Constitutional Law: Keyed to Courses Using Chemerinsky's Constitutional Law

472 Pages·2009·6.484 MB·English

by  Casenotes

Casenote
(cid:1) Legal Briefs
CONSTITUTIONAL
LAW
Keyed to Courses Using
Chemerinsky’s
Constitutional Law
Third Edition
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Format for the Casenote Legal Brief
v
Note to Students
Aspen Publishers is proud to offer Casenote Legal CasenoteLegalBriefsrepresentsbutoneofthemany
Briefs—continuing thirty years of publishing America’s offeringsinAspen’sStudyAidTimeline,whichincludes:
best-selling legal briefs.
Casenote Legal Briefs are designed to help you save (cid:1) Casenote Legal Briefs
time when briefing assigned cases. Organized under (cid:1) Emanuel Law Outlines
convenient headings, they show you how to abstract the (cid:1) Examples & Explanations Series
basic facts and holdings from the text of the actual (cid:1) Introduction to Law Series
opinions handed down by the courts. Used as part of a (cid:1) Emanuel Law in a Flash Flashcards
rigorous study regimen, they can help you spend more (cid:1) Emanuel CrunchTime Series
time analyzing and critiquing points of law than on
copying bits and pieces of judicial opinions into your Each of these series is designed to provide you with
notebook or outline. easy-to-understand explanations of complex points of
Casenote Legal Briefs should never be used as a law. Each volume offers guidance on the principles of
substitute for assigned casebook readings. They work legal analysis and, consulted regularly, will hone your
best when read as a follow-up to reviewing the ability to spot relevant issues. We have titles that will
underlying opinions themselves. Students who try to help you prepare for class, prepare for your exams, and
avoidreadinganddigestingthejudicialopinionsintheir enhance your general comprehension of the law along
casebooks or online sources will end up shortchanging the way.
themselves in the long run. The ability to absorb, TofindoutmoreaboutAspenStudyAidpublications,
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vi
vii

