- Feb 2014
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www.lawnerds.com www.lawnerds.com
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Various points are discussed in the briefs, but to us the dominant and conspicuous inquiry in the case is, was the plaintiff, during the period of this transaction, a public officer, charged with the enforcement of the law?
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STEPHEN GRAY, RESPONDENT, v. THERESA D. MARTINO, APPELLANT Supreme Court of New Jersey 91 N.J.L. 462; 103 A. 24 February 2, 1918, Decided
Gray (cop) v. Martino (crime victim)
type: respondent
- role: cop
- abbrev: Gray
- name: Stephen Gray
type: appellant
- role: crime victim
- abbrev: Martino
- name: Theresa D. Martino
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Dicta Dicta refers to anything that isn't relevant to the case's holding. Often judges will use a case to expound upon their theories of the law. The theories may not be relevant to the case at hand, but it gives the judge a chance to give direction to the lower courts by putting the theory in writing. Dicta does not carry weight as a precedent. But it's useful to note how the court might have ruled given a different set of circumstances.
dicta refers to anything that isn't relevant to the case's holding.
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THE ELEMENTS OF BRIEFING Procedural History Legal Issue Facts of Case Statement of Rule Policy Dicta Reasoning Holding Concurrence Dissents
The Elements of Briefing
- Procedural History
- Legal Issue
- Facts of Case
- Statement of Rule
- Policy
- Dicta
- Reasoning
- Holding
- Concurrence
- Dissents
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www2.gsu.edu www2.gsu.edu
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Reasoning The reasoning gives the reader insight into how the court arrived at its decision. It is instructive in nature. Courts often back their holdings with several lines of reasoning, each of which should be summarized in this section. Unnecessary repetition of facts or the issue should be avoided. A court�s rationale for its holding might be a simple explanation of its thought process. Alternatively, the reasoning might be based on the plain language of the statute, Congressional intent, the re-enactment doctrine, or other common means of resolving judicial disputes.
Several lines of reasoning may be used to back the Court's holdings and may be:
- a simple explanation of the Court's thought processes
- based on the plain language of the statute
- congressional intent
- re-enactment doctrine
- other common means of resolving judicial disputes (what are those?)
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Holding As the issue�s complement, the holding consists of two parts: (1) a “yes” or “no” conclusion to the brief�s issue and (2) the rule of law the court establishes. The rule of law is a guidepost that courts use to decide future cases based on the legal concept of stare decisis (judicial tendency to follow prior decisions).
The holding has two parts:
1) A decision on the legal issue (yes/no)
2) The rule of law the court establishes
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Beginning the issue with “are” or “is” often leads to a clearer and more concise expression of the issue than beginning it with “may,” “can,” “does,” or “should.” The latter beginnings may lead to vague or ambiguous versions of the issue. Examine the following alternative statements of the judicial issue from Aiken Industries, Inc. (TC, 1971), acq.: Issue 2 (Poor): Are the interest payments exempt from the withholding tax? Issue 2 (Poor): Should the taxpayer exempt the interest payments from withholding tax? In the first version of issue 2 above, to which interest payments and which withholding tax is the writer referring? The issue does not stand alone since it cannot be precisely understood apart from separately reading the brief�s facts. The extreme brevity leads to ambiguity. In the second version, the question can be interpreted as a moral or judgment issue rather than a legal one. Whether the taxpayer should do (or should not do) something may be a very different issue than the legal question of what the law requires. A legal brief, however, should focus on the latter. Rewriting issue 2 as follows leads to a clearer expression of the precise issue: Issue 2 (Better): Are interest payments exempt from the U.S. 30% withholding tax when paid to an entity established in a tax treaty country for no apparent purpose other than to escape taxation on the interest received?
Extreme brevity leads to ambiguity. The summary of the issue should be written to avoid opening the question to interpretation as a moral or judgment issue; instead focus on the legal question.
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Issues should be stated so that they “stand alone.” That is, issues should be completely understandable without reference to the facts or other sections of the brief or judicial decision. Use of the definite article “the” indicates that the issue does not stand alone when it alludes to prior information.
The summary of the issue should "stand alone" or be self-contained such that enough context and background is included in the summary to not have to refer to the document it came from.
I think this is an important pattern to use elsewhere, as well.
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www.law.uh.edu www.law.uh.edu
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dural issue : What is the appealing party claiming the lower court did wrong (e.g., ruling on evidence, jury instructions, granting of summary judgment, etc.)?
Procedural issue. What is the appealing party claimin ghte lower court did wrong:
- ruling on evidence
- jury instructions
- granting of summary judgment
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antive issue : A substantive statement of the issue consists of two parts -- i. the point of law in dispute ii. the key facts of the case re lating to that point of law in dispute (legally relevant facts) You must include the key facts from the case so that the issue is specific to that case. Typically, the disputed issue involves how the court applied some element of the pertinent rule to the facts of the specific case. Resolving the issue will determine the court’s disposition of the case.
