App Add Notes 9/2/04


Macro draft


Due Wednesday morning at 8:30 AM.  I have an extension until half an hour after Braunstein’s class ends.  But he’s not having class that day.  But nobody’s going to speak up.  Do a private memo.  Drop a footnote to your adjunct when you’re unsure.  Also include them when you think you did something good.  That will help the adjunct help you.  This draft doesn’t get a heavy critique.  This is mostly content-based.  Don’t worry about the self-graded draft until next week.  What about length?  In real life, there are page limits.  There are no page limits.


Next week, we’ll talk about self-graded drafts.  Bring highlighters.  You can’t show other students writing.  We can talk about the case.  It’s okay to discuss a particular authority.  But don’t, in effect, study together.  We can look at newspaper articles.  No attorney work product written for this case.  No briefs at any stage.  What about briefs in other cases?  Ask your adjunct.


Don’t say “The Southern District of Iowa says…”  Say “The Supreme Court has said…and the Southern District of Iowa has applied it like this…”


About the criteria sheet: nobody’s perfect.  Don’t think that you just have to do the things they mark.  They won’t mark that much on this draft.  But they won’t say “don’t touch it” hardly ever.


Four stages of the writing process: (1) maniac, (2) architect, (3) carpenter, and (4) judge.  You are crazy.  Then you draw up a plan.  Then you might want to amend it.  Then you have to build and fill in the plan.  Finally, you need to look at what you’ve done from the outside.  Look at which parts are just introductory and which parts you have to prove.  Use CRExAC.  Don’t forget explanation.  You must fill in the connection between the rule and its application.  Don’t worry about being boring.  You’ll be talking about different rules, different explanations, and different applications.


What’s the source of law for the rule?  Is it a statute?  Is it common law?  How will I explain the rule?  What authorities will I use?  How has the rule been applied in the past?  Finally, in the application, you’ll use different levels of detail on the facts.  You’ll make analogies and distinctions.  “Like the defendant in that case…the defendant here…” or “Unlike the defendant in that case…the defendant here…”


Ask yourself two things, focusing on the phrase-that-pays.  How abstract or concrete is the language?  How controversial or uncontroversial is the phrase in this case?  The more abstract and controversial, the more time you need to send explaining.  If it’s very concrete and not controversial, you don’t need to spend much time on it, if any.


Outline of structure




Rule – Source of law


Explanation – Other cases that use the rule


Application – Facts of the case, then analogies and distinctions… “Like in case Y…unlike in case Z…”




When is it okay to look at legislative history?  Show all the pieces and how they fit together.  Connect the concepts for the reader.  It helps to show the phrase that pays when you show when it does and doesn’t mean.


Draw the parts together in the conclusion.  Have one authority each way.  Be very explicit in the application.  Do we have a statutory interpretation issue?  I dunno.  If you do, then remember that the facts may be the language of the statute you’re interpreting.


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