Sunday November 22, 2009

2009-2010 Case Comment Manual

I. PROCEDURE

A. Assignment of Cases

The first article that North Dakota Law Review Members are required to write is a case comment. The Student Articles Editors will provide a list of cases from which Members may select a case of interest to her or him. This list is suggestive only and Members are free to choose cases of interest that are not on the list. No Member may work on a case comment unless the case has been approved by the Student Articles Editor.

Each case will be assigned to only one Member. The system for assigning the cases is first-come-first-served. A Member must first notify a Student Articles Editor of the Member's choice of case. The Student Articles Editor will inform the Member whether the case has been chosen. To formally reserve the case, the Member must submit a Case Comment Approval Form. Failure to do so will open the case to other members.

B. Finding and Identifying Good Cases

The primary responsibility of finding and identifying good cases rests upon the Members. Cases are often suggested by Student Articles Editor and members of the University of North Dakota School of Law faculty. Recent cases suitable for case comment are found primarily by reading advance sheets, Law Week, slip opinions, newspapers, legal websites (such as scotusblog.com), and loose leaf services. Timeliness of the decision is essential because of the delay inherent in the writing, editing, and publication process.

While selecting cases, it is essential to determine whether the case exemplifies a problem, fact situation, or area of law which may be of sufficient legal importance to warrant case comment treatment. In particular, these factors are used to decide if the case is appropriate: (1) conflict among jurisdictions; (2) questions of first impression; (3) new area of the law; (4) important practical considerations; (5) strong dissent; and (6) important developments in an area of law. For example, a case in which the court discusses at length the precedents on point and departs or overrules earlier decisions suggests a significant change of a point of law. On the other hand, a case in which the court merely cites the controlling case law in conclusory fashion in relation to uncontroverted facts probably adds nothing to the applicable body of law worthy of a case comment.

Whether a recent case will be of interest depends in part upon which court decided it. Since a substantial portion of North Dakota Law Review subscribers practice within the State of North Dakota, an interesting case dealing with some point of North Dakota law may be particularly appropriate for comment. Further, cases decided by the North Dakota Supreme Court, the Federal District Court for North Dakota, the Eighth Circuit Court of Appeals, or the United States Supreme Court are especially appropriate if they meet the previously stated criteria. Finally, any case decided by any court in any jurisdiction may be appropriate for case comment treatment if the case is especially noteworthy or novel in its decision. Members should not discuss their choice of case with anyone on the Board of Editors, other than the Student Articles Editor. Anonymity is extremely important in the decision making process, which follows the submission of Members’ articles.

C. Outline Requirement

When a Member is assigned an approved case, an outline of the case comment must be submitted. The deadline for that submission will be decided by the Board of Editors. The purpose of the outline requirement is to ensure that the member's first submitted version to a Student Articles Editor conforms with proper recent case treatment as nearly as possible. Members should read previously published case comments in the North Dakota Law Review to gain an understanding of what a publishable work should be. This will hopefully reduce the necessity for substantial reworking and revisions. As the North Dakota Law Review has recently undergone restructuring, it is important to remember that previously published case comments are substantially longer than what is now expected.

**It is in the best interest of the Board of Editors and the Members to cooperate to the fullest extent throughout the entire writing and editing process. The outline should follow the format described in the Outline of Case Comment Format and Content. Infra section V.

II. RESEARCH

A. The Case Itself

Initial research should begin with a careful reading of the case itself. The opinion should be outlined to fully understand the court's analysis and the corresponding sources relied upon should be noted. All primary and secondary authorities cited in the case's opinion must be read to gain an understanding of the court's perspective. The case and the authorities cited must be exhaustively checked using a citator service – such as KeyCite or Shepardize – to determine subsequent history and later cases on point. If the case is a lower court opinion, it must be determined whether an appeal is pending. Digest key numbers from the case and the cases it cites must be noted and pursued through the digests. All cases cited in the case comment must be thoroughly cite checked and cited in strict conformity with Blue Book (18th Ed.) requirements.

Careful notes should be kept of cases and other materials read during research. It will save much time if the exact full cite is recorded immediately. Notes should be preserved on cards or in a notebook where they may be easily referred to while writing. When a case or other authority is actually cited in text or footnote, however, it should not be cited on the strength of the brief notes taken during research. The authority must be read carefully again to determine that the proposition for which it is cited is correct. The exact page or pages containing the cited statement or idea must be included in the citations (pinpoint cite).
Research for the case comment must be done as thoroughly as possible before it is written. Failure to uncover major cases on point, applicable statutes that may affect the issues, or periodical articles on the point of law covered by the recent case is inexcusable, and may result in rejection of the case comment by the Board of Editors.

Exhaustive research is essential. The authorities cited in the case comment should be a summarization of all pertinent authorities on point. Keep in mind that the case comment is intended to be an effective research tool for the North Dakota Law Review subscribers.

