App Ad Class Notes 8/26/04

 

Why is research like dating and writing like marriage?When youíre doing research, you think youíre going to find the exact right thing, but when youíre writing, you just do the best with what you have.There is a tendency to research forever, but you have to wrap up and commit and write.You have to try something out.And when youíre writing, youíll be learning more about the case.

 

Research

 

When youíre writing to a court, whatís the difference in what you cite?It depends on who youíre writing to!If youíre writing to the Sixth Circuit, then a Sixth Circuit quote is good.If not, no.Supreme Court decisions are the best authority to the Supreme Court.The Constitution is mandatory authority of the Supreme Court.Are their own cases mandatory authority?No, but pretty good.Thatís a big difference between the Supreme Court and the Sixth Circuit.You should look at lower courts cases, but think about what will impress the court.What else can you cite?You can cite statutes.What else?You can cite regulations.Anything else?Law review articles.But donít quote something just when theyíre just asserting the truth of something.Berman might be a good source for Blakely stuff!Statements of fact from research that can be backed up are useful.

 

What about extra-legal citations?A lot of times, courts say that they donít like citations to extra-legal sources, but then theyíll cite them in their opinions.So help them by finding things yourself, as long as the authority is strong and used in a well-thought out way.

 

Our court has a separate standard of review section!They talked about de novo and abuse of discretion.Whatís the underlying law weíre examining?Did they get it wrong?Thatís de novo.What does that mean?The Supreme Court will look at the Ninth Circuitís decision totally new.The big vocabulary word for standards of review is deference.How much will the Supreme Court defer to the lower courtís thinking?Why canít the respondent just use the successful lower court opinion?Well, the lower court opinionís head is sort of on the chopping block!So you canít really rely on the lower court decision.Use its arguments, but itís not impressive to cite the authority for its arguments.By the way, a majority of us think that Ashcroft will win.

 

Let us brainstorm!Whatís the most important fact for the petitioners in this case?The case was decided solely on Commerce Clause grounds and not on the other grounds.The federal government has not recognized a medical purpose for marijuana (see the CSA Schedule I).She went to street dealers when she couldnít get specially cultivated plants.The Does did everything intrastate.The Ninth Circuit has already upheld the constitutionality of the CSA.Would the whole CSA be thrown out if Raich wins?No, itís an as-applied argument.

 

What about for the respondent?Everything is intrastate.They claim there is no drug trafficking going on.Whatís the definition of trafficking?Thereís no buying or selling or other exchange of value.Itís a gift plus volunteer work.There is no money changing hands.There is a medical necessity aspect: they claimed she would basically die instantly if she didnít get pot.A doctor lists all the drugs that she has tried that made her sick: alternatives havenít worked.There are safeguards in California to prevent the slippery slope slouching towards drug abuse and stuff.Itís also true that this was a voter initiative.Also, California isnít the only state that legalizes medical marijuana.

 

How about categories for the respondents?Drug policy.Federalism.Constitutional Law Ė Commerce Clause.Health care.Ninth and Tenth Amendments.Do the decisions come out differently depending on how the categories overlap?What about agriculture?What were they thinking about when they were writing the Commerce Clause?

 

What about the petitioners?Patient rights and the right to make your own decisions.What about administrative law and the regulation of drugs by the FDA?Judicial activism.Statutory construction.Drug trafficking.What about terrorism?

 

This is the idea.Flesh out the angles we can pursue.Think of case authorities, regulatory authorities, and extra-legal things.How many people are helped by medical marijuana?What has happened in states that have allowed this?What else can I look up?Whatís the nerdiest state on the list of states that allow marijuana?

 

Next week, we need to e-mail our homework in a day in advance.She wants a unit of discourse: Conclusion, Rule, Example, Application, Conclusion.By that, she means a way to analyze different sections.Between the main heading and the first subheading, there will be an intro.Between the A and the B is a unit of discourse.Anything that isnít intro is a unit of discourse, I think.When you e-mail, use a subject line using ďHomework Ė Section XĒ.

 

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