How to Brief a Case
A. Decide on a Format and The facts entry should be a short statement of the
Stick to It eventsandtransactionsthatledonepartytoinitiatelegal
proceedingsagainstanotherinthefirstplace.Whilesome
Structureisessentialtoagoodbrief.Itenablesyouto casesconvenientlystatethesalient factsatthebeginning
arrangesystematicallytherelatedpartsthatarescattered of the decision, in other instances they will have to be
throughout most cases, thus making manageable and culledfromhidingplacesthroughoutthetext,evenfrom
understandable what might otherwise seem to be an concurring and dissenting opinions. Some of the ‘‘facts’’
endlessandunfathomableseaofinformation.Thereare, will often be in dispute and should be so noted.
of course, an unlimited number of formats that can be Conflicting evidence may be briefly pointed up. ‘‘Hard’’
utilized. However, it is best to find one that suits your factsmustbeincluded.Bothmustberelevantinorderto
needs and stick to it. Consistency breeds both efficiency belistedinthefactsentry.Itisimpossibletotellwhatis
and the security that when called upon you will know relevant until the entire case is read, as the ultimate
where to look in your brief for the information you are determination of the rights and liabilities of the parties
asked to give. may turn on something buried deep in the opinion.
Any format, as long as it presents the essential Generally, the facts entry should not be longer than
elements of a case in an organized fashion, can be used. three to five short sentences.
Experience, however, has led Casenotes to develop and Itisoftenhelpfultoidentifytheroleplayedbyaparty
utilizethefollowingformatbecauseofitslogicalflowand inagivencontext.Forexample,inaconstructioncontract
universal applicability. case the identification of a party as the ‘‘contractor’’ or
‘‘builder’’alleviatestheneedtotellthatthatpartywasthe
NATUREOFCASE: Thisisabriefstatementofthelegal onewhowassupposedtohavebuiltthehouse.
characterandproceduralstatusofthecase(e.g.,‘‘Appeal It is always helpful, and a good general practice, to
of a burglary conviction’’). identify the ‘‘plaintiff’’ and the ‘‘defendant.’’ This may
There are many different alternatives open to a seem elementary and uncomplicated, but, especially in
litigant dissatisfied with a court ruling. The key to view of the creative editing practiced by some casebook
determining whichonehas beenused istodiscover who editors,itissometimesadifficultorevenimpossibletask.
is asking this court for what. Bear in mind that the party presently seeking something
Thisfirstentryinthebriefshouldbekeptasshortas from this court may not be the plaintiff, and that
possible.Usethecourt’sterminologyifyouunderstandit. sometimes only thecross-claim of a defendant is treated
But since jurisdictions vary as to the titles of pleadings, in the excerpt. Confusing or misaligning the parties can
thebestentryistheonethataddresseswhowantswhatin ruin your analysis and understanding of the case.
this proceeding, not the one that sounds most like the
court’s language. ISSUE: A statement of the general legal question
answered by or illustrated in the case. For clarity, the
RULE OF LAW: A statement of the general principle of issue is best put in the form of a question capable of a
law that the case illustrates (e.g., ‘‘An acceptance that ‘‘yes’’ or ‘‘no’’ answer. In reality, the issue is simply the
variesanytermoftheofferisconsideredarejectionand RuleofLawputintheformofaquestion(e.g.,‘‘Mayan
counteroffer’’). offer be accepted by performance?’’).
Determining the rule of law of a case is a procedure The major problem presented in discerning what is
similar to determining the issue of the case. Avoid being theissueinthecaseisthatanopinionusuallypurportsto
fooled by red herrings; there may be a few rules of law raise and answer several questions. However, except for
mentionedinthecaseexcerpt,butusuallyonlyoneisthe rarecases,onlyonesuchquestionisreallytheissueinthe
rule with which the casebook editor is concerned. The case. Collateral issues not necessary to the resolution of
techniquesusedtolocatetheissue,describedbelow,may the matter in controversy are handled by the court by
alsobeutilizedtofindtheruleoflaw.Generally,yourbest language known as ‘‘obiter dictum’’ or merely ‘‘dictum.’’
guideissimplythechapterheading.Itisacluetothepoint Whiledicta maybe included laterinthebrief, they have
the casebook editor seeks to make and should be kept in no place under the issue heading.
mindwhenreading every case inthe respectivesection. Tofindtheissue,askwhowantswhatandthengoon
toaskwhydidthatpartysucceedorfailingettingit.Once
FACTS: Asynopsisofonlytheessentialfactsofthecase, this is determined, the ‘‘why’’ should be turned into a
i.e., those bearing upon or leading up to the issue. question.
ix
x CASENOTELEGALBRIEFS
ConstitutionalLaw
The complexity of the issues in the cases will vary, thebriefcanbeeasilyidentifiedandbroughttogetherina
butinallcasesasingle-sentencequestionshouldsumup concise and accurate manner when the brief is actually
the issue. In a few cases, there will be two, or even more written.
rarely,threeissuesofequalimportancetotheresolution It is of no use to simply repeat everything in the
ofthecase.Eachshouldbeexpressedinasingle-sentence opinionofthecourt;recordonlyenoughinformationto
question. trigger your recollection of what the court said.
Sincemany issuesareresolvedbya courtincoming Nevertheless, an accurate statement of the ‘‘law of the
to a final disposition of a case, the casebook editor will case,’’ i.e., the legal principle applied to the facts, is
reproducetheportionoftheopinioncontainingtheissue absolutely essential to class preparation and to learning
orissuesmostrelevanttotheareaoflawunderscrutiny. the law under the case method.
A noted law professor gave this advice: ‘‘Closethe book; Tothatend,itisimportanttodevelopa‘‘shorthand’’
look at the title on the cover.’’ Chances are, if it is that you can use to make margin notations. These
Property, you need not concern yourself with whether, notationswilltellyouataglanceinwhichsectionofthe
for example, the federal government’s treatment of the brief you will be placing that particular passage or
plaintiff’slandreallyraisesafederalquestionsufficientto portion of the opinion.
support jurisdiction on this ground in federal court. Some students prefer to underline all the salient
The same rule applies to chapter headings designat- portions of the opinion (with a pencil or colored
ing sub-areas within the subjects. They tip you off as to underliner marker), making marginal notations as they
whatthetextisdesignedtoteach.Thecasesarearranged go along. Others prefer the color-coded method of
in a casebook to show a progression or development of underlining, utilizing different colors of markers to
the law, so that the preceding cases may also help. underline the salient portions of the case, each separate
It is also most important to remember to read the color being used to represent a different section of the
notesandquestionsattheendofacasetodeterminewhat brief. For example, blue underlining could be used for
the editors wanted you to have gleaned from it. passages relating to the rule of law, yellow for those
relating to the issue, and green for those relating to the
HOLDING AND DECISION: This section should suc- holding and decision, etc. While it has its advocates,
cinctlyexplaintherationaleofthecourtinarrivingatits the color-coded method can be confusing and time-
decision. In capsulizing the ‘‘reasoning’’ of the court, it consuming (all that time spent on changing colored
should always include an application of the general rule markers). Furthermore, it can interfere with the conti-
or rules of law to the specific facts of the case. Hidden nuityandconcentrationmanystudentsdeemessentialto
justifications come to light in this entry; the reasons for the reading of a case for maximum comprehension. In
the state of the law, the public policies, the biases and theend,however,itisamatterofpersonalpreferenceand
prejudices, those considerations that influence the style. Just remember, whatever method you use, under-
justices’ thinking and, ultimately, the outcome of the lining must be used sparingly or its value is lost.
case. At the end, there should be a short indication of Ifyoutakethemarginalnotationroute,anefficientand
thedispositionorproceduralresolutionofthecase(e.g., easymethodistogoalongunderliningthekeyportionsof
‘‘DecisionofthetrialcourtforMr.Smith(P)reversed’’). the case and placing in the margin alongside them the
The foregoing format is designed to help you following‘‘markers’’toindicatewhereaparticularpassage
‘‘digest’’ the reams of case material with which you will orline‘‘belongs’’inthebriefyouwillwrite:
be faced in your law school career. Once mastered by
N (NATURE OF CASE)
practice, it will place at your fingertips the information
RL (RULE OF LAW)
the authors of your casebooks have sought to impart to
I (ISSUE)
you in case-by-case illustration and analysis.
HL (HOLDING AND DECISION, relates to
the RULE OF LAW behind the decision)
B. Be as Economical as Possible in HR (HOLDING AND DECISION, gives the
Briefing Cases RATIONALE or reasoning behind the
decision)
Oncearmedwithaformatthatencouragessuccinct- HA (HOLDING AND DECISION, APPLIES
ness, it is as important to be economical with regard to the general principle(s) of law to the facts
thetimespentontheactualreadingofthecaseasitisto of the case to arrive at the decision)
beeconomicalinthewritingofthebriefitself.Thisdoes
not mean ‘‘skimming’’ a case. Rather, it means reading Rememberthataparticularpassagemaywellcontain
the case with an ‘‘eye’’ trained to recognize into which information necessary to more than one part of your
‘‘section’’ofyourbriefaparticularpassageorlinefitsand brief,inwhichcaseyousimplynotethatinthemargin.If
having a system for quickly and precisely marking the you are using the color-coded underlining method
casesothatthepassagesfittinganyoneparticularpartof instead of margin notation, simply make asterisks or