How To Write a Case Comment

Presented by The Tax Lawyer & The

American Criminal Law Review

Introductions
The Tax Lawyer Board
Erica, Rob, Katharine, Danielle, Kirsten, Lauren

The American Criminal Law Review Board

Jeff, Brittany, Jeff, George, Andrew

What Is Write On?

The way you get on a journal for next year
You will need to complete:
Case comment
Blue book test
Optional personal statement
12 days (May 18 May 29)
Student ranks journals, then OJA matches
Scores:
Final paper score is average of three judges

Bluebook score is added to the paper score to get packet score

Then Write On packet score is combined with a score based on
your grades.

What is a Case Comment?

A case comment critiques the decision in a
particular case
Should provide your own original analysis of
the case

Approaches to the case comment

The case was decided incorrectly, because
The case was decided correctly, but the courts
reasoning was wrong
The whole area of law is a mess
The court missed the point
The court is correct
Something completely different

The case was decided incorrectly,

because
Demonstrate why the courts analysis is wrong
Most common approach
Must be careful not to mimic the dissent

The case was decided correctly, but the

courts reasoning was wrong
Demonstrate that the court applied the wrong
reasoning and explain why this was the wrong
approach
Must be careful to distinguish your reasoning
from the courts reasoning

The whole area of law is a mess

Use the principal case to suggest your own
approach to the area of law
Most ambitious approach
Make sure your approach is logical, yields
consistent results, and has public policy
support

The court missed the point

Analyze a different issue in the case that you
think the court missed
Make sure to incorporate the principal case
and the other materials in the write-on packet

The court is correct

Demonstrate that the court was 100% correct
Address the relevant counterarguments
Make sure not to simply repeat the courts
opinion

Something completely different

Use the case as a springboard for an original
legal idea of your own
Make sure the materials in the write-on packet
support your idea

Reading The Packet

Whats Provided

Preparing for the Packet

Procedures
Reading the Packet

Preparing for the Packet

Attend the Case Comment Workshop J
Read Preparation for the 2012 Write On
Competition: How to Write a Case Comment:
- This guide serves as a reference and includes:
1) Procedures & Write On Competition
Requirements
2) Technical Aspects of Writing a Case Comment
3) Sample Case Comments

Procedures
Packet Purchase & Availability
Dates of Competition: 5/18-5/29

Turning in Submissions
Carefully read the Write On packet instructions
Upload the completed materials & supplemental materials
to the competition website early

Write On Packet Contents

Consists of the case that you will be expected to analyze
using only the materials provided in the packet (i.e. the
packet will include other cases, secondary sources, etc.)

Procedures
Restrictions DURING the Competition:
- You may only use the materials provided in the
packet, a dictionary, legal dictionary, thesaurus,
and your Bluebook.
- You may not consult any additional materials
during the competition.
- You are NOT allowed to do any outside
research.
- You may not discuss and/or receive any
assistance during competition.

Reading the Packet

What You Will Be Given:
The principal case on which you are to comment
Maybe a lower court decision
Cases that bear on the principal case
Maybe statutes and legislative history, if
appropriate
Maybe law review articles
Maybe newspaper, magazine, or other periodical
articles

Reading the Packet

Helpful Hints:
Do not confuse the lower court case with the case that you
are supposed to be analyzing. The other cases are included
only to give you some basis for commenting on the
principal case.
You do not need to cite everything in the packet in your
comment. Your thesis might be narrowly defined to
eliminate the need to cite everything and some of the cases
might be superfluous.
However, you should be aware that the cases are there for a
reason. A dearth of sources in your comment will be noted.

Reading the Packet

Devote two days just to reading, more if briefing,
the packet.
Decide how you want to read the packet:
Chronologically
Makes the most intuitive sense, so you can get an idea of the
development of the law.

In order of importance
Also makes sense, but you will not have a very good idea of
the order of importance until you read a few cases.

Order in which the cases are given to you

Takes less thought.

How To Craft a Thesis Statement

Choose Your Approach

Review the materials carefully
Get to the POINT!!!
A Few Examples
Remember the Big Picture

Choose your approach

After reading, decide what your case
comment will argue:
The case was decided incorrectly.
The court is correct, but for the wrong reasons.
This whole area of law is a mess, and you can
do better.
The court missed the point.
The court is correct.
Your own legal pyrotechnics.

