The following is a copy of the notes I distributed in connection with the MidTerm.  in case someone missed those notes or misplaced them, they are here.

 

Notes on POL 461 Midterm Examination

Fall 2006

 There were two basic categories of challenges that students encountered on this examination.  What follows are a variety of “problems” or items that students should. In general work on and correct.

 

First, a segment of the grade on the Midterm depended on mechanical features – 25% – of the Opinion.  You need to realize that there were a number of these kinds of errors that must be overcome immediately!  These have to do, in general, with (1) typographical errors, (2) spelling errors, (3) word choice and word usage, (4) sentence structure, and (5) paragraph structure.

 

• Problems with brackets [ ].  Use them correctly.
• Punctuation problems.  Quotation marks go OUTSIDE all other punctuation, even though modern usage allows a different arrangement.  Footnote numbers are placed in text immediately after the last punctuation mark.
• Footnotes always end with a period (.)
• Citations to cases were generally incorrect.  When citing a Supreme Court opinion you need only use the United States Supreme Court Reports citation.  That is, for example, xxx U.S. yyy (year).  Citing a quotation from a court opinion requires citing the specific page form which the quotation is taken.  Citing the first page of a citation, is like citing page 1 for a quotation in a book that appears on page 205!  There is a correct way to do that and it is presented in the Blue Book or the Maroon Book.
• Headings and Subheadings that appear alone at the very bottom of the page are “widows.”  There is a way to prevent that and you should!  CNTL Enter will start a new page (with a page break) just above the heading if you place the cursor before the heading.
• Contractions continue to be a problem for some of you.
• Proofread you work.  Misspellings must be corrected.  Spell checkers do not identify WORDS that are wrong words but are correctly spelled.  For example, the word “statue” is correctly spelled, but if that word was encountered in the opinion, I stopped reading the opinion and formulated a grade for the Midterm on the basis of what I had read up to that point!  Another example is a “singing” statement.  Good grief!  That is correctly spelled but obviously it is the wrong word.
• In a variety of instances the wording or the phrasing of a statement made no sense at all.  At the time it was written, the writer thought it did make sense, but it does not.  That is why writing, and then leaving that work alone for some time – days – before your re-write the work is so vital.  Many problems arose from writers thinking they had to use big words and convoluted phrases.  That is not necessary or desirable.  Clear, concise, direct wording is a very good thing.  That means you have to know what you want to say and then say it directly and carefully and clearly.  So cumbersome wording or awkward phrases should be eliminated, by re-writing (and re-writing again) until the statement conveys exactly what you want to say in the sentence or the paragraph.
• Never write a single sentence paragraph.  If you have a point that requires a paragraph, then that point needs to have enough more than one sentence..

 

 

Second, the larger segment relates to substantive matters, although to a degree some of those relate to organization and the clarity of the points made.

 

• This midterm was to be an opinion, not an essay!  That means there is little (or no) need, except for use in one argument, for any history of Signing Statements.  Do not devote the bulk of your opinion to describing matters such as process, unless that is crucial to your analysis.  .
• Using secondary sources is not appropriate in opinions.  While you are generally used to relying on such materials, they are not very useful when developing an opinion.  If you will note, nearly all the references used to support an opinion of the Attorney General are original sources, and I was NOT impressed or persuaded by citations to Dellinger’s 1993 outline, which was not an opinion.  You should rely on original or primary sources for support.  You may use secondary materials for background and your own understanding of the issue, but support for your opinion should derive from Primary sources – the Constitution, statutes, common law.  You will encounter some citation to secondary materials in Supreme Court opinions but those are not numerous, and they are largely due to items that the law clerks place in the opinion. 
• The task for you to complete was to fashion an opinion.  That involves logical and analytic support for you conclusions.  That means you needed to answer the questions posed in the request.  Then in each case explain and justify the response you chose.  This does not, as mentioned above, require much description or history.
• Stringing quotations together is NOT analysis and it is not the core of an opinion.  Do not use a series of quotations that sound great, or that say what you would like to say.  These usually do not yield any logical argument.  A good example of this would have been to use a phrase or sentence from a dissenting or a concurring opinion.  These are NOT the law of a case.  There may be times when the point you want to make derives from such a secondary opinion.  Make the point and develop it on your own, using your own words.  Then, cite the concurring opinion to support what you have argued.
• Structuring an argument is something you should be able to do by now.  However, in case you have not paid attention to structure when you have read the cases for class there is a sequence you might want to follow:

1.      Determine the answer or the outcome you want to reach.  Court opinions are always RESULT ORIENTED.  What is the result?  In this instance, what is the answer you wish to convey about the question?  That means you should answer the question at the outset.  In many (most) instances, there is no correct answer, so what you choose as your answer is not a major problem.  The task of justifying or explaining WHY you have presented the answer you have is the important part of the assignment.

2.      In general, what support do you have for that answer?  (This means what precedent, what constitutional wording, or what statutory provisions are useable to support your conclusion?)  That DOES NOT mean “What quotations can I find that say what I want to say?”  Such quotations are not arguments for the conclusion.  Make a list of the points you have that relate to your answer (conclusions).  Determine of those confirm or support you conclusions.  If they do not support your conclusion, then you need to argue against.  (Always anticipate and be able to respond to counter arguments.)  Then order the points so that the result of the argument is (ends up as) the conclusion you wish to justify. 

