Judicial Opinion
Step 1: Read the judicial opinions in this area of law. (See the syllabus and listen to the lecture over that topic for cases about that area of law as a starting place.)
Step 2: Pick the best 3-5 cases that would help your case / help you distinguish your case from earlier cases. Then answer the below questions:
Case 1 Name & Citation: (name of case and where you’d find it in a law book)
Case 1 Background Facts: (the who, what, when, where, why, how of the case)
Case 1 Issue: (this means the question in the case)
Case 1 Holding: (what the court decided; is X constitution / unconstitutional)
Case 1 Reasoning: (the court’s explanation of why it decided the case as it did)
What is/are the strongest argument(s) from this case?
Case 2 Name & Citation:
Case 2 Background Facts:
Case 2 Issue:
Case 2 Holding:
Case 2 Reasoning:
What is/are the strongest argument(s) from this case?
How is Case 2 similar to, or different from, Case 1?
Case 3 Name & Citation:
Case 3 Background Facts:
Case 3 Issue:
Case 3 Holding:
Case 3 Reasoning:
What is/are the strongest argument(s) from this case?
How is Case 3 similar to, or different from, Cases 1 and 2?
Case 4 Name & Citation:
Case 4 Background Facts:
Case 4 Issue:
Case 4 Holding:
Case 4 Reasoning:
What is/are the strongest argument(s) from this case?
How is Case 4 similar to, or different from, Cases 1, 2, and 3?
Case 5 Name & Citation:
Case 5 Background Facts:
Case 5 Issue:
Case 5 Holding:
Case 5 Reasoning:
What is/are the strongest argument(s) from this case?
How is Case 5 similar to, or different from, Cases 1, 2, 3, and 4?
Example:
I. Case Name & Citation: REYNOLDS v. UNITED STATES, 98 U.S. 145 (1879)
II. Facts Plaintiff (Reynolds), a resident of Utah Territory, was convicted of
bigamy under a Congressional statute. Plaintiff is a member of the Mormon church, which requires male members to practice polygamy, and alleges that his free exercise rights have been violated.
III. Issue: Does the plaintiff’s freedom to practice their religion under the Free Exercise Clause provide an exemption to a generally acceptable criminal law?
IV. Holding No First Amendment exemption exists to the law prohibiting bigamy.
V. Reasoning There is a difference between belief and action. Government may not punish religious belief but may punish action if it has a rational basis for doing so. [Cites Madison and Thomas Jefferson for “original intent”]. Polygamy has always been treated as an odious practice by the United States and European (as opposed to Asiatic and African) peoples.
Step 3: Do additional research about this area of law. What does the Constitution have to say about it? What do experts think? (Legal experts or other types of experts?) What does the public think about this issue? Etcetera. List out some claims / arguments from these sources.
Step 4: Either based upon how you want to decide the case, or how you think the case should be decided based upon case precedent (these can be the same thing, or they can be different things), how should this case be decided?
Step 5: What is/are your argument(s) in favor of your holding?
Step 6: What evidence supports your argument(s)?
Step 7: Write up one paragraph per argument, stating what your argument is, then using evidence to support your argument. Evidence can include the Constitution or statutes, case precedent, narratives/examples, expert testimony, commonly accepted facts, etc.
Step 8: Write up how the case in question is similar to, or different from, earlier case precedent.
When you write up your judicial opinion, you can include the background facts of the case as provided, or you can alter them. The background facts should not be included in your word total (750-1250 words).
Step 9: Begin to draft your opinion.
Step 10.A. Name the appellant and the respondent in your opinion, using the format below:
Cite as ____ U.S. ____ (2023)
Opinion of the Court
FIFTH CIRCUIT COURT OF APPEALS
__________
No. 15-2597
__________
APPELLANT [replace with your party’s name]
v.
RESPONDANT [replace with your party’s name]
[October 17, 2023]
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
JUSTICE [YOUR LAST NAME] delivered the opinion of the Court, in which [ANYONE ELSE YOU WANT TO JOIN YOU—REMEMBER YOU TYPICALLY NEED 5 PEOPLE FOR A MAJORITY (if no one recuses themselves)] joined.
Step 10.B. State the issue in the case. (You need to decide the question of law in this case.)
I.
Step 10.C. Write your statement of facts. You may use the one provided in the assignment description, or you can tweak the facts to fit your goals. (This should not be included in your word count (because it is provided for you for / you are not writing it from scratch).
Judicial Opinion #2
During the 2016 presidential election, Senator Marco Rubio claimed that presidential candidate Donald Trump had “small hands.” Subsequently, Steve Elster tried to register the phrase “Trump Too Small” so that he could print and sell t-shirts using that phrase. The Patent and Trademark Office (“PTO”) rejected Elster’s application, citing Section 2(c) of the Lanham Act that prohibits the registration of a trademark that uses the name of another living person without that person’s permission. The PTO’s Trademark Trial and Appeal Board upheld the PTO’s decision. The US Federal Court of Appeals reversed, claiming that Section 2(c) violates the Free Speech Clause of the First Amendment. According to the appeals court, the government does not have an interest “in restricting speech critical of governmental officials or public figures.” The Biden Administration requested the Supreme Court consider the issue. The Court heard oral arguments November 1, 2023.
II.
Step 10.D. Write the explanation of your reasoning. Why you decided the way you did. You might be able to drop in the paragraph(s) you wrote from Step 7 here. You likely will want to include arguments as to how this case is similar to, or different from, previous cases in this area of law (from Step 8). Be sure to consider (or reject) any doctrinal test this area of law might use. This section likely will be broken up into subsections (using letter headings—A., B., C. etc.). The bulk of your word count will come from this section.
III.
Step 10.E. Write a conclusion to your opinion. Restate your holding and your argument(s) briefly.
Additional Comments:
– Format. This is a general format. You can alter the format slightly. Look to actual appellate legal opinions to follow their formatting.
– Examples. I have provided an example opinion form a religion law case I wrote when I was in law school for you in the “Handouts” section of Blackboard. My opinion there is much longer than the word count I ask of you for this assignment. You also have examples from every single opinion the Supreme Court has issued. Feel free to utilize them.
– Creativity. You can be creative in this assignment. You decide how this case should be decided, and on what grounds. We have observed a wide variety of reasons the Supreme Court has used to decide cases—know you have that liberty when constructing the arguments for your own opinion.
– No Right Answer Exists. No “right” answer exists for how these hypos should be decided. You can ground them in legal argument / precedent, or you can decide to ignore, overturn, or go against legal precedent—you just have to provide a good reason for why you do so.
Have fun “donning” the judicial robes!