Remember: Review the Materials

Carefully
As you read through the packet, did one view
or the other jump out at you?
Which argument feels most natural to you?
Carefully noting and keeping track of your
sources will help you with this. It may help to
do a review of your materials and note which
cases support each approach.

Get to the POINT.

Your thesis statement should be extremely
clear about your argument.
It is perfectly appropriate to use direct
language, for example:
This Comment will argue that

A Few Examples
This Comment will argue that the Fourth
Circuit should have relied on Virginia state law
to dispose of the publicity element in Sciolino
v. City of Newport News.
This Comment will argue that the Eighth
Circuit should have applied a balancing test in
analyzing the endorsement clause in Wersal v.
Sexton.

Remember the BIG Picture

Make sure your thesis is streamlined and hones
in on the key point of your argument.
Your roadmap and the rest of your case
comment will provide the information
supporting your thesis.

Formal Requirements: Footnotes &

Page Length
A case comment has two main parts:
Analysisup to seven pages (but no more!)
Shorter than a true publishable case comment you
must focus on only the major points/critiques

Endnotesup to three pages

All the citations in the case comment should be placed
in endnotes that follow the analysis

Read the instructions carefully for specific

formatting instructions (different for the two
parts)

Formal Requirements: Footnotes &

Page Length
Usually, the analysis includes 4 parts:
Introduction (facts, procedural history, and
holding)23 pages
Roadmapabout page
Actual Analysis34 pages
Conclusionabout page

When editing for length, avoid sacrificing your

actual analysis

Formal Requirements: Footnotes &

Page Length
All citations should be placed in endnotes
Read the instructions to make sure you format the
endnotes correctly

The Three Primary Endnote Functions

Direct Citationwhen expressly referencing
information found in the materials
Supportive Citationwhen stating a legal contention
that is supported by information in the materials
Ancillary Pointsto provide the reader with analysis
that is useful but tangential to your main points

Formal Requirements: Footnotes &

Page Length
Read Bluebook Rule 1.1(a) for the rules on placing the
endnote call numbers within your textual sentences
Read Bluebook Rules 1.21.5 for the rules on using
signals and parantheticals that are appropriate to the
purpose of a particular endnote (direct citation,
supportive citation, etc)
Read Bluebook Rule 3.5 for the rules about using
supra and infra for internal cross-references
Read Bluebook Rule 4.2 for the rules on using supra
and hereinafter as short citations in appropriate
circumstances

Formal Requirements: Sections

Introduction
A. Statement of Facts
B. Holding
C. Roadmap
Analysis
Conclusion
The Statement of Facts & Holding can be
switched, depending on how
persuasive/interesting your facts are

Statement of Facts
1-2 pages
Relay any facts that are interesting and are
essential to your argument, just like LRW.
Objective, academic tone

Holding
- 1 page
Analogous to the Statement of the Case in a
brief.
Explain the courts reasoning behind the
outcome

Roadmap
page
Provide the Reader with your Thesis Statement
Lay out the different aspects of your argument,
corresponding with your headings
Convince the reader why this issue is
important and how your argument
demonstrates the optimum outcome
Should be introduced with language like This
Comment will argue

Analysis
Constitutes the majority of your comment
Should be organized around headings &
subheadings
Remember, you only have 7 pages, so keep it
relevant and concise
Outlining will be your best friend!

Conclusion

Page
Sum up the different prongs of your argument.
Mirror your roadmap!
Briefly restate the underlying reasoning for
your argument and what outcome you are
advocating for

Examples: Support & Citation

A footnote MUST be used when . . .

You cite an authority in the text

In Siefert v. Alexander,28 a sitting Wisconsin judge brought . . .

It is necessary to back up a proposition

Criminal voter disenfranchisement laws have existed for centuries.1

You may also use a footnote to make an ancillary point

39 The

courts finding of ambiguity is questionable, but is uncontested

for purposes of this Comment.

How Do I Use Footnotes?

**ALWAYS refer to the white pages of the Nineteenth Edition of The

Bluebook**

Here are some common problems in write-on citation formatting:

1. Italicization Bluebook 2.1(a)

Use ordinary roman type for case names in full citations:

Richardson v. Ramirez, 418 U.S. 24, 54 (1974).

Except for procedural phrases, which are always italicized:

41

36

See In re Vincent, 172 P.3d at 608 (citing In re Raab, 793 N.E.2d 1287, 1290 (N.Y. 2003)).

Use italics for the short form of case citations:

44

See Wersal, 613 F.3d at 836-37.

How Do I Use Footnotes?

