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Purpose and Scope

Generalizations and Labels vs. Holdings, Synthesis and Analysis

The "Assignment"

Length

Anonymous Submissions

The Cases

How to be Stylish

Working Smarter and Harder

This document is designed to serve a number of purposes. (1) Perhaps most important are a couple of substantive assignments to do in the course of your re-write. (2) As promised, there are in that connection citations to a number of cases you will need to read. (3) There are also some suggestions about style; the kinds of superficial polish that sets you apart from the crowd (or, in practice, makes the judge or lawyer you're working for look better). (4) Finally, there are some general suggestions about work habits designed to simultaneously take less time while producing a better product.
 

The discussion which follows in this section is designed to help you understand the assignment.

As discussed in class, and virtually every one-on-one conference, I think it will help you throughout the rest of your law school experience, and certainly in your law practice, to focus on holdings rather than labels.

Does our Constitution contemplate "three branches," with "checks and balances," a "separation of powers," with limitations on the extent to which, for example, the Congress can "interfere with the judicial process"? Absolutely. Is it useful for you to know that? Yeah, probably. So what's wrong with using that language in a specific legal problem (e.g., essay exam question, small section writing assignment or moot court brief)? What's wrong is that such language subtracts from and obliterates, rather than adds to and clarifies, detailed analysis. It sets you up to be blown out of the water by an opponent who does know how to argue from holdings and syntheses.

Just one example. (I use McCardle and Plaut, but obviously could have used a number of other cases to make the same point.)

In McCardle the Congress pulled a case right out from under the Supreme Court justices' noses after it had been argued and was ready for decision. Was that an interference with the judicial process? You're darn right it was. And a pretty dramatic interference, I'd say. Did it involve a "retroactive" application of a law (in that case jurisdiction)? Yup.

Now consider Plaut. Congressional interference with the judicial process? Yeah, you bet. Enough so that it sent Justice Scalia into orbit. Did it involve a "retroactive" application of a law? Sure did.

Did both cases involve facts and issues that one might try to resolve by applying "the doctrine of separation of powers"? I suppose so; sure looks like it. So apply it. What does it get you? Two "separation of powers" cases. Two cases of Congress interfering with the judicial process. Two cases of "retroactive" legislation. And yet the Court says one is clearly OK, and the other is a no-no.

So what good were all your labels? They didn't help much, did they?

What we need to know is what was it about the facts in McCardle that led the Court to say so willingly, "OK, boys, I guess you got us. We don't have jurisdiction after all. Case dismissed"? What was it about the facts in Plaut that caused the Court to rise up on its 18 hind legs (actually 16, since Justice Stevens dissented) and say, drawing on the line from the movie "Network," "Whoa, boys, now you've gone too far. 'We're mad as hell, and we're not going to take it anymore'"?

The same analysis can be done with any legal labels, including in our problem such as "law" and "equity," or "final judgment" (further complicated by the fact that label is used in two entirely different contexts in our problem).

At this point I see a couple of hands raised. And the first of you I call upon says (because by now you've observed that I like "mildly sassy" in students), "I don't know how closely you read the Plaut opinion, professor, but about half-way into Scalia's opinion he says, and I quote, 'Section 27A(b) effects a clear violation of the separation of powers principle.' Now what I'd like to know is if a Supreme Court Justice can talk about 'separation of powers' how come we can't?"

I retort, "Because you are not, yet, a Supreme Court justice" -- following which Amanda reminds me that the reason no one responds to what I thought was an incredibly clever line is because I'd used it before. So I continue.

I explain, (1) The standards of excellence to which I want you to aspire are not measured by those of others, not even the justices. Remember Justice Roberts' line in Butler? All you need to do, he said, is "lay the Constitution beside the statute and decide whether the latter squares with the former." Try that level of analysis in an essay exam answer, or later in a real appellate court brief, and see how far it gets you. (2) Justice Scalia's use of the generalization "separation of powers" at least followed, rather than preceded, a lengthy discussion of cases. (3) It really does make a difference if you are a judge rather than an advocate; not only can judges do pretty much whatever they want, but judges are supposed to state the "rules" and conclusions that apply to the facts before them. It's up to us to figure out, based on those appellate court opinions, how the facts in our case are sufficiently similar to be controlled by the prior case, or sufficiently different to be distinguishable.
 

