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An unmarked copy of your paper will be returned to you. (a) For your more formal papers (such as the one due February 7th) you will receive individual feedback/editing. (b) No significance should be attached to the presence, or absence, of a reference to any given student's paper. All were roughly equal and very good.

(c) One of the most important -- and difficult -- things we all have to learn, especially those of us who want to be practicing lawyers, is how to edit our own writing. Editing others' writing is difficult enough. Editing our own, at least at first, seems virtually impossible. "If I knew of a better way to say it I would have written that in the first place," we are tempted to respond defensively to the suggestion a rewrite is in order.

So one of the purposes of the type of feedback represented by this memo, for those of you who take it seriously and do what it says, is to provide you an exercise in editing your own material, in developing the kind of eye, and careful reading, that enables you to read carefully, and revise, over and over again.

If you see the benefit of developing this skill, here's what you do.

Read this memo. Then re-read your paper along side this memo. If you did not participate in a one-on-one conference you can assume you did acceptable work. But you might, nonetheless, at least consider the analysis in this memo for the insights it may provide about alternative approaches you might have used (or may want to use in the future).

To repeat the core of the question: “Go directly to how he [Chief Justice John Marshall] (a) set up, and (b) resolved, the constitutional question [in Marbury v. Madison]. How would you state the logical, analytical, progression of his argument (i.e., his assertions, assumptions, interpretations, conclusions), step by step, with a single sentence for each step? [This was followed by five numbered, blank spaces where you could write the steps.]

Why this exercise? You will recall I made the point that whether you are merely trying to (a) read and understand an appellate court decision or lawyer’s brief, (b) attack or respond to it, (c) come up with an original analysis of your own on a client’s behalf (when you have no opponent or precedent to guide you), or (d) writing a memo to the judge for whom you are clerking in a case yet to be decided, these are skills that you need. The skills are virtually identical whether you are a law student briefing cases, reciting in class, doing exercises and writing assignments in this class, participating in AAI and moot court, preparing for finals, writing an answer to a final essay question or bar examination, or out there practicing law.

I told you the story of my constitutional law professor getting a state supreme court to (a) make findings “as a matter of law” (effectively taking the case from a jury), in (b) two cases that required the court to come to seemingly diametrically opposite results one year apart.

Of course, what Chief Justice Marshall pulled off in Marbury, and subsequently, is even more creative and dramatic.

But you will undoubtedly have many opportunities to do comparable things with, at least, local ordinances and state and federal statutes, not to mention the regulations of the thousands of agencies and commissions, at all levels of government.

Feedback is complicated by the fact that there really is no “right” answer to the a question.

Although my “there are only two grades, a 90 and a 55” was not entirely serious, in point of fact that proved to be the case. That is, all but a very small handful of the class read the question accurately, knew the case, and provided a progression of steps that was perfectly acceptable. Those who did not have now held one-on-one conferences, taken a second cut at the assignment, and done an acceptable job.

Where to begin?

You could start with a statement about “jurisdiction” in general (“before any court can proceed to the merits of a case it must first find that it has jurisdiction to consider it”). Or with the Constitution (“every act of every institution of federal and state government must look for its justification to some provision of the Constitution”). Or with the Judiciary Act of 1789, following an introductory clause (“As authorized by Article III, Congress first provided ‘regulations and exceptions’ to the Court’s jurisdiction in the Judiciary Act of 1789”).

Where you go from there is a function of where you started. But here are some thoughts that would be appropriate to include in the “step by step.”

• “Given the Article III dichotomy between ‘original’ and ‘appellate’ jurisdiction, because this case was first filed in the Supreme Court [requesting a rule for mandamus] if the Court is to have jurisdiction it must be because it is contained within its Article III ‘original’ jurisdiction authorization.”

• “[Although Chief Justice Marshall could have asserted that there is nothing in Article III to limit Congress’ ability to expand the Court’s original jurisdiction he chose to say that] The specific itemization in Article III of those cases for which the Court has original jurisdiction must be interpreted as the expression of an intent by the drafters to exclude from its original jurisdiction any and all cases not itemized.”