3.      Prepare an OUTLINE of the points and the conclusion for each argument you need to make.  This outline must order the points in a logical sequence.  This should be a serious, formal outline of the points, not a description of what you will write first, what you will write second, and what you will write last.  The points may be deductively ordered or not, but they need to have a coherent and visible order, in your outline.  This outline is probably the most crucial part of the thinking process.  You need to understand the issue (the question) you are dealing with, and you need to understand the logic that you wish to use to argue.  The logic and the sequence are really important and you need to think a great deal about that before you finish this step in the process.  (Most people think of other items, points, arguments, or the like later that they wish to include in their argument.  That is fine, but make sure to locate those points at the correct spots in your argument.  It might be that this idea will require a completely independent argument.  In other instances, the late idea will be a minor piece that fits into the existing argument.  As long as you have a written outline, you will be able to tell where the late ideas “fit” and you should have little difficulty putting them into the argument.)

4.      Write out each point.  Each of these points should be a clear and concise sentence, at first.  Then, each point in an argument is likely to develop into a paragraph.  At this stage, you should add the support – footnotes, holdings from prior cases, statutory or provisions of the Constitution – that confirms or moves toward the point you are making.

5.      Each of these paragraphs should then be connected, in a logical systematic fashion.  This is the actually construction of your argument, on the page.  Be sure the last paragraph of your argument reaches and articulates the conclusion or the result you want to reach.

6.      Check your outline to make certain that (a) you have presented all the points that are in the outline, (2) you have presented those in the correct, logical order, and (3) you have stated each point in the argument clearly with whatever transitions you need to make the argument smooth(!).

7.      Let your work age, for at least a day while you do other things, unrelated to the assignment.

8.      Go back and re-read your argument(s).  Then re-write your argument(s).  You never should submit a first draft of anything, but particularly an opinion that requires this much work and detail.

9.      Add whatever introductory and concluding material that is necessary to complete the task.  If you have more than one argument or more than one conclusion to reach or question to answer, then there is a great likelihood that you should divide the assignment into sections (even subsections) if you need to convey the structure of your arguments.  That separates the arguments and the answers to each of the parts of the problem that you have developed.

10.  ALWAYS proofread your materials for (1) spelling errors and do NOT count on your spell checker to catch them, (2) wording problems that confuse or cloud the point you are making, and (3) any other DETAILS that you have to be sure about.

 

At this point, if you have gotten this far, you might expect to read a statement that people who read the entire document are not required to do anything.  However, that is not the case here.  You should read this carefully and understand it.  You need to read opinions carefully and “see” how arguments are constructed and then think about how you construct your own arguments.

 9 Nov. 2006

 PARAGRAPHS

This comment regards the paragraphs that students are supposed to submitted in connection with the cases in Chapter 6 of O'Brien.  These comments do not apply to every one but they do apply to a very large proportion of the class.  There are three significant features of the paragraphs that have been submitted so far, that need to be corrected immediately.

1.  People seem to have forgotten how to write clear, concise, explicit holdings. 

2. While some students have not yet learned how to write holdings, a good many more may have that skill.  However, for them the term "paragraph" seems to convey a license to just throw random, scattered pieces into the paragraph.  Do not do that.  There seems to be a remarkable mount of "fluff" in many "paragraphs."  The paragraph should contain a coherent, logical set of arguments (the reasoning) that the Court provides to support the holding, contained in the first sentence of the paragraph.  These students have a holding, but fail to provide any logical, coherent statement about the Court's reasoning.  The paragraph should convey WHY the court reached the holding it did.  I suggest outlining the paragraph before your write it.  Each sentence should be a logical step in the Court's reasoning and you should be able to "see" that logic.

3.  Some of you have written descriptive historical statements about each case.  For example, I am told what Chief Justice Fuller said or did in the opinion.  Do not do that.

 

A paragraph, means one paragraph!

9 Nov. 2006

CLASS PROJECT

The Class Project was posted, actually Monday, 6 Nov. although it is dated today, 9 Nov.  This is a major assignment that will require several steps to complete

First, students should get a copy of the Senate Version of the Military Commission bill that was passed.  The version signed by the President on 17 October is NOT available, so use S. 3930 as is it were the statute.

Second, S 3930 should be read, repeatedly, until the student is very familiar with all its provisions.  Students should be very familiar with all the provisions of the law, and should then "think about" what kinds of constitutional questions this statute generates.  Keep track of those questions (your thinking) because you will need to cast those into your legal argument.

Third, students will need to decide whether they are going to challenge the constitutionality of one of more provision of the statute, or defend the constitutionality.  If you choose the latter, then you will have to defend the entire statute against all possible challenges.  (If you choose to defend the statute, they you are the United States Solicitor General!  If you challenge the statute, then you are the Legal Counsel for the American Civil Liberties Union.).

Fourth, the research phase of this requires students to identify the prior cases and other, relevant statutes that relate to this statute.  In other words, what is the law of the subjects contained in this statute?

The fifth step requires organizing, outlining, and structuring the arguments you will use in your brief.  This will take a good deal of time, after you have identified the relevant law on the subjects.  You have been thrown into this with little background, so you will have to learn a great deal very quickly about the law of Military Commissions.

Sixth, students will need to write the brief.  At this point, students should have the Supreme Court Rules well in hand, so that they know how to prepare the brief.

Seventh, the brief will need to be formatted correctly, printed and bound correctly.  This will require close attention to the detailed Court rules.

Each of these tasks can be quite time consuming, and as with most assignments, it will take you longer than you originally expected.  So allow a great deal more time for each step than normal.  This project cannot be successfully completed the night before it is due.  It cannot be successfully completed in a week or over Thanksgiving Vacation. It will require some careful and sustained work most every day from this point until it is submitted on 8 December 2006.  You need to get all the questions clarified early, and you need to get any rulings from the Clerk of the Court well before 7 December 2006.

 

9 Nov. 2006