- the point of law in dispute
- the key facts of the case relating to that point of law in dispute (legally relevant facts)
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b. Identify legally relevant facts, t hat is, those facts that tend to prove or disprove an issue before the court. The relevant facts tell what happened before the parties enter ed the judicial system. c. Identify procedurally significant facts. You should set out (1) the cause of action (C/A) (the law the plaintiff claimed was broken), (2) relief the plaintiff requested, (3) defenses, if any, the defendant raised.
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Identify the relationship/status of the parties (Note: Do not merely refer to the parties as the plai ntiff/defendant or appellant/appellee; be sure to also include more descr iptive generic terms to identify the relationship/status at issue, e.g., buyer/seller, employer/employee, landlord/tenant, etc.)
Identify the factual relationship of the parties, not just the procedural relationship.
Examples of procedural:
- plaintiff/defendant
- appellant/appellee
Examples of factual:
- buyer/seller
- employer/employee
- landlord/tenant
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Functions of case briefing A. Case briefing helps you acquire the skills of case analysis and legal reasoning. Briefing a case helps you understand it. B. Case briefing aids your memory. Briefs help you remember the cases you read (1) for class discussion, (2) fo r end-of-semester review for final examinations, and (3) for writing and analyzing legal problems.
Briefing a case helps you understand it and acquire skills of:
- case analysis
- legal reasoning
Case briefing is good for:
- aids memory
- class discussion
- end-of-semester review for final exams
- writing and analyzing legal problems
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nctions A. A case brief is a dissection of a judici al opinion -- it contains a written summary of the basic components of that decision. B. Persuasive briefs (trial and appella te) are the formal documents a lawyer files with a court in support of his or her client’s position
Distinctions
Tags
- statement of facts
- point of law in dispute
- procedural issue
- substantive issue
- legally relevant
- case brief
- procedurally significant
- function
- copyx
- judicial opinion
- facts
- parties
- persuasive brief
- legal brief
- procedural relationship
- factual relationship
- purpose
- issues
- distinction
- student brief
- jargon
- relationship
Annotators
URL
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www.lib.jjay.cuny.edu www.lib.jjay.cuny.edu
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A CAUTIONARY NOTE Don’t brief the case until you have read it through at least once. Don’t think that because you have found the judge’s best purple prose you have necessarily extracted the essence of the decision. Look for unarticulated premises, logical fallacies, manipulation of the factual record, or distortions of precedent. Then ask, How does this case relate to other cases in the same general area of law? What does it show about judicial policymaking? Does the result violate your sense of justice or fairness? How might it have been better decided?
Read the case to identify:
- unarticulated premises
- logical fallacies
- manipulation of the factual record
- distortions of precedent.
Then ask:
How does this case relate to other cases in the same general area of law?
What does it show about judicial policymaking?
Does the result violate your sense of justice or fairness?
How might it have been better decided?
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- Jan 2014
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www.dataone.org www.dataone.org
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The Data Life Cycle: An Overview The data life cycle has eight components: Plan : description of the data that will be compiled, and how the data will be managed and made accessible throughout its lifetime Collect : observations are made either by hand or with sensors or other instruments and the data are placed a into digital form Assure : the quality of the data are assured through checks and inspections Describe : data are accurately and thoroughly described using the appropriate metadata standards Preserve : data are submitted to an appropriate long-term archive (i.e. data center ) Discover : potentially useful data are located and obtained, along with the relevant information about the data ( metadata ) Integrate : data from disparate sources are combined to form one homogeneous set of data that can be readily analyzed Analyze : data are analyzed
The lifecycle according to who? This 8-component description is from the point of view of only the people who obsessively think about this "problem".
Ask a researcher and I think you'll hear that lifecycle means something like:
collect -> analyze -> publish
or a more complex data management plan might be:
ask someone -> receive data in email -> analyze -> cite -> publish -> tenure
To most people lifecycle means "while I am using the data" and archiving means "my storage guy makes backups occasionally".
Asking people to be aware of the whole cycle outlined here is a non-starter, but I think there is another approach to achieve what we want... dramatic pause [to be continued]
What parts of this cycle should the individual be responsible for vs which parts are places where help is needed from the institution?
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An effective data management program would enable a user 20 years or longer in the future to discover , access , understand, and use particular data [ 3 ]. This primer summarizes the elements of a data management program that would satisfy this 20-year rule and are necessary to prevent data entropy .
Who cares most about the 20-year rule? This is an ideal that appeals to some, but in practice even the most zealous adherents can't picture what this looks like in some concrete way-- except in the most traditional ways: physical paper journals in libraries are tangible examples of the 20-year rule.
Until we have a digital equivalent for data I don't blame people looking for tenure or jobs for not caring about this ideal if we can't provide a clear picture of how to achieve this widely at an institutional level. For digital materials I think the picture people have in their minds is of tape backup. Maybe this is generational? New generations not exposed widely to cassette tapes, DVDs, and other physical media that "old people" remember, only then will it be possible to have a new ideal that people can see in their minds-eye.
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data entropy Normal degradation in information content associated with data and metadata over time (paraphrased from [ 2 ]).
