App
Ad Class Notes
Why
is research like dating and writing like marriage? When you’re doing research, you think you’re
going to find the exact right thing, but when you’re 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 you’re writing, you’ll be
learning more about the case.
Research
When
you’re writing to a court, what’s the difference in what you cite? It depends on who you’re writing to! If you’re 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. That’s 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 don’t quote something just when they’re 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 don’t like citations to extra-legal sources, but
then they’ll 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. What’s the underlying law we’re
examining? Did they get it wrong? That’s de novo. What does that mean? The Supreme Court will look at the Ninth
Circuit’s decision totally new. The big
vocabulary word for standards of review is deference. How much will the Supreme Court defer to the
lower court’s thinking? Why can’t the
respondent just use the successful lower court opinion? Well, the lower court opinion’s head is sort
of on the chopping block! So you can’t
really rely on the lower court decision.
Use its arguments, but it’s not impressive to cite the authority for its
arguments. By the way, a majority of us
think that Ashcroft will win.
Let
us brainstorm! What’s 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
couldn’t 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, it’s an as-applied argument.
What
about for the respondent? Everything is
intrastate. They claim there is no drug
trafficking going on. What’s the definition
of trafficking? There’s no buying or
selling or other exchange of value. It’s
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 didn’t
get pot. A doctor lists all the drugs
that she has tried that made her sick: alternatives haven’t worked. There are safeguards in
How
about categories for the respondents? Drug policy. Federalism. Constitutional Law – 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? What’s 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 isn’t intro is a unit of
discourse, I think. When you e-mail, use
a subject line using “Homework – Section X”.