
Cuellar
 Analogizing to interpretations of another provision of
the statute-- 1956(a)(1)(B)(i) (criminalizing certain
financial transactions)--the Fifth Circuit panel reversed
the conviction, holding the transportation must be
undertaken in an attempt to create the appearance of
legitimate wealth and although the evidence showed
intent to avoid detection while driving to Mexico, it did
not show Cuellar intended to create the appearance of
legitimate wealth.
 The Fifth Circuit en banc then affirmed the conviction,
rejecting Cuellar’s and the panel’s position that the
government must prove the transportation was
undertaken in an attempt to create the appearance of
legitimate wealth. The en banc court held Cuellar’s
extensive efforts to prevent detection of the money
during transport proved he sought to conceal or
Cuellar: part I-facts/decisions
below; part II-reasoning; part III-
holding
 IIA: the “designed to conceal” element
 American Heritage & Black’s Law dictionaries
 Pennsylvania Dep’t of Corrections v. Yeskey, 524
U.S. 206 (1998)
 United States v. Abbell, 71 F.3d 1286 (11th Cir.
2001)
 31 U.S.C. § 5332
 IIB: whether evidence sufficient to sustain
conviction
 Several cases in footnote 4 re interpretation of
transaction provision to exclude “mere spending”
vis-a-vis “mere hiding”
 Two cases in footnote 5 re substantial efforts to
Cuellar
 Concurrence, Justice Alito, joined
by Chief Justice Roberts & Justice
Kennedy—to summarize
understanding of the deficiency in
government’s evidence
Issues?
 Is the Court’s analysis rejecting the common
definition of “money laundering”—transferring
illicit funds through legitimate sources to
disguise their nature and source– sound? Does
the analysis affect interpretation of related or
similar criminal statutes?
 Does the Court’s analysis and holding affect
the government’s burden of proof in cases
under this statute? Other statutes?
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

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.

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
Different Organizational
Patterns in Analysis
Alternating Pattern Divided Pattern
Thesis Statement Thesis Statement
Overview -- big picture 3. Alternative A
n Point 1
4. Point 1 n Point 2
Alternative A n Point 3
Alternative B n Comparative overview
7. Point 2 of points
Alternative A 4. Alternative B
Alternative B n Point 1
3. Point 3 n Point 2
Alternative A n Point 3
Alternative B
n Comparative overview
of points
Comparison & Evaluation of
Alternatives Comparison & Evaluation
of Alternatives
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
New 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/researc
h/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 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
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
 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.
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).
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
 You can cite electronic source
alone for only two exceptions :
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
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.
Table 10: Geographical
Locations (342)
 for case citations, names of
institutional authors, periodical
abbreviations, foreign materials,
and treaty citations
 State abbreviations in table 10 not
the same as postal abbreviations
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
Internal Cross References
(63)
 Rule 3.5
 “supra” and “infra”
 See supra notes 44-47 and
accompanying text.
 See infra pp. 55-61.