How To Write a Case Comment Presented by The Tax Lawyer & The American Criminal Law Review Introductions • The Tax Lawyer Board Erica, Rob, Katharine, Danielle, Kirsten, Lauren • The American Criminal Law Review Board Jeff, Brittany, Jeff, George, Andrew What Is Write On? • The way you get on a journal for next year • You will need to complete: • Case comment • Blue book test • Optional personal statement • 12 days (May 18 – May 29) • Student ranks journals, then OJA matches • Scores: • Final paper score is average of three judges • Bluebook score is added to the paper score to get packet score • Then Write On packet score is combined with a score based on your grades. What is a Case Comment? • A case comment critiques the decision in a particular case • Should provide your own original analysis of the case Approaches to the case comment • The case was decided incorrectly, because… • The case was decided correctly, but the court’s reasoning was wrong • The whole area of law is a mess • The court missed the point • The court is correct • Something completely different The case was decided incorrectly, because… • Demonstrate why the court’s analysis is wrong • Most common approach • Must be careful not to mimic the dissent The case was decided correctly, but the court’s reasoning was wrong • Demonstrate that the court applied the wrong reasoning and explain why this was the wrong approach • Must be careful to distinguish your reasoning from the court’s reasoning The whole area of law is a mess • Use the principal case to suggest your own approach to the area of law • Most ambitious approach • Make sure your approach is logical, yields consistent results, and has public policy support The court missed the point • Analyze a different issue in the case that you think the court missed • Make sure to incorporate the principal case and the other materials in the write-on packet The court is correct • Demonstrate that the court was 100% correct • Address the relevant counterarguments • Make sure not to simply repeat the court’s opinion Something completely different • Use the case as a springboard for an original legal idea of your own • Make sure the materials in the write-on packet support your idea Reading The Packet What’s Provided • Preparing for the Packet • Procedures • Reading the Packet Preparing for the Packet • Attend the Case Comment Workshop • Read Preparation for the 2012 Write On Competition: How to Write a Case Comment: - This guide serves as a reference and includes: 1) Procedures & Write On Competition Requirements 2) Technical Aspects of Writing a Case Comment 3) Sample Case Comments Procedures • Packet Purchase & Availability – Dates of Competition: 5/18-5/29 • Turning in Submissions – Carefully read the Write On packet instructions – Upload the completed materials & supplemental materials to the competition website early • Write On Packet Contents – Consists of the case that you will be expected to analyze using only the materials provided in the packet (i.e. the packet will include other cases, secondary sources, etc.) Procedures • Restrictions DURING the Competition: - You may only use the materials provided in the packet, a dictionary, legal dictionary, thesaurus, and your Bluebook. - You may not consult any additional materials during the competition. - You are NOT allowed to do any outside research. - You may not discuss and/or receive any assistance during competition. Reading the Packet • What You Will Be Given: – The principal case on which you are to comment – Maybe a lower court decision – Cases that bear on the principal case – Maybe statutes and legislative history, if appropriate – Maybe law review articles – Maybe newspaper, magazine, or other periodical articles Reading the Packet • Helpful Hints: – Do not confuse the lower court case with the case that you are supposed to be analyzing. The other cases are included only to give you some basis for commenting on the principal case. – You do not need to cite everything in the packet in your comment. Your thesis might be narrowly defined to eliminate the need to cite everything and some of the cases might be superfluous. – However, you should be aware that the cases are there for a reason. A dearth of sources in your comment will be noted. Reading the Packet • Devote two days just to reading, more if briefing, the packet. • Decide how you want to read the packet: – Chronologically • Makes the most intuitive sense, so you can get an idea of the development of the law. – In order of importance • Also makes sense, but you will not have a very good idea of the order of importance until you read a few cases. – Order in which the cases are given to you • Takes less thought. How To Craft a Thesis Statement • • • • • Choose Your Approach Review the materials carefully Get to the POINT!!! A Few Examples Remember the Big Picture Choose your approach • After reading, decide what your case comment will argue: – The case was decided incorrectly. – The court is