Professor Tobi Tabor
Summer 2012
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“[T]he purest form of critical writing is
scholarly writing—the sharing within the
legal community of new ideas about the
law.” 1
“[L]egal scholarship is characteristically
normative (informed by a social goal) and
prescriptive (recommending or
disapproving a means to that goal).”2
1 Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 2 (4th ed. 2011).
2 Id. at 4.
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Factually Correct
Logical Analysis
◦ well and sufficiently reasoned and divided into
mutually exclusive, yet related sections
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Clear and readable
◦ Somewhat formal style
◦ Not pompous or colloquial
1.
2.
3.
4.
5.
6.
7.
Inspiration
Research-preliminary
Research-close to
complete
Drafting
More research-fill
gaps
Revising
Polishing
¹ Fajans & Falk at 21.
1.
2.
3.
4.
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.
1.
Inspiration
2.
Research-preliminary
3.
Research-close to complete
4.
Drafting
Outline/Rough Draft
Complete Draft
6.
More Research
Revising
7.
Polishing
5.
Good Draft
Final Product
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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
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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
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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).”³
Claim is your solution to a problem you have identified. Or Dispute you
have identified and rationale for why it was rightly/wrongly resolved. ª¹
Topic must be narrowed to manageable proportions to formulate
thesis.ª²
1 Fajans & Falk, at 14.
2 Eugene Volokh, Academic Legal Writing 10 (4th ed. 2010).
3 Fajans & Falk, at 14.
ª¹ Volokh, supra note 2.
ª² Id.
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In Descriptive part of claim—the world as it was/is—the most plausible
explanation of facts you have discovered²
◦ Historical question
◦ A claim about a law’s effects
◦ A statement about how courts are interpreting the law
In Prescriptive part of claim—what should be done—the best solution you can
suggest
◦ How a law should be interpreted
◦ What new statute should be enacted
◦ How a statute or common-law rule should be changed
1 Volokh, at 10.
2 Id. at 21.
You should be able to state your claim in
In one sentence.¹
“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 . . . .”
1 Volokh at 9.
“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.”
¹ Volokh at 21.
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Novel:
◦ Add something to the state of expert knowledge about the field.
◦ Nuance:
◦ 1. “[W]hat special factors—for instance, government interests or individual
rights —are present in some situations covered by your claim but not in others.
Could you modify your claim to consider these factors?”
◦ 2. Do your arguments in support of your claim work well in some cases but
badly in others? Can you limit your claim accordingly?
◦ 3. Simple “yes” and “no” answers in legal writing often attract more writing. Can
you come up with a plausible “yes” in some cases, “no” in others?
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Nonobvious:
◦ Claims that “just apply settled law or well-established arguments to slightly
new fact patterns [] tend to look obvious.”
◦ Add a twist—more nuance: e.g., if leading precedent in the field doesn’t
squarely support your claim, acknowledge and fill in support with other
precedent and policy arguments
¹The concepts and descriptions of novelty, nonobviousness, utility, & soundness on
this and the following slides are excerpted from Volokh at 21-35.
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Some readers should find idea professionally
valuable
◦ Questions left open or created by decision: how
should they be resolved?
◦ Apply to other jurisdictions (e.g., conduct violates
4th amendment; also violate state constitutions?)
◦ Include prescriptive implications
◦ Avoid language, examples, & jargon that will
unnecessarily alienate readers, “anti-choice,” “gun
lobby,” “fanatic.” “[I]n general, don’t weaken your
core claim by picking unnecessary fights.”1
1 Volokh at 28.
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“Avoid
◦ excessive mushiness”
◦ reliance on legal abstractions”
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e.g., “single-sex educational programs
should be legal if they have been shown in
controlled studies to be more effective than
co-ed programs” probably more defensible
than “single-sex educational programs
should be legal if they are reasonable.”
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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.
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Narrow thesis/claim?
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Research sources?
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Lines of analysis?
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¹ These techniques are discussed in Fajans & Falk at 20-22.
1st: Interdisciplinary/law only ¹
Then:
Macro-micro
Comparisons
Causation
Questions
◦ Who has authority
◦ Where find sources
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Decide whether primarily legal or primarily
interdisciplinary
◦ What are the implications of the decision for some or all ofchildren,
parents, schools, area service providers?
◦ What federal and state laws and regulations govern rights and
protection of students in schools? What entities are responsible for
enforcing?
◦ If children are consistently bullied, how effectively can they integrate
into further education and then into the workforce?
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Up and down ladder of abstraction: macro focus
(greatest level of generality) to micro focus (greatest
detail & specificity)
◦ In what venues does court address bullying? What effect on venues
not specifically included? What remedies?