• “[Although Chief Justice Marshall could have interpreted the last sentence of Section 13, which begins by talking about appellate jurisdiction, as dealing exclusively with appellate jurisdiction he chose to say that] All following the semicolon in the last sentence of Section 13 grants [“can most reasonably be interpreted” or “was intended by the drafters” to grant] the Supreme Court both appellate and original jurisdiction in cases of mandamus [as it contains no express contrary limitation” or “in cases of original jurisdiction, where mandamus is most appropriate”].

• “The Constitution is not just hortatory idealism; it is ‘law,’ and as such is supreme, and trumps any act of Congress that may conflict with its provisions.”

• “[Although Chief Justice Marshall could have said that this task of making deliberate findings of constitutionality falls equally on all public officials and branches of government, and that therefore the Court will always defer to Congress’ findings of constitutionality, including this grant of original jurisdiction, he chose to say that] It is the special responsibility of the judicial branch to say what the law is and, therefore, when there is a conflict between the law of the Constitution and the law of Congress, to be able to declare an act of Congress unconstitutional.”

• “[Although Chief Justice Marshall could have said, as a more modern Court more likely would say, that in the case of ambiguity acts of Congress will be interpreted by the Court premised on the assumption that Congress would not have intended to pass an unconstitutional act (and, thus, Section 13 must have been intended to relate only to appellate jurisdiction), he chose to say that] Given the conflict between the Article III limitation of original jurisdiction to enumerated cases and the expansion of the Court’s original jurisdiction in Section 13, that provision of the Judiciary Act of 1789 is unconstitutional, null and void.”

What follows are some examples. Based on what’s above you should, by now, be able to evaluate them for yourself. What’s included? What’s excluded? Why does one ordering seem better than another?

I read to you in class my own quick cut at an answer. Here it is:

1. Article III sets forth the Supreme Court’s jurisdiction, subject to such “exceptions and regulations” as Congress shall make.
2. Exercising its Constitutional power, Congress enacted the Federal Judiciary Act of 1789.
3. Section 13 of that Act expands the Supreme Court’s original jurisdiction to include the issuance of writs of mandamus to those who hold federal office (i.e., to the extent relevant, the semi-colon means that the grant is not limited to the Court’s appellate jurisdiction).
4. The itemization of the Court’s original jurisdiction in Article III is a ceiling; the Congress cannot add to the Court’s original jurisdiction.
5. The Court must consider and compare constitutional provisions with those of Congressional enactments, and find the Constitution’s provisions supreme in the event of conflict; in this case, the limitations of Article III trump the Congress’ effort to expand the Court’s jurisdiction in Section 13.

1. Marshall first looks at whether the Supreme Court has jurisdiction in the case by comparing the Judiciary Act to the Constitution, Article III.
2. He then uses a construction argument to say that the semicolon in Section 13 of the Judiciary Act separates the two sentences [clauses] so that the writ of mandamus is original jurisdiction.
3. He has to assume this “break” to be able to hear the case at all (if it’s appellate it came up the wrong channels) and has to assume that the Constitution is a law, and that it’s superior to acts of Congress.
4. His final assumption must be that the “exceptions and regulations” clause is a negative not a positive power; that is, the framers enumerated original jurisdiction areas, so whatever they didn’t mention the Court is not supposed to have (an “if they didn’t say it they didn’t want us to have it” argument).

1. Marshall first asked, “Does the S Ct have authority?” He looked to the Constitution for an answer which was “yes” if the case was appellate and “no” if the case was original.
2.  Under the Const the answer was no – case was original.
3. Marshall, in looking first to Constitution assumed that it was the supreme law.
4. Marshall then looked to congressional acts that might have given the S Ct jurisdiction. He found that Sec. 13 of the judicial not gave the S Ct original jurisdiction
5. Marshall finally asserted the power of judicial review by saying if a congressional act contradicts the Constitution the S Ct must follow the Constitution and thus overrule the congressional act.