B. Briefs of Counsel

Immediately upon being assigned a recent case, the Member may attempt to obtain and study the briefs of counsel who argued the case. Briefs filed with the North Dakota and United States Supreme Courts are usually available in the law library. Briefs are sometimes not available until after the first draft of the case comment is completed, but it is vital that the briefs be examined regardless of when they are received, because they may bring to light neglected arguments and key facts. A Student Articles Editor will aid in getting briefs which are not available in the law library. The North Dakota Supreme Court website is an excellent source of information if you are assigned a North Dakota state case. It provides briefs of counsel as well as recordings of oral arguments. Trial transcripts might also be helpful. Transcripts are usually available with the clerk of district court in the district the case was tried.

III. WRITING THE CASE COMMENT

A. Length
The average length of a case comment is between 20 to 30 pages, double spaced. Margins must be two inches on the left side, and 1-1/2 inches on the right and on the top and on the bottom of each page. Text should be in 12-point font Times New Roman and footnotes in 10-point font Times New Roman. Footnotes must also be double spaced. All drafts must be printed laser quality on 8-1/2 X 11 inch paper. The text and its corresponding footnotes must be typed on the same page (do not use endnotes).

B. Writing Style

It is the Member's task to convey information understandably. Careful drafting coupled with necessary editing is essential to produce case comments which read smoothly, are concise, and provide thoughtful, authoritative analysis. The Member must particularly strive for coherent paragraph organization and sentence structure in order to develop ideas in logical progression. Roadmaps at the beginning of each section and transition statements between paragraphs are essential for good flow of thought. Write as if it will be suitable for printing when completed without embarrassment to the North Dakota Law Review or the Member. Strive to avoid awkward and verbose sentences. Remember that the premise behind the entire writing and editing process is to arrive at a credible, sound piece of legal writing through the coordinated effort of the Member and the Students Articles Editor. A standard resource for writing style is theGregg Reference Manual and The Redbook – A Manual on Legal Style.

C. Format and Content

The case comment is the shortest student work regularly published in the North Dakota Law Review. Its length is flexible, depending upon the requirements of the particular case. At the outset, a Member should consider: "Why is this decision significant? What about this is of interest to the legal profession?" If the comment addresses itself to these two questions, a substantial step will have been taken toward finding the proper frame of reference in which to work.

Case comments are addressed to practicing attorneys, but do not assume that they remember enough general law on point to understand the issue presented by the case. Include material that will give a compact but complete understanding of the law on point. Beginning legal writers often assume that their readers understand the issue presented as completely as they do. Remember, the reader has not recently done in-depth research on the subject. Present the material in a simple, basic, and clear manner. Avoid broad statements of rules of law without lead-ins and transitions from one point of law to another. Help the reader glide effortlessly through each paragraph and from one paragraph to another.

Please refer to Outline of Case Comment Format and Content (infra Part V) for more information and direction on format and content.

D. The Function of Footnotes in Case Comments

No maximum or minimum number of footnotes is prescribed in the writing of a case comment. Original thought and personal insight does not require a footnote. If the statement derives from case law or a secondary source, it must be cited in a footnote. Nearly every sentence in the text of the case comment is footnoted. For 10 to 20 pages of text, a thorough treatment of the case will usually require 50 to 85 footnotes.

Three basic purposes necessitate the use of footnotes: to support, expand, and clarify. The Member must ensure that footnotes are of legitimate use to the reader and not an attempt to make up for inadequacies in the text. The idea to be conveyed by a statement in the text should be clear in and of itself. The reader should not be forced to refer to the footnote in order to understand the thought in the text. Substantive footnotes, that is, footnotes with information necessary to the understanding of your article, should be used on a limited basis. Information necessary to the understanding of your article should be placed in the body the article.
Embedded footnotes should be used in the first reference to a case name in the body of your article. Embedded footnotes can also be used in other capacities as long as the flow of your sentence is not interrupted (e.g. when you have a list of three propositions, each with a separate statutory provision).

One function of footnotes is to provide support for statements in the text. Providing authority to support assertions is essential to accurate and persuasive legal writing. Authorities cited for individual propositions should provide a method for the reader to "get into the law" on the particular point. Cite form is, of course, governed entirely by the Bluebook (18th Ed.). One question asked by beginning legal writers is, "how much support is necessary and desirable?" This question is answered in relation to the nature of the case, the specific area of law, and the type of assertion being made. Essentially, the author should select cases which are the most supportive of the assertion made and which provide a method of research ingress (i.e., headnotes and/or A.L.R. citations, digest key numbers, etc.). Secondary authorities may be cited as added support, but the preference is for primary authority. Primary authority is mandatory for support of statements of substantive law. Primary authorities are cases and statutes. Secondary authorities include such sources as law review articles, treatises, A.L.R.'s, etc.

