4.1.2 USINGYOURRESEARCH TOHELPYOUSTRUCTUREYOUR ARGUMENT
A second method of identifying argument structure is to use your research. Look at that stack of authorities. Each one of those authorities made it into the “chosen” pile because it appeared to support some aspect of your argument.
Some authorities may support more than one, or even several, aspects of your argument. Ideally, you will have used an organized note-taking system as you reviewed each authority. For cases, for example, you may have recorded procedural information such as court and date, and substantive information such as issue(s), facts, holding, and reasoning. Now you can review those notes, and the authorities themselves, and look for organizing principles for your argument.One way to identify organizing principles is to identify argument points you can get from each authority. To do this, look at each authority and write out the ways in which the authority relates to or supports your argument. These points may be rules or policies8that the court would need to consider in order to decide the case, or assertions that the court would have to agree with to decide the case in your favor.
This is a brainstorming technique, so don’t worry about making the statements in perfect rule format, or even in formal language. Just use some method to list the holding(s) or other information from the authority that made you think the authority would be helpful to your argument, recording the source for each item. As you proceed through your authorities, you may discover that you have already written down the same assertion or a similar one from a different source. If that’s the case, simply add the new source to that item, perhaps noting the difference in a parenthetical. You may also have some assertions in mind that you can’t tie to a particular source at the moment; be sure to write those down as well.
Although many good writers compose at the computer keyboard, the computer may not be the best place to use this method.
You may want to write the assertions on index cards so that you can shuffle them around later. You may want to write them on a big piece of paper so you can think about how the statements from one authority connect to the statements from another authority, perhaps drawing arrows to make the connections more obvious to yourself.Let’s use the case of Miller v. Albright, 523 U.S. 420 (1998), for an example. The petitioner in Miller was the foreign-born daughter of a United States serviceman. The daughter wanted to become a United States citizen based on her status as the daughter of a United States citizen, but her parents had never married. Section 1409(a) of 8 U.S.C. imposed strict requirements for citizenship on foreign-born children of unmarried citizen fathers and foreign mothers. Because it imposed almost no requirements for citizenship on foreign-born children of unmarried citizen mothers and foreign fathers, the daughter sued to have the statute declared unconstitutional.
Let’s presume that you are researching Miller v. Albright on behalf of the petitioner, and you have reached a “partial stop” in your research. You have before you a stack of authorities that (you think) support your argument. You might come up with the following list of assertions that you believe the court has to agree with to decide in your favor:
List of points that court must agree with.9
1. Court should reverse decision below. 2. Statute is unconstitutional. 3. Statute discriminates on the basis of gender.
McGuffin v. Podsednik Patel v. Zahm 4. Court should scrutinize statutes that discriminate based on gender under intermediate level of scrutiny.
Reinsdorf v. Williams Ifeduba v. Coleman (“heightened” scrutiny) Crede v. State (“something less than strict scrutiny”) Restrepo v. Lamb Blum v. Vizcaino
5. Statute fails the intermediate scrutiny test.
Restrepo v. Lamb Blum v. Vizcaino Zawierucha v. Vanita Public Schools
6. Statute is even unconstitutional under rational basis-type scrutiny.
Kelly v. City of Chicago Yeary v. Brooks 7. Court should not defer to Congress even though this is an immigration law.United States v. Shaheen United States v. Pelehach United States v. Chu
8. The statute is not substantially related to the achievement of the government’s objective. Zawierucha v. Vanita Public Schools Restrepo v. Lamb 9. There is not an “exceedingly persuasive justification” for the distinction between the children of the two types of parents.
Reinsdorf v. Williams Ifeduba v. Coleman Crede v. State
10. It is not rational to distinguish between children of United States citizen fathers and children of United States citizen mothers. Kelly v. City of Chicago Patel v. Zahm 11. Stopping gender discrimination and “illegitimacy” discrimination is more important than allowing Congress control over immigration. United States v. Pelehach United States v. Chu 12. Someone who is a child of a United States citizen is not an “immigrant” and so a statute that regulates such a person is not an immigration statute. United States v. Shaheen 13. Biological parent-child relationships are important. Garcia v. Department of Social Services Indiana v. Buehrle 14. A statute that applies differently to citizens of different genders can be upheld only if it passes a significant level of scrutiny.
Ifeduba v. Coleman Crede v. State Restrepo v. Lamb Blum v. Vizcaino
After making the list, try to identify relationships between and among the points. For example, points 1 and 2 are really two sides of the same coin: If the statute is unconstitutional, the decision below must be reversed. Some of the points may be repetitive of other points, and so they can be eliminated, or the two repetitive points can be synthesized into one point, for example, points 4 and 14. Some points may be parts or subparts of other points, and so they should be grouped accordingly, for example, points 5, 8, and 9. Some points may be threshold issues, so you may decide that they should be addressed first.
If you have listed these points on index cards, you might try moving the cards around to identify the relationships between and among the points. You might stack the cards that seem to make the same point. If you have listed these points on a piece of paper, you might try drawing lines or circles to connect related points, or to identify a hierarchy among the assertions.10 Once you have figured out, even tentatively, how the points relate to each other, you are ready to draft an outline.