Legal Latin

Certiorari: SIR-shee-uh-RARE-ee Stare decisis: STAIR-ee dee-SIGH-sis Amicus curiae: uh-MEE-kuss CURE-ee-EYE Ratio decidendi: RAY-shee-oh dess-ih-DEN-die Obiter dictum: OH-bih-ter DICK-tuhm

Elements in a Brief – Appendix 8 Full Citation of the Case: e.g. Marbury v. Madison, 5 U.S. 137 (1803) Facts: Who did what to whom in order to create a controversy for the court to

decide? Statute/Action: what statute or action triggered the dispute? Constitutional Provisions: What constitutional provisions are implicated? Legal Questions: What questions of constitutional or statutory interpretation are

raised by the case? **the hard part** Outcome: What was the court's disposition of the case? What was the vote? Opinion of the Court: Who wrote the opinion of the court? Who joined? What

are the central arguments in support of the court's decision of each question? Legal Doctrine: What legal doctrine, standards, or policy did the majority

announce? Other Points of View: Which justices concurred? Which dissented? How do

these opinions differ from the opinion of the court?

Formulating a Legal Question

The Case of Tinker v. Des Moines (1969)

Facts of the Case

• Students at public schools in Des Moines, Iowa, wore black arm bands to school to protest the Vietnam War. When ordered to remove the arms bands, they refused, were suspended from school, and challenged their suspension in court as a violation of free speech rights. In 1969 the U.S. Supreme Court upheld the student's challenge.

Formulating the Legal Question

Formulating the legal question in a case is as much art as science. The art is finding the proper balance between too specific (fact bound) and too general.

Examples of Poorly Formulated Questions

•Too Specific

•Too General

Too Specific

• “Did the Des Moines School District violate the students’ rights?”

• The formulation of the question is fact-bound. It applies only to this case.

• The answer is to the question is “yes,” but notice that answering the question decides the case without establishing any legal precedent or principle. Answering “yes” to this question only establishes that Des Moines loses and the students win.

Too General

• “May symbolic speech be punished?”• The formulation of the question insufficiently

specific and would apply to many other cases with very different material facts.

• In the context of the Tinker case, the answer to the question is “no,” but it would be insane to interpret the court’s decision in Tinker to mean that symbolic speech can never be punished. What if the students had expressed their outrage over the war by burning their school?

Neither too specific nor too general

A good statement of the question has to include the material facts at an appropriate level of generality. Facts are “material” if they make a legal difference.

Are these facts material?

• the setting is a public school • the school is located in Iowa• those expressing their opinions are students • the arm bands were black• the expression was not disruptive

How about these?

• the students were Quakers • the students’ older sister was a college classmate

of Craig Allin• other symbolic expressions of opinion had been

allowed

Material facts plus Constitution

Combining the material facts with the specific portions of the Constitution alleged to be infringed we can state a question that is neither too specific nor too general.

A Well Formulated Question

• “May public school officials, consistent with the freedom of speech guaranteed by the 1st and 14th amendments, prohibit the symbolic expression by students of one particular opinion without evidence that such prohibition is necessary to avoid material and substantial interference with school work or discipline?” (No.)

“But, how can I?”

“How,” I hear you cry, “can I, a mere mortal without so much as a bachelor's degree, conjure up a question with all the artistry and precision exemplified in your most excellent example?”

Here’s How!

• 1 - Find the holding.

• 2 - Convert it to a question.

• 3 - Include material facts.

• 4 - Include Constitutional provisions.

• 5 - Fine tune for readability.

1 - Find the holding

• The holding is the court's answer to the Constitutional question in the context of particular material facts.

• You can convert the holding into a question.

The holding from Tinker

• “The prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.”

2 - Convert it to a question

• “Is it constitutionally permissible to prohibit expression of one particular opinion when there is no evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline?”

3 - Include material facts

• “Is it constitutionally permissible for public school officials to prohibit expression by students of one particular opinion when there is no evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline?”

4 - Include Constitutional provisions

• “Is it permissible under the 1st and 14th Amendments for public school officials to prohibit expression by students of one particular opinion without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline?”

5 - Fine tune for readability

• “May public school officials, consistent with the freedom of speech guaranteed by the 1st and 14th amendments, prohibit the symbolic expression by students of one particular opinion without evidence that such prohibition is necessary to avoid material and substantial interference with school work or discipline?” (No.)

Caveat

• Some court decisions are a lot harder to analyze than this one.

• Sorry!