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 lawschool-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
Steps Involved
Tasks Required 
1.
2.
3.
4.
5.
6.
7.
Inspiration
Researchpreliminary
Research-close to
complete
Drafting
More research-fill
gaps
Revising
Polishing
 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.
Steps & Tasks Integrated
1.
Inspiration
2.
Research-preliminary
3.
Research-close to complete
4.
Drafting
Outline/Rough Draft
Complete Draft
5.
6.
More Research
Revising
Good Draft
7.
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



Determine Causation


Will this decision affect requirements for legal education, bar
exams, and attorney grievance procedures?
Will this decision affect legal malpractice insurance?
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—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 result in the following
consequences . . . , and therefore should be
modified to provide . . . .”
* Volokh at 9.
Where would you start?

Thesis/claim?

Narrow topic






Research sources?



Questions
Macro-micro
Interdisciplinary/law only
Comparisons
Causation
Who has authority
Where find sources
Lines of analysis?
Step 2-Preliminary Research

Research Plan



Known case or statute





List major points—roadmap for research
Develop search terms
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_pl
agiar.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 & citations


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.

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


Rule 16.2: Title of article






Ordinary roman
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
If one exception met, you can cite electronic source
alone.


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
Particularly Helpful Tables




Table
Table
Table
Table
6: Case Names (335)
7: Court names (337)
10: Geographical Locations (342)
13: Periodicals (349)
Internal Cross References (63)




Rule 3.5
“supra” and “infra”
See supra notes 44-47 and
accompanying text.
See infra pp. 55-61.