correct, but for the wrong reasons. – This whole area of law is a mess, and you can do better. – The court missed the point. – The court is correct. – Your own legal pyrotechnics. Remember: Review the Materials Carefully • As you read through the packet, did one view or the other jump out at you? • Which argument feels most natural to you? • Carefully noting and keeping track of your sources will help you with this. It may help to do a review of your materials and note which cases support each approach. Get to the POINT. • Your thesis statement should be extremely clear about your argument. • It is perfectly appropriate to use direct language, for example: – “This Comment will argue that…” A Few Examples • This Comment will argue that the Fourth Circuit should have relied on Virginia state law to dispose of the publicity element in Sciolino v. City of Newport News. • This Comment will argue that the Eighth Circuit should have applied a balancing test in analyzing the endorsement clause in Wersal v. Sexton. Remember the BIG Picture • Make sure your thesis is streamlined and hones in on the key point of your argument. • Your roadmap and the rest of your case comment will provide the information supporting your thesis. Formal Requirements: Footnotes & Page Length • A case comment has two main parts: – Analysis—up to seven pages (but no more!) • Shorter than a true publishable case comment you must focus on only the major points/critiques – Endnotes—up to three pages • All the citations in the case comment should be placed in endnotes that follow the analysis • Read the instructions carefully for specific formatting instructions (different for the two parts) Formal Requirements: Footnotes & Page Length • Usually, the analysis includes 4 parts: – Introduction (facts, procedural history, and holding)—2–3 pages – Roadmap—about ½ page – Actual Analysis—3–4 pages – Conclusion—about ½ page • When editing for length, avoid sacrificing your actual analysis Formal Requirements: Footnotes & Page Length • All citations should be placed in endnotes – Read the instructions to make sure you format the endnotes correctly • The Three Primary Endnote Functions – Direct Citation—when expressly referencing information found in the materials – Supportive Citation—when stating a legal contention that is supported by information in the materials – Ancillary Points—to provide the reader with analysis that is useful but tangential to your main points Formal Requirements: Footnotes & Page Length • Read Bluebook Rule 1.1(a) for the rules on placing the endnote call numbers within your textual sentences • Read Bluebook Rules 1.2–1.5 for the rules on using signals and parantheticals that are appropriate to the purpose of a particular endnote (direct citation, supportive citation, etc…) • Read Bluebook Rule 3.5 for the rules about using “supra” and “infra” for internal cross-references • Read Bluebook Rule 4.2 for the rules on using “supra” and “hereinafter” as short citations in appropriate circumstances Formal Requirements: Sections • Introduction A. Statement of Facts B. Holding C. Roadmap • Analysis • Conclusion • The Statement of Facts & Holding can be switched, depending on how persuasive/interesting your facts are Statement of Facts • 1-2 pages • Relay any facts that are interesting and are essential to your argument, just like LRW. • Objective, academic tone Holding • ½ - 1 page • Analogous to the “Statement of the Case” in a brief. • Explain the court’s reasoning behind the outcome Roadmap • ½ page • Provide the Reader with your Thesis Statement • Lay out the different aspects of your argument, corresponding with your headings • Convince the reader why this issue is important and how your argument demonstrates the optimum outcome • Should be introduced with language like “This Comment will argue…” Analysis • Constitutes the majority of your comment • Should be organized around headings & subheadings • Remember, you only have 7 pages, so keep it relevant and concise • Outlining will be your best friend! Conclusion • • • • ½ Page Sum up the different prongs of your argument. Mirror your roadmap! Briefly restate the underlying reasoning for your argument and what outcome you are advocating for Examples: Support & Citation • A footnote MUST be used when . . . • You cite an authority in the text • In Siefert v. Alexander,28 a sitting Wisconsin judge brought . . . • It is necessary to back up a proposition • Criminal voter disenfranchisement laws have existed for centuries.1 • You may also use a footnote to make an ancillary point • The court’s finding of ambiguity is questionable, but is uncontested for purposes of this Comment. 39 How Do I Use Footnotes? • **ALWAYS refer to the white pages of the Nineteenth Edition of The Bluebook** • Here are some common problems in write-on citation formatting: • 1. Italicization – Bluebook 2.1(a) • Use ordinary roman type for case names in full citations: • • Richardson v. Ramirez, 418 U.S. 24, 54 (1974). Except for procedural phrases, which are always italicized: • • 41 36 See In re Vincent, 172 P.3d at 608 (citing In re Raab, 793 N.E.2d 1287, 1290 (N.Y. 2003)). Use italics for the short form of case citations: • 44 See Wersal, 613 F.3d at 836-37. How Do I Use Footnotes? 