I put quotes around "assignment" because "the assignment" is simply to prepare a re-write of your paper. So what follows is more in the nature of something designed to be a helpful assist to you in doing that re-write.

NOTE: To remove any possible ambiguity, this "assignment" does not substitute for what you are doing anyway: preparing a revision of your first draft. You still need to continue your research and search for issues you may have missed. You still need to provide the best possible ordering of the arguments you present. You still need to edit and proof read carefully. And so forth.

1. The problem's formulation of the first issue is "whether [the law] is unconstitutional [because] it eliminates judicial review of agency decisions."

As we know by now, everything done by the Congress, federal courts and president -- if it is to be found constitutional -- must come from a power found somewhere in the Constitution. It may be vague, it may be implied, it may come from a number of enumerated powers (as in McCullogh). But there has to be some language, somewhere in the Constitution, from which the power derives. Moreover, given the often general or vague language, we must also look to Supreme Court (and other courts') opinions for the meaning of that language, as it is held to apply, or not, to various specific fact situations.

So, make sure that your analysis refers to (a) the specific words in the Constitution upon which you rely in concluding that PL 108-1A is, or is not, constitutional. (b) And indicate which Supreme Court, or other, opinions' holdings you are relying upon as consistent with your interpretation of those words. (Is Bowen such a case? Why or why not?)

2. Having read the section above regarding labels and syntheses, include in your re-write an analysis (not a mere recitation of "this case involved these facts and held that and then this other case involved these facts and held the other") of the facts and holdings of the cases that involve in some way "Congress' interference with the judicial process" (i.e., the second issue in our problem). Your analysis should include, and work with, your synthesis of those cases. What is it about the facts in our problem that -- when compared with the interweaving of facts, issues and law in those other cases -- makes it comparable to, or distinguishable from, those cases?
 

Given the section above, it is unlikely that you are going to be cutting back very much on the seven-page requirement for the first draft. However, as discussed in class, for purposes of this revision you are not required to fill out seven pages. Write lean, clean and mean. If that's less than seven pages, so be it. You must, however, write at least a full three pages of material and, as before, no more than seven, give or take a half-page. (Seven, plus three, plus a 15-page brief will meet the law school's 25-35-page small section writing requirement).
 

Since, at some point, I am going to have to compare first, with revised, drafts for each of you, numbered submissions would not be required as a matter of law school policy.

However, given my preference to evaluate anonymously, and a sufficiently deficient memory to maintain anonymity, please submit your paper using the same numbering system we used the first time. That will give me the ability to read the re-writes on a stand alone basis, not knowing whose they are, and read them a second time alongside the first drafts, still not knowing the author, come up with and enter a grade -- and then find out whose grade it is.
 

You'll recall I suggested you start with the forest before you worry about the trees (i.e., read the casebook or a treatise before you start reading court opinions). I mentioned that much of what you would need by way of cases is contained in the casebook material (i.e., not only the cases included, but the cases to which those cases refer), pp. 73-82. Note that the following is not "the list." Some of the cases here are obviously more useful than others. There are additional cases, not listed here, that you may want to use for these, or other, elements of your presentation.

[In that connection, here are some stats you may find of interest regarding your colleagues' use of cases and other cited material. The number of individual sources cited by each of you ranged from a low of 5 to a high of 15, with a mean of 10.39. (I haven't looked to see if there is any correlation with grades, but I would doubt it. It's the quality of your analysis, your effective use of what you do cite, not the number of cites per se.) Considering all of your papers together, there was a total of 79 different cases and sources. The only two sources used by everyone were Bowen and Plaut. Marbury and Klein were each used by 16, McCardle by 15, Abbott and Miller by 14.]

That would include:

Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1869), and
Durousseau v. United States, 10 U.S. (6 Cranch) 307 (1810) (cited by McCardle).