Note also the bit of confusion (for an uninformed reader; I would guess the writer was not confused) in 4. Marshall found that Section 13, as he interpreted it, could not constitutionally give the Court original jurisdiction. But he also found that, as he interpreted it, Congress had intended by that language to give the Court original jurisdiction. Thus, to say that “He found that Sec. 13 of the judicial not gave [meaning, presumably, "did not give"] the S Ct original jurisdiction,” while certainly true in the ultimate sense, expresses that conclusion in a way that skips any analysis of our historic semicolon.

Here are some other lines I’ve picked at random for comment.

From another excellent paper: “He states that Art. 3 does not allow Congress to grant writ of mandamus power to courts so section 13 of the JA is ineffective.” Given the rest of the analysis it’s clear the writer knows what s/he is talking about.

But there’s also a lesson here. Be precise in your writing. How many inexact expressions can you find? “Does not allow”? OK; but compare it with the “same” statement 4 from the first student's paper quoted above. “Does not allow Congress to grant writ of mandamus power”? Is that what Marshall said? Or did he say that it “Does not allow Congress to expand the Supreme Court’s original jurisdiction by granting [the Court the additional original jurisdiction provided in the last sentence of Section 13]”? “Section 13”? Aren’t we really just focusing on the last clause of the last sentence of Section 13? “Section 13 of the JA is ineffective”? Isn’t the case really all about whether or not it is unconstitutional rather than merely “ineffective”?

I’m not making the case for “why use one word when 10 will do.” You will discover that (partly as a result of trying to fit my op eds into 650 works) I value “lean writing.” The point is, whether one or ten, make sure you pick the right ones.

Could you say I’m being picky? Yeah, you could. (“You could say that, but you’d be wrong,” as a colleague of mine used to say.) But language that is vague or overly broad sometimes can be an indication of analysis that’s not as precise as it needs to be – sometimes involving issues that go to the crux of a case.

Here’s one from another paper: “Next he makes an assumption that the Constitution does not allow Congress to expand the powers granted in the Constitution.” “Powers”? Or “the itemized list of cases in which Article III grants original jurisdiction to the Supreme Court.”

And another: “This case is not authorized as a situation of personal jurisdiction under the Constitution.” “A situation of personal jurisdiction”?

And another: “Marshall asked if the Ct was able to issue writ of mandamus, and determined it was not, per Article III of Constitution.” True? Sure is. But it makes no mention of what I suspect the writer well knows, which is the analysis that leads Marshall to that conclusion (mentioning some excludes all others). It also suggests that what Marshall may have been saying applies to all Supreme Court cases rather than those arising under original jurisdiction. (As you will probably read somewhere in my instructions to you on the final exam, “I can’t give you credit for what I only suspect you probably know.”)

And another (Step 2 in its entirety): “In Section 13, the judicial system is divided into one supreme and inferior courts.” How does this relate to the progression of the argument at issue? And Step 4 (in its entirety): “Supreme Court is appellate.” What does this mean? If -- “A more proper interpretation of Section 13 would be that the Supreme Court only has mandamus jurisdiction in cases that come before it on appeal” -- then that’s probably correct. But it’s hard to know if that’s what the writer means.

And another: “Marshall assumes that the itemized list [a reference back to an earlier comment about the Article III itemization of original jurisdiction cases] cannot be altered.” Is it that the jurisdiction “cannot be altered” or that it “cannot be expanded”?

Occasionally there’s even a misstatement, as in this Step 5 of another paper: “Therefore, the crt doesn’t, according to the constitution, have jurisdiction over the case b/c it came on appeal, which is consistent w/ superior law of land.” If that’s a misstatement borne of haste it’s one thing; if it’s what the writer truly thinks a re-read of the case is probably in order.

On balance, as I've said in class and e-mails, I'm very pleased with the way you handled this exercise -- as well as your preparation for class and constructive contributions to class discussion. Hopefully, you'll be able to improve your performance even more, as well as develop some editing skills, if you are able to take the time to read through this memo, and then re-read and try to improve your own paper.