2. Short Cites – Bluebook 10.9(a) • In law review footnotes, a short form for a case may be used if it clearly identifies a case that (1) is already cited in the same footnote or (2) is cited in one of the preceding five footnotes. Otherwise a full citation is required. • 36 Johnson, 405 F.3d at 1234. NOT: 44 See Wersal, 613 F.3d at 836-37. 37 Id. at 1232. 45 Carey, 614 F.3d at 194. 38 Id. 46 129 S. Ct. 2252 (2009). 39 The court’s finding . . . 47 See id. at 2257. 40 Johnson, 405 F.3d at 1234. 48 See id. at 2257-58. 49 See id. at 2265. 50 See Wersal, 613 F.3d at 854. How Do I Use Footnotes? 3. Internal Cross-References / Supra – Bluebook 3.5 & 4.2 • Portions of text, footnotes, and groups of authorities within the piece may be cited using “supra” or “infra.” • Supra may also be used as short form citations for some sources. • Proper format: See Smith, supra note XX, at XXX. • 11 See Gray, supra note 6, at 26. NOT: 8 See Varnum, supra note 2 at 134. 4. Id. – Bluebook 4.1 • Id. can be used for any type of authority except internal cross-references. • Id. may not be used if the preceding footnote contains more than one authority. o Sources identified in explanatory parentheticals, explanatory phrases, or prior/subsequent history are ignored for purposes of this rule. Thus: • 26 Id. at 1217 (citing Johnson v. Governor of Florida, 353 F.3d 1287 (11th Cir. 2003), vacated 377 F.3d 1163). 27 Id. How Do I Use Footnotes? 5. Signals – Bluebook 1.2 • It is possible, and not uncommon, to incorrectly use introductory signals. • Don’t just use see on every footnote “to be safe.” • Review the descriptions in The Bluebook, and use the signals accordingly. • Use commas and italics when appropriate. • 56 See, e.g., Hunter v. Underwood, 471 U.S. 222 (1985). NOT: 3 See, e.g. Wesley v. Collins, 791 F.2d 1255, 1261-62 (6th Cir. 1986). • 52 Compare Caperton, 129 S. Ct. at 2266 (recusal required in cases where “the judge’s impartiality might reasonably be questioned”), with Wersal, 613 F.3d at 836 (same). Comparing Good & Bad Examples: Roadmap & Analysis • Components of an Effective Roadmap – Explains why the issue is important and describes the discussion and thesis. – Purpose is to inform the reader about what is coming so subsequent material is relevant and falls into place. • Components of an Effective Analysis – Organization corresponds to roadmap – Analysis ties to the thesis and argument using cases and secondary sources – Stays on topic and discusses only what is relevant to the analysis Roadmap Examples Example 1: • This comment will argue that, instead of relying on a strict scrutiny standard, the Eighth Circuit should have adopted a more deferential balancing test when analyzing the constitutionality of Minnesota’s endorsement clause. This approach would have allowed the court to uphold the endorsement clause and brought the Eighth Circuit in line with the unanimous authority of state and federal courts upholding the constitutionality of judicial endorsement prohibitions. First, in summarily applying strict scrutiny review to the clause at issue, the Eighth Circuit ignored the underlying rationale for the strict scrutiny standard set forth in White I. Second, any argument that the balancing test employed in other jurisdictions is inapplicable because Wersal was a judicial candidate rather than a sitting judge fails, as the original logic justifying application of a balancing test to speech restrictions requires no such distinction between the two categories. Finally, recusal alone is not a sufficiently strong safeguard for Minnesota’s interest in maintaining an impartial judiciary. The Wersal decision therefore significantly undermined this interest when it struck the Minnesota endorsement clause. Roadmap Examples Example 2: • This comment will argue that the Eighth Circuit’s strict scrutiny analysis in Wersal fails to properly consider litigants’ right to due process under the 14th Amendment to the U.S. Constitution. In cases that pit two competing constitutional rights against each other, courts have recognized that “limited deference” should be shown to the legislature that may not necessarily be warranted when only one constitutional issue is at stake. Instead of limited deference, the Wersal decision seems almost willful in its failure to recognize the competing constitutional principles of free speech and due process. In addition, this comment will argue that the due process analysis in Wersal is insufficient in light of the Supreme Court’s decision in Caperton v. A.T. Massey Coal Company. Analysis Examples Example 1: • A. The Wersal Court’s Application of Strict Scrutiny Misapplies the Rationale of White I. In failing to consider a balancing test as an alternative to strict