◦ What is frequency and type of public school vs. private school
bullying by bullies’ ages, school grade, gender?
◦ What gender and age group(s) are most susceptible to bullying, what
assistance is available?
¹ Fajans & Falk at 20-22.
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Make comparisons
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Determine Causation
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Ask series of questions
◦ How does decision affect states’ laws? School districts’ rules?
◦ Is bullying more prevalent in the United States than in foreign jurisdictions
(those consistently subject to violence vs. those generally peaceful), in
certain states than in others?
◦ Are bullies more likely to succeed in the workforce (have to define
“succeed”) than their victims, their acolytes, the bystanders?
◦ How will the court’s decision impact state and school district budgets?
◦ What is the long-term impact of bullying on the bully, the victim?
◦ Are bullies, victims, bullies’ acolytes, bystanders at higher risk than the
remaining school population to physically harm themselves?
◦ What acts constitute bullying?
◦ Who does the bullying: gender, age, etc.?
◦ What obligations do schools have to prevent or penalize bullying, help
victims?
◦ Differences in amount of bullying in public and private schools, middle
and high schools?
◦ What influence does media have?
◦ What role can pediatricians, psychologists play to prevent bullying, help
victims?
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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
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Known case or statute
Annotated statutes
Shepardize—headnote numbers
Key Cite—Key numbers
legislative history
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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?
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Take good notes so you don’t lose your original
reactions to material.
Don’t read just to summarize.
Ask questions-
◦ implications & consequences of writer’s position?
◦ Writer’s inferences & conclusions—adequately
supported?
◦ Purpose of the text well-stated, justifiable?¹
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Find the holes in what you’re reading, the
inconsistent reasoning, conflict with precedent
(will help you focus on thesis and analyze topic
critically).
¹ These and critiquing techniques found in Fajans & Falk at 28-30.
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What sources might you be looking for?
Statutes and regulations: U.S. & foreign
Treaties, Conventions, Protocols
Cases
Secondary sources: academic perspective,
practical perspective
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As you write, research to fill analytical gaps,
provide examples, etc.
Statutes and regulations
◦ U.S.
◦ States
◦ Legislative history—comments on the floor,
committee reports, hearing transcripts, session laws
(findings and purpose)
Treaties, Conventions, Protocols
Cases
Academic articles
◦ Comparisons, critiques, rationales
◦ Policies
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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
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Madman
Architect
Carpenter
Judge
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Fill in content in organizational structure
Let creativity flow
minimize rewriting—keep the Judge at bay—
this is Madman’s opportunity to have “one
more idea”
Try to get most ideas down before rewriting
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Scholarly papers have a basic four-part
structure
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Introduction
Background
Analysis
Conclusion
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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
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5-7.5% of paper
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General background
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Origin 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
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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
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Topically re issue/strand of analysis
Chronologically w/in topic
Jurisdictionally w/in topic
◦ Courts
◦ Branches of government
 The
most important section
◦ (1) original thoughts
◦ (2) tightly, logically, and creatively
reasoned
 Keep
reader’s interest
 Build to a conclusion
 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
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Prove your prescriptive proposal both
doctrinally and as a matter of policy.
Be concrete.
Confront contrary arguments, but focus on
your own.
Volokh at 35-38.
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Large-scale
◦ Divide into major issues/strands of analysis—use
informative headings
◦ Subdivide--subheadings
◦ Order logically—headings & subheadings should
be logical outline
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Small-scale
◦ Introduce and conclude on each issue
◦ Focus on your arguments
◦ Rebut major opposing arguments
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Restate thesis
Summarize major points
“[M]ay suggest related issues or ramifications,
inviting the reader to further reflection.”¹
5-7.5% of paper
¹ Fajans & Falk at 9.
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As you write, research to fill analytical gaps,
provide examples, etc.
Continuous process
Don’t let research prevent or interrupt writing
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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.
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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)
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“[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].”
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“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 . . . [,]” and the Plagiarism Policy has
examples.
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Putting another’s ideas and words into your own words
Get the essence of the statements and rephrase in your
own words
Not just changing a few words here and there, even if
you cite the source
Write paraphrase relying on your memory, without
looking at the original.
Then compare for content, accuracy, and mistakenly
borrowed phrases.
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Always provide an introduction that reflects
significance of quote:
◦ Not “court held,” “commentator said”
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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.