The second function of a footnote is to expand upon the idea stated in the text by giving additional information which, though of interest to some readers, is not generic to the central argument. In expanding an idea, the author can provide historical background, a break down of the court's opinion, treatises, comments on point, the text of the relevant statute, a dissenting position relevant to the idea in the text, or an interesting yet tangential issue. If the author included these types of information in the text, it could direct attention away from the writer's main purposes or bog the reader down in a myriad of facts.

A third function of footnotes is to clarify. Including a specific example of a hypothetical in a footnote can make a point more understandable for those unfamiliar with a specific area while not being burdensome to the expert. Great caution must be taken, however, to ensure that the footnote is not repetitious or an excuse for lack of clarity in the text.

IV. EDITORIAL AND DRAFTING PROCESS

The student writing a case comment should remember that the entire project is a cooperative effort between the Member and the Students Articles Editor. The editorial process begins when the Student Articles Editor and Member agree on an appropriate case, and the focus the case comment should take. A Student Articles Editor will edit and approve the Member's outline of the proposed treatment of the case. This step will ensure that the Member "starts off on the right foot." The initial conference and outline approval procedures are intended to prevent substantial revisions. While the Student Articles Editor will not make substantive edits to a Member’s draft, the Student Articles Editor will be available to answer substantive questions throughout the entire writing process.
Members are encouraged to consult with the Student Articles Editor. Careful attention and constant reference should be made to the guidelines in this manual, the Bluebook (18th Ed.), and the Gregg Reference Manual.

V. SUMMARY OUTLINE OF CASE COMMENT FORMAT AND CONTENT

The title of the case comment should be derived as follows: The first two sections of the title should be the appropriate subject headings found in the American Digest System; the third section of the title should be the student's own Composition stating the problem presented by the case concisely; the fourth section consists of the title of the case.

I. FACTS

The first few paragraphs contain the facts essential to understanding the holding, the issue, and the rationale. The word held must be italicized. Additional facts may be included in the footnotes.

II. LEGAL BACKGROUND

This portion of the case comment, usually the most lengthy, will review the central point of law dealt with in the case, including the majority rule (if one exists) and any variation thereof, minority rules, historical background, rationales, and developments of notable theories regarding the decision. The purpose of this portion of the case comment is to give the reader a frame of reference from which to better understand the analysis of the court's opinion and the implications of the decision.

To develop the legal background of the case, give the case law development of the rule of law. If possible, illustrate the social context and impact of the relevant law. This discussion should be chronological, logical lead-in to the analysis of the case.

III. COURT’S ANALYSIS

This portion of the case comment is the analysis of the case. The issue decided by the court must be clear from the analysis. The court's rationale for its holding must be carefully developed. It is the Member's job at this point to clarify what the case does, not to justify or criticize what the court did. Show whether the decision expanded upon precedent or distinguished prior cases, and the reasons for doing so. Also, show whether the case is a departure from, or gives a new treatment to the specific point of law. The analysis of the opinion must not be simply a rehash of what the court said, or an expanded case brief. The analysis should be a careful organization of the court's points of decision, and a step-by-step discussion of the court's rationale. Essentially, this discussion gives what the court said and its reasons for saying it.

IV. IMPACT OF DECISION AND APPLICATION TO NORTH DAKOTA LAW

Following the analysis of the court's opinion, should be a discussion of the implications of the decision. Questions or problems left open and/or unanswered by the court's holding must be addressed. This discussion is essential to a complete case comment. The reader does not have the benefit of the knowledge acquired by the Member during the course of research. Based upon that research, the Member will be in a position to point out to the reader the potential ramifications of the court's decision. Points of inquiry here are: "where does the decision leave the specific point of law?" or "how might the ruling be applied to other areas?"

If at all relevant, the impact of the decision on North Dakota law, or the state of the specific area of law in North Dakota should be discussed if the case is not a North Dakota decision. This discussion will assist North Dakota subscribers in utilizing the case comment as a research tool. A great way to determine the specific and relevant impact of a decision is to speak with practitioners. Consider speaking with the lawyers you argued the case or handled the trial.

It is in the impact section where the Member can develop their objective understanding of the case to a persuasive argument backed by the Member’s independent analysis. If a statement is an original thought, that did not derive from case law or a secondary source, a footnote is not required. Members are encouraged to express their thoughts and opinions on the court’s decision. The purpose of writing a case comment is not to simply summarize the law and the case, but also to inform the reader of the author’s stance on the issue and decision. If possible, these thoughts and insights should be supported by other decisions that have dealt with the particular issue, other Law Review articles, and other secondary sources.

V. CONCLUSION

The conclusion recaps the significance of the subject matter and reiterates what the reader has been told.