scrutiny review when analyzing Minnesota’s endorsement clause, the Eighth Circuit stripped the White I holding of its original rationale. It is undisputed that the freedom of speech “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” However, the White I Court emphasized that the protected speech at issue necessitated strict scrutiny review because it prevented judicial candidates from speaking about their own qualifications for public office. While the announce clause struck down in White I, which prohibited judicial candidates from speaking about legal or political issues, plainly prevented candidates from discussing their qualifications for office, the judicial endorsement prohibition at issue in Wersal does not. A judicial candidate’s endorsement of another candidate is primarily an effort to affect a separate political campaign, rather than a communication of the judicial candidate’s own qualifications. Before applying strict scrutiny, the Eighth Circuit should have recognized the distinction between the need to allow judges to speak freely on the issues of the day, and the state’s interest in maintaining a judiciary uninvolved in the political machinations that accompany political endorsements. Because Minnesota’s endorsement clause is aimed at prohibiting judicial candidates from becoming caught up in political machinations, rather than at prohibiting candidates from speaking freely on the issues of the day, White I did not require the Wersal court to apply strict scrutiny. Analysis Examples Example 2: • When the court is weighing competing constitutional interests, courts have said that there is a place for limited deference within the framework of strict scrutiny. Because competing constitutional concerns require legislators to engage in a balancing of interests, there is a greater likelihood that laws may be either overinclusive or underinclusive, and therefore the courts should be less exacting in applying the “narrowly tailored” prong of the strict scrutiny test. Perhaps the majority’s awareness of the “limited deference” exception explains why the Wersal decision seems to go to great lengths to avoid acknowledging that the judicial bias is more than an ordinary policy concern, but is in fact a constitutional concern of the “highest order.” Wersal focuses instead almost exclusively on the impact of the judicial regulations on speech. Tellingly, the Court utters the phrase “due process” (as it relates to judicial bias) only five times across three paragraphs, and at no point does the Court note that “the impartiality guaranteed to litigants through the Due Process Clause” is a “basic concept” of the United States Constitution. As another Eighth Circuit judge wrote in White II: “Referring to constitutional rights [in judicial election context], without even mentioning due process is stunning shallowness.” Timeline – Non-working Students • Write-on competition dates: May 18-29. • That is 12 days, two weekends, and a holiday! There is plenty of time to complete the competition on your own schedule. This is merely a guide. • Remember to budget time for the Bluebook Exam. Timeline – Non-working Students • May 18-19: Bluebook Exam. – While not worth as much to your score as the Case Comment, doing the exam first will help to familiarize yourself with some of the more obscure rules in the Bluebook. This may ultimately improve the quality of your footnotes when it comes time to write the Comment. – The Bluebook Exam could easily be completed after you finish your Comment, instead. Timeline – Non-working Students • May 20-21: Read the cases. – Only read them; do not brief! But be sure to think about the cases critically and holistically in an attempt to develop a loose thesis. • May 22-23: Brief the cases. – Read the cases again, “briefing” them with an eye towards your thesis. • May 24: Outline your Comment. – Make this meaningful!! – Think about your headers. Note which cases you want to discuss at certain points in the argument section. Timeline – Non-working Students • May 25: Take the day off from “working.” – Use this time to let your ideas percolate and develop. If you come up with anything new, jot it down on your outline. • May 26-28: Write your Comment. – If your outline was good, this will be easy! – If you decide to make changes to your argument, you will have plenty of time to incorporate them. • May 29: Perfect your Comment. – Do your best to remove any errors from your Comment. Do not make substantive changes. Timeline – Working Students • • • • • • • May 18-19: Blue Book Exam May 20-21: Read cases May 22-23: 2 hours each night briefing cases May 24: Outline your case comment May 25: TGIF – take a break and rest. May 26-28 Finish outline, write comment May 29: Proofread and submit! Other Resources • EUGENE VOLOKH, ACADEMIC LEGAL WRITING (3d ed. 2007). • ELIZABETH FAJANS & MARY R. FALK, SCHOLARLY WRITING FOR LAW STUDENTS (3d ed. 2005) • YOU CANNOT CONSULT THESE ONCE WRITE ON HAS STARTED!!! Ask A Judge!