I'm not sure what this really means and I don't think data entropy is a helpful term. Poor practices certainly lead to disorganized collections of data, but I think this notion comes from a time when people were very concerned about degradation of physical media on which data is stored. That is, of course, still a concern, but I think the term data entropy really lends itself as an excuse for people who don't use good practices to manage data and is a cover for the real problem which is a kind of data illiteracy in much the same way we also face computational illiteracy widely in the sciences. Managing data really is hard, but let's not mask it with fanciful notions like data entropy.
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blogs.law.harvard.edu blogs.law.harvard.edu
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the parties, the procedural posture, the facts, the issue , the h olding, and the analysis.
Parts of a judicial opinion identified in a student brief:
- parties
- procedural posture
- facts
- issues
- holding
- analysis
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When a law student briefs a case, he typically identifies several pieces of information: the parties, the procedural posture, the facts, the issue , the h olding, and the analysis. Although it seems foreign at first, identifying this information, understanding judicial opinions , and applying their reasoning to new cases becomes much easier with practice.
The legal brief described here is a student brief, not to be confused with an appellate brief; the distinction is described in more detail in How To Brief a Case.
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the judge will state the legal issue(s) involved, her decision about the issue s (the holding) , and her reasoning.
the holding is a part of a judicial opinion that states the decision about the legal issues involved in a case.
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H o w t o R e a d O p i n i o n s
This section on how to read judicial opinions helpfully describes the components of what an opinion contains and some discussion of the challenges in identifying those components within the structure of the opinion.
The components identified here are:
- caption/name of parties
- name of the court
- date of the opinion
- date of oral arguments in appellate cases
- citation information
- name of judge(s) who wrote the opinion
- case history
- procedural posture (stage at which opinion was issued)
- information about facts of the case (especially for trial court opinions)
- statement of legal issues involved
- the holding (decision about the issues)
- the judge's reasoning
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The opinion will also typically give the name of the judge or justice who wrote it. In some cases, judges sitting together will decide not to reveal wh o wrote an opinion. In that situation, it will say p e r c u r i a m /DWLQIRU³E\WKHFRXUW ́ ) i QSODFHRIDMXGJH¶VQDPH
The garbled text quoted here should be:
it will say per curiam (Latin for "by the court") in place of a judge's name.
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In a judicial opinion, the judge explains her ruling and the reasoning behind it. At its heart, an opinion is similar to a scholarly essay or even a short story. However, like any genre, the judicial opinion has some unique and unusual characteristics.
The purpose of a judicial opinion is to explain the ruling and the reasoning behind it.
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www.lib.jjay.cuny.edu www.lib.jjay.cuny.edu
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Student brief A student brief is a short summary and analysis of the case prepared for use in classroom discussion. It is a set of notes, presented in a systematic way, in order to sort out the parties, identify the issues, ascertain what was decided, and analyze the reasoning behind decisions made by the courts. Although student briefs always include the same items of information, the form in which these items are set out can vary. Before committing yourself to a particular form for briefing cases, check with your instructor to ensure that the form you have chosen is acceptable.
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Appellate brief An appellate brief is a written legal argument presented to an appellate court. Its purpose is to persuade the higher court to uphold or reverse the trial court’s decision. Briefs of this kind are therefore geared to presenting the issues involved in the case from the perspective of one side only. Appellate briefs from both sides can be very valuable to anyone assessing the legal issues raised in a case. Unfortunately, they are rarely published. The U.S. Supreme Court is the only court for which briefs are regularly available in published form. The Landmark Briefs series (REF. LAW KF 101.9 .K8) includes the full texts of briefs relating to a very few of the many cases heard by this court. In addition, summaries of the briefs filed on behalf of the plaintiff or defendant for all cases reported are included in the U.S. Supreme Court Reports. Lawyer’s Ed., 2nd. series (REF. LAW KF 101 .A42).
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Confusion often arises over the term “legal brief.” There are at least two different senses in which the term is used.
Two different sense of the term legal brief are described here: appellate brief and student brief.
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- Nov 2013
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caseyboyle.net caseyboyle.net
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For all that, Quintilian continues and main-tains his own opinion that since dialectic is a virtue, so therefore is rhetoric. Quintilian should turn the whole thing around and should more correctly conclude that since dialectic is not a moral virtue which can shape a good man, so neither is rhetoric.
Dictating opinion? Hmmm, okay. By definition, opinion is grounded in personal anecdote and perception. This follows the same kind of logic. "He says that X = Y and therefore so does Z. But no! X=Y so W=Z." This is the overall issue with syllogisms: making inferences. Sometimes it works, sometimes it doesn't.
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- Sep 2013
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caseyboyle.net caseyboyle.net
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For the incantation's power, communicating with the soul's opinion, enchants and persuades and changes it, by trickery.
Our world is shaped by perceptions, defined by words.
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hence it is not now easy to remember the past or consider the present or foretell the future; so that most people on most subjects furnish themselves with opinion as advisor to the soul.
Opinion vs. memory, as if memory were absolute, infallible, objective.
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