2. Short Cites Bluebook 10.9(a)
In law review footnotes, a short form for a case may be used if it clearly identifies a
case that (1) is already cited in the same footnote or (2) is cited in one of the
preceding five footnotes. Otherwise a full citation is required.

36

Johnson, 405 F.3d at 1234.

37

Id. at 1232.

38 Id.
39 The

courts finding . . .

40 Johnson,

405 F.3d at 1234.

NOT: 44 See Wersal, 613 F.3d at 836-37.

45 Carey,

614 F.3d at 194.

46 129

S. Ct. 2252 (2009).

47 See

id. at 2257.

48 See

id. at 2257-58.

49 See

id. at 2265.

50 See

Wersal, 613 F.3d at 854.

How Do I Use Footnotes?

3. Internal Cross-References / Supra Bluebook 3.5 & 4.2
Portions of text, footnotes, and groups of authorities within the piece may be cited using
supra or infra.
Supra may also be used as short form citations for some sources.
Proper format: See Smith, supra note XX, at XXX.

11 See

Gray, supra note 6, at 26.

NOT: 8 See Varnum, supra note 2 at 134.

4. Id. Bluebook 4.1

Id. can be used for any type of authority except internal cross-references.
Id. may not be used if the preceding footnote contains more than one authority.
o Sources identified in explanatory parentheticals, explanatory phrases, or
prior/subsequent history are ignored for purposes of this rule. Thus:

26 Id.

at 1217 (citing Johnson v. Governor of Florida, 353 F.3d 1287 (11th Cir.
2003), vacated 377 F.3d 1163).
27 Id.

How Do I Use Footnotes?

5. Signals Bluebook 1.2
It is possible, and not uncommon, to incorrectly use introductory signals.
Dont just use see on every footnote to be safe.
Review the descriptions in The Bluebook, and use the signals accordingly.
Use commas and italics when appropriate.

56

See, e.g., Hunter v. Underwood, 471 U.S. 222 (1985).

NOT: 3 See, e.g. Wesley v. Collins, 791 F.2d 1255, 1261-62 (6th Cir. 1986).

52 Compare

Caperton, 129 S. Ct. at 2266 (recusal required in cases where

the judges impartiality might reasonably be questioned), with Wersal, 613
F.3d at 836 (same).

Comparing Good & Bad Examples:

Roadmap & Analysis
Components of an Effective Roadmap
Explains why the issue is important and describes the
discussion and thesis.
Purpose is to inform the reader about what is coming
so subsequent material is relevant and falls into place.

Components of an Effective Analysis

Organization corresponds to roadmap
Analysis ties to the thesis and argument using cases
and secondary sources
Stays on topic and discusses only what is relevant to
the analysis

Roadmap Examples
Example 1:

This comment will argue that, instead of relying on a strict scrutiny standard,
the Eighth Circuit should have adopted a more deferential balancing test when
analyzing the constitutionality of Minnesotas endorsement clause. This
approach would have allowed the court to uphold the endorsement clause and
brought the Eighth Circuit in line with the unanimous authority of state and
federal courts upholding the constitutionality of judicial endorsement
prohibitions. First, in summarily applying strict scrutiny review to the clause at
issue, the Eighth Circuit ignored the underlying rationale for the strict scrutiny
standard set forth in White I. Second, any argument that the balancing test
employed in other jurisdictions is inapplicable because Wersal was a judicial
candidate rather than a sitting judge fails, as the original logic justifying
application of a balancing test to speech restrictions requires no such distinction
between the two categories. Finally, recusal alone is not a sufficiently strong
safeguard for Minnesotas interest in maintaining an impartial judiciary. The
Wersal decision therefore significantly undermined this interest when it struck
the Minnesota endorsement clause.

Roadmap Examples
Example 2:
This comment will argue that the Eighth Circuits strict
scrutiny analysis in Wersal fails to properly consider litigants
right to due process under the 14th Amendment to the U.S.
Constitution. In cases that pit two competing constitutional
rights against each other, courts have recognized that limited
deference should be shown to the legislature that may not
necessarily be warranted when only one constitutional issue is
at stake. Instead of limited deference, the Wersal decision
seems almost willful in its failure to recognize the competing
constitutional principles of free speech and due process. In
addition, this comment will argue that the due process analysis
in Wersal is insufficient in light of the Supreme Courts
decision in Caperton v. A.T. Massey Coal Company.