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The text and footnote excerpts on the
following slides are all quoted from the
following student note:
Adam K. Nalley, Note, Did Student Speech Get
Thrown Out with the Banner? Reading “Bong
Hits 4 Jesus” Narrowly to Uphold Important
Constitutional Protections for Students, 46
Hous. L. Rev. 615 (2009).
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Under the standard put forth by the Court, a
school’s control extends over student
expression in the context of any activity
that, “students, parents, and members of
the public might reasonably perceive to
bear the imprimatur of the school." [Nally,
footnote omitted]
FN 105. Maring, supra note 72, at 688-89. See generally Charles C. Haynes,
et al., The First Amendment in Schools 59.65 (2003) (identifying and
explaining the “three tests” developed by the Supreme Court from the
landmark student speech cases: Tinker, Fraser, and Hazelwood). Justice Alito,
while sitting on the Third Circuit Court of Appeals, provided a good summary
of the types of speech these cases allow schools to prohibit:
To summarize: Under Fraser, a school may categorically prohibit
lewd, vulgar or profane language. Under Hazelwood, a school may
regulate school sponsored speech (that is, speech that a reasonable
observer would view as the school's own speech) on the basis of
any legitimate pedagogical concern. Speech falling outside of these
categories is subject to Tinker's
general rule: it may be regulated
only
if it would substantially disrupt school operations or interfere with the
right of others.
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001).
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provide authority for assertions
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attribute borrowed ideas & words to a source
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Provide discursive commentary to supplement
text
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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.,
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use appropriate signals when necessary
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do not quote work out of context
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use parenthetical explanations to make clear the relevance of
citations
◦ be sure signal choice is not misleading
Paramount and MTV films are currently producing a film about “a young man
standing up for his rights” after he was suspended for flying a fourteen-foot
banner the phrase “Bong Hits 4 Jesus” outside his school. [FN 1] The movie is based
on the real life story of Joseph Frederick, who made national headlines when he
challenged his suspension all the way to the Supreme Court. [FN 2] It is the story of
a high school senior who, in an effort to show he would not “bow down in
submission before an authority,” created a banner with a large piece of paper,
three dollars worth of duct tape, and a peculiar phrase that would become the
subject of a Supreme Court case. [footnote omitted].
FN 1 Jeff Giles, Paramount, MTV Doing Bong Hits 4 Jesus, Rotten Tomatoes, Oct.
22, 2007,
http://www.rottentomatoes.com/m/jesus_loves_me_lets_sing_about_doing_your_b
est_in_school/news/1682499/.The film’s producers compare it to the classic Mr.
Smith Goes to Washington. Id.
FN 2 Id.; see, e.g., Linda Greenhouse, Court Hears Whether a Drug Statement is
protected Free Speech for Students, N.Y. Times, Mar. 20, 2007, at A16 (describing
the interactions between the attorneys and the Supreme Court Justices during oral
arguments).
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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 concurrence criticized the majority’s construction of the phrase
as veering too far afield from established law : “ . . . .”
Tinker, therefore, provides a strong safeguard under the First
Amendment for student speech in a school setting. [FN 81] Under
Tinker, a student’s expressive activity or speech is protected as a
First Amendment right if it does not materially disrupt a school
activity, but school authorities maintain “broad authority to restore
order” when the student’s speech or expressive conduct does result
in a material and substantial disruption. [footnote omitted].
FN 81 See Chemerinsky, supra note 73, at 532 (declaring that the protection
of student speech under the First Amendment is a core theme of the
majority opinion); see also Cambron-McCabe et al., supra note 76, at 118
(noting that Tinker allows students to express opinions on controversial
issues in the classroom, cafeteria, playing field, or any other place.).
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supplement your text
◦ clarify or qualify an textual assertion
◦ raise potential criticisms or complications
◦ relate anecdotes pertinent to text
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Use to enrich the theme of your argument
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Paramount and MTV films are currently producing a film
about “a young man standing up for his rights” after he was
suspended for flying a fourteen-foot banner the phrase “Bong
Hits 4 Jesus” outside his school. [FN 1]
[FN 1] Jeff Giles, Paramount, MTV Doing Bong Hits 4 Jesus, Rotten Tomatoes,
Oct. 22, 2007,
http://www.rottentomatoes.com/m/jesus_loves_me_lets_sing_about_doing_y
our_best_in_school/news/1682499/.The film’s producers compare it to the
classic Mr. Smith Goes to Washington. Id.