The notes following the case refer to:
Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868) and a more modern case
Felter v. Turpin, 518 U.S. 651 (1996).

Later there is reference to:
Glidden Co. v. Zdanok, 370 U.S. 530 (1962),
United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) and
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

And of course the problem itself put you on to:
Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986).

Plaut, in turn, refers you to (in addition to some of those above; but an illustrative, rather than exhaustive, listing):
Robertson v. Seattle Audubon Soc'y, 503 U.S. 429 (1992),
The Federalist No. 78, 81 (Alexander Hamilton),
Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798),
Bates v. Kimball, 2 Chipman 77 (Vt. 1824),
Gordon v. United States, 117 U.S. 697 (1864),
Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792),
Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856),
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801),
Paramino Lumber Co. v. Marshall, 309 U.S. 370 (1940) and
United States v. Sioux Nation, 448 U.S. 371 (1980).
 

I had asked that you look at the Cyberspace Law Seminar "Writing Assignments" page, http://www.uiowa.edu/~cyberlaw/cls03/cls03wri.html. Some of you did, some of you didn't. I do think you will find it useful. (Otherwise put, some of you lost points because you didn't do things it suggests.) Although it's designed for a seminar, not a first year small writing section, it won't hurt to scan the whole thing; who knows what you might pick up that would be helpful now (with your first writing assignment) or later (with the brief; or your seminars subsequently). But I would especially bring to your attention the following sections within it: "General Tips and Requests for All Documents," "First Final Drafts and Their Revision," and "What I'm Looking For: Seminar Paper Grades." (The Web page contains interior links to these sections, so you can just click on them in the table of contents.)

Obviously, style without substance won't carry you very far. But substance with style will give you an extra boost. (To clarify any confusion on this score: You need not use Blue Book citation form on this re-write. We'll come down hard on that later, but not now. Aside from any subconscious influence beyond my control and awareness, it is my intention to neither add, nor subtract, points for citation form.)
 

1. President Lyndon Johnson used to say occasionally, "They call me 'Lucky Lyndon,' but I always discover the harder I work the luckier I get." To make this bi-partisan, you'll recall the quote from President Richard Nixon in the "So You Want to Be a Lawyer" piece: the thing you need to be a successful law student, he said, is the ability to put in long hours studying, an ability that he believed was dependent upon "an iron butt."

I've often repeated to you the saying, "work smarter, not harder." And I believe in it.

But the best results probably come from working both smarter and harder. Given two law students of roughly equal ability, the best results will come to the one who brings to any assignment the most personal interest and enthusiasm. It will be the one who finds the most cases and other references, thinks the most about the analysis and organization, and then re-writes and proof reads their draft the most times. Given equal ability and skills, more hours invested do pay a return. In short, "the harder you work the luckier you'll get."

My impression is that you all took the assignment seriously and did work hard on it, but I thought it worthwhile to suggest you think about your own paper from this perspective.

2. Time management skills are something you've long since developed or you wouldn't be here. But they are particularly significant in legal writing. Pace yourself. Work away on a project a bit every day or so, rather than bunching all the effort near the deadline. This usually makes for a much better thought out, and well-written, product -- while reducing stress and minimizing errors.

3. One of the most valuable suggestions in the Peters-Jones presentation last Wednesday afternoon (which many of you missed) was the notion of repeating the cycle of thinking, research, further analysis, organization, writing and editing, rather than just going through it once. This need not take more total time; indeed it usually ends up taking less. It also involves an element of what I call "the ratchet principle." In other words, you do enough research to comprehend, organize, outline and write from the perspective of at least a roughly accurate sense of the problem. Absolutely worst case, now you have something you could turn in if you had to. The questions this draft raises, or with which it still leaves you, send you back to do more research, which leads to better analysis, revision, more writing, and editing. You then go through the cycle again. (For what it's worth, do you see the analogy to what we call "the scientific method"?) This process is almost guaranteed to contribute to your producing a better product than if you had put in the same amount of total time on research, but saved all the actual writing until last.