Analysis Examples
Example 1:

A. The Wersal Courts Application of Strict Scrutiny Misapplies the Rationale of White I.
In failing to consider a balancing test as an alternative to strict scrutiny review when
analyzing Minnesotas endorsement clause, the Eighth Circuit stripped the White I holding of
its original rationale. It is undisputed that the freedom of speech has its fullest and most
urgent application precisely to the conduct of campaigns for political office. However, the
White I Court emphasized that the protected speech at issue necessitated strict scrutiny review
because it prevented judicial candidates from speaking about their own qualifications for
public office. While the announce clause struck down in White I, which prohibited judicial
candidates from speaking about legal or political issues, plainly prevented candidates from
discussing their qualifications for office, the judicial endorsement prohibition at issue in
Wersal does not. A judicial candidates endorsement of another candidate is primarily an effort
to affect a separate political campaign, rather than a communication of the judicial candidates
own qualifications. Before applying strict scrutiny, the Eighth Circuit should have recognized
the distinction between the need to allow judges to speak freely on the issues of the day, and
the states interest in maintaining a judiciary uninvolved in the political machinations that
accompany political endorsements. Because Minnesotas endorsement clause is aimed at
prohibiting judicial candidates from becoming caught up in political machinations, rather than
at prohibiting candidates from speaking freely on the issues of the day, White I did not require
the Wersal court to apply strict scrutiny.

Analysis Examples
Example 2:

When the court is weighing competing constitutional interests, courts have said
that there is a place for limited deference within the framework of strict
scrutiny. Because competing constitutional concerns require legislators to
engage in a balancing of interests, there is a greater likelihood that laws may be
either overinclusive or underinclusive, and therefore the courts should be less
exacting in applying the narrowly tailored prong of the strict scrutiny test.
Perhaps the majoritys awareness of the limited deference exception explains
why the Wersal decision seems to go to great lengths to avoid acknowledging
that the judicial bias is more than an ordinary policy concern, but is in fact a
constitutional concern of the highest order. Wersal focuses instead almost
exclusively on the impact of the judicial regulations on speech. Tellingly, the
Court utters the phrase due process (as it relates to judicial bias) only five
times across three paragraphs, and at no point does the Court note that the
impartiality guaranteed to litigants through the Due Process Clause is a basic
concept of the United States Constitution. As another Eighth Circuit judge
wrote in White II: Referring to constitutional rights [in judicial election
context], without even mentioning due process is stunning shallowness.

Timeline Non-working Students

Write-on competition dates: May 18-29.
That is 12 days, two weekends, and a holiday!
There is plenty of time to complete the
competition on your own schedule. This is
merely a guide.
Remember to budget time for the Bluebook
Exam.

Timeline Non-working Students

May 18-19: Bluebook Exam.
While not worth as much to your score as the Case
Comment, doing the exam first will help to
familiarize yourself with some of the more obscure
rules in the Bluebook. This may ultimately
improve the quality of your footnotes when it
comes time to write the Comment.
The Bluebook Exam could easily be completed
after you finish your Comment, instead.

Timeline Non-working Students

May 20-21: Read the cases.
Only read them; do not brief! But be sure to think
about the cases critically and holistically in an attempt
to develop a loose thesis.

May 22-23: Brief the cases.

Read the cases again, briefing them with an eye
towards your thesis.

May 24: Outline your Comment.

Make this meaningful!!
Think about your headers. Note which cases you want
to discuss at certain points in the argument section.

Timeline Non-working Students

May 25: Take the day off from working.
Use this time to let your ideas percolate and develop.
If you come up with anything new, jot it down on your
outline.

May 26-28: Write your Comment.

If your outline was good, this will be easy!
If you decide to make changes to your argument, you
will have plenty of time to incorporate them.

May 29: Perfect your Comment.

Do your best to remove any errors from your
Comment. Do not make substantive changes.

Timeline Working Students

May 18-19: Blue Book Exam

May 20-21: Read cases
May 22-23: 2 hours each night briefing cases
May 24: Outline your case comment
May 25: TGIF take a break and rest.
May 26-28 Finish outline, write comment
May 29: Proofread and submit!

Other Resources
EUGENE VOLOKH, ACADEMIC LEGAL WRITING
(3d ed. 2007).
ELIZABETH FAJANS & MARY R. FALK,
SCHOLARLY WRITING FOR LAW STUDENTS (3d
ed. 2005)
YOU CANNOT CONSULT THESE ONCE
WRITE ON HAS STARTED!!!

Ask A Judge!