2. Justice Thomas’s Concurrence: Students Have No Free
Speech Rights. [FN 43] Justice Thomas joined the majority in deciding
that a public school may prohibit speech that advocates illegal
drug use. [footnote omitted]
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FN 43. A full analysis of Justice Thomas's concurring opinion is beyond the
scope of this Note. His opinion alone is worth an entire article. For example, did
the Founders truly intend for the government to compel children to attend a
government school and then afford those children no right to disagree with
government policy in a nondisruptive manner? See id. at 2630 (Thomas, J.,
concurring) (opining that, as originally understood, the First Amendment does
not extend to student speech in public schools). Did Justice Thomas manipulate
originalism to reach a desired political result that children should be seen and
not heard? See id. at 2631 (“[I]n the earliest public schools, teachers taught, and
students listened.”). How does this opinion reflect Justice Thomas's First
Amendment jurisprudence? [additional citations omitted].
The majority opinion also held that the banner could be reasonably
interpreted as promoting illegal drug use. [FN 107]
[FN 107]. Morse, 127 S. Ct. at 2624-25; see also supra Part II.C.1 (discussing
potential meanings on the banner). It is worth noting that the Court could
have dismissed the school’s appeal if it found the meaning of the sign
impossible to determine. See Brief of the Liberty Legal Institute as Amicus
Curiae in Support of Respondent at 3-5, Morse, 127 S. Ct. 2618 (No. 06-278)
[hereinafter Brief of the Liberty Legal Institute]. The sign, instead of being
interpreted as promoting illegal drug use, could have been interpreted in a
variety of constitutionally protected manners—for example, it could plausibly
have been construed as “anti-religious” and thus “clearly protected.” Id. at 3. .
. . See infra Part III.C (discussing the impact of the Court’s holding in Morse
on student speech rights).
Adam K. Nalley, Did Student Speech Get Thrown Out with the Banner?
Reading “Bong Hits 4 Jesus” Narrowly to Uphold Important Constitutional
Protections for Students, 46 HOUS. L. REV. 615, 632-33 & n.107(2009).
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Citation Sentences
◦ If the unlicensed individual answers difficult or
doubtful legal questions, she has committed the
unlawful practice of law.¹
¹ Gardner v. Conway, 48 N.W.2d 788, 796 (Minn.
1951).
Citation Clauses
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).
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
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The Bluebook: A Uniform System of
Citation (19th Edition)
Locate the Pertinent Rules
◦
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Use Quick Reference Pages inside front & back
covers)
Use the Index
Use the Table of Contents
Read the Main Rules Covering Your Source:
switch to white pages
Consult Applicable Tables
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Typeface: main text, footnote text, and
footnote citation
Abbreviations
Source material: case, book, statute,
periodical
Date
Page: beginning and pinpoint
Court/author
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In main text: In Southern
Pacific Co. v. Jensen,¹
Justice McReynolds stressed
the value of uniform laws.
¹ 244 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.
tTextext
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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).
citation
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Rule 12.3: Current Official & Unofficial Codes
◦ Large & small caps
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Table 1:
◦ Abbreviations for federal and state codes
◦ Which code to cite for each state
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Rule 15.1: Author
◦ large & small caps
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Rule 15.3: Title
◦ no abbreviations
◦ large & small caps
◦ Rule 8(a):Capitalization in Titles
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Rule 16.1: Author
◦ Ordinary roman
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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
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Rule 18.2: cite to print source when
available unless there is available a digital
copy that is authenticated, official, or exact
copy of printed source
Rule 18.2.1: (a) sources that can be cited as
if to original print source: authenticated,
official, exact copies; (b) when URL should
be appended; (c) sources using “available
at.”
Rule 18.2.2: direct citations to internet
sources
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Rule 18.3.1: 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, at *18 (3d Cir. Oct.
14, 2004).¹
Shelton v. City of Manhattan Beach, No.
B171606, 2004 WL 2163741, at *1 (Cal.
Ct. App. Sept. 28, 2004).²
¹ This citation is in a footnote. If it were in a textual sentence,
the case name would be italicized.
² This citation is in a footnote. If it were in a textual sentence,
the case name would be italicized.
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Rules 11 and 12 for print sources
Rule 18.3.2
◦ 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 (unless state
or federal officials)
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General: Rule 4
Cases: Rule 10.9
Statutes: Rule 12.10
Books: Rule 15.10
Periodicals: 16.9
Electronic: Rule 18.8
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Table 6: Abbreviations for Case Names in
citations
For case names in textual sentences—main
text or footnote text–Rule 10.2.1 (c) & Rule
6.1 (b)
Table 7: Court names
Table 10: Geographical Locations
Table 13: Periodicals
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Rule 3.5
“supra” and “infra”
See supra notes 44-47 and accompanying
text.
See infra pp. 55-61.
Supra also used for other sources.
Rule 4.2