6.1.2 WRITING AND USING EFFECTIVE PAREN THE TICAL DESCRIPTIONS
Parenthetical case descriptions are a useful alternative to in-text, or textual, case descriptions. “Parentheticals” can save both space and the reader’s time, but the writer must be careful to remember the principles of focus and completeness.
Incomplete parentheticals tend to be ineffective because they give the reader only a snippet of information. Often, unfortunately, the snippet does not contain enough information to make the case useful to the reader, who must decide whether the cited case provides authority for a ruling in the case at bar:
BAD EXAMPLE
See generally Virginia, 518 U.S. at 533 (plaintiff challenged gender-based classifications in state-run military schools); J.E.B. v. T.B., 511 U.S. at 138-40 (male juror questioned sex-based peremptory challenge).
These parentheticals tell the reader something about the issue (gender-based classifications) and the facts (the classifications occurred in a military school and in peremptory challenges to jury selection), but they do not tell the reader how the court resolved the issue or why the court resolved it the way it did. This type of snippet parenthetical may be effective, but only if the surrounding text — usually the text before the citation — supplies sufficient context. For a parenthetical to be effective, either the parenthetical alone or the parenthetical and the preceding text will give the reader information about at least three, and preferably four, of the required elements: the issue, the disposition, the facts, and the reasoning. In the first example below, the text before the citations provides the disposition, the issue, and the reasoning; the parentheticals, therefore, need include only the legally significant facts. In the second example, in contrast, which has no introductory text, the parenthetical includes all four elements:
GOOD EXAMPLES Courts have justified striking down 
a variety of gender-based classifications 
when those classifications were based on “overbroad generalizations about the different capabilities of men and women.” 
See, e.g., Virginia, 518 U.S.
; J.E.B. v. T.B., 511 U.S. at 138-40 (gender-based peremptory challenges in jury selection). J.E.B. v. T.B., 511 U.S. 127, 138-40 (1994) (“categorically” rejecting broad assumptions about capabilities of men and women to strike down sex-based peremptory challenges ). Issue
Disposition
Facts
Reasoning As with textual descriptions, using language effectively and focusing on the phrase-that-pays can help to make parenthetical descriptions more useful.
Knowing how to write effective parenthetical case descriptions is important, but the writer must also know when to use a parenthetical description. Deciding when to use a textual or a parenthetical description for a cited case is really a question about how much detail to provide. If little detail is needed, as when you are citing to a case only for rule authority, you can easily use a parenthetical description. Ultimately, your decision will be based on the answers to two questions: (1) How is the case significant to your argument? (2) What information does the reader need to have to understand the case’s significance? The more significant an authority case is, and the more important it is for the reader to understand its facts and reasoning, the more detail you need to provide in your argument.
If the issue or the authority case is more straightforward, on the other hand, you can provide a shorter textual description or a parenthetical description. Note that you should generally not provide both a parenthetical and a textual description for the same case. You may appropriately have a sentence with introductory text that precedes a citation with a parenthetical description. Generally, however, if you need more than a sentence of introductory text, you should use a textual description rather than a parenthetical one. Likewise, it is usually not appropriate to follow a parenthetical case description with further textual description of a case.As noted in Chapter Five, the ideal explanation section within each unit of discourse in your argument includes at least one case in which a court found that the rule applied to a certain set of facts, and at least one case in which a court found that the rule did not apply to a certain different set of facts. In most situations, you will want to provide a textual description of both of those cases. A sensible compromise is to provide one or two more detailed case descriptions, followed up — when needed — by citation to one or more illustrative cases with parenthetical descriptions.
Do not use this method as an excuse to bombard the reader with eight authorities when one would suffice. Cite an additional authority only when it illustrates some facet of the rule that your previous authorities did not illustrate, or when it proves that the interpretation you are illustrating is well established. (See the discussion about avoiding string cites in Section 6.5.5.)
The following example is an excerpt from a respondent’s brief in Minnesota v. Carter, 525 U.S. 83 (1998). The brief writer is using four cases to explain the rule that a person has a legitimate expectation of privacy in a location if that person can demonstrate an expectation that his or her activities would be private, and if society will accept that expectation as reasonable.
This example shows the “conclusion, rule, explanation” part of the formula. The writer begins by articulating the rule and citing to authority, and follows by stating in a summary fashion how the rule should apply to the client’s facts. The writer then proceeds to explain the rule, using the rule authority and other cases. In one of the cases, the Supreme Court found that no legitimate expectation of privacy existed. Some writers seem to think it is dangerous to let the court see any case in which a court ruled “against” their client’s interest. Effective writers, however, realize that if a so-called negative case is distinguishable, it can be used very effectively to argue against a particular result. Notice how the writer of this example gives details from the Rakas Court’s reasoning that he can use to distinguish the defendant in Rakas from his clients, who are claiming an expectation of privacy in an apartment that they visited for the purpose of packaging illegal drugs:
GOOD EXAMPLE
This Court has held that people will be recognized as having a legitimate expectation of privacy if they demonstrate an expectation that their activities are treated as private, and if it can be shown that society will find that expectation to be reasonable in a given situation. Katz v. United States, 389 U.S. 347, 361
(1967) (Harlan, J., concurring).
In this case, Respondents demonstrated their expectation of privacy when they lowered the blinds to the apartment’s window. Society should be prepared to recognize this expectation of privacy in a friend’s apartment as reasonable. Rule authority that will be used later in this section as illustrative authority and then described in full This Court has allowed Fourth Amendment protections to extend beyond the home when the defendants have legitimate expectations of privacy and society can accept those expectations as legitimate.
In Olson, this Court held that the unwarranted arrest of defendant, an overnight guest, was an illegal seizure. Id. The Court recognized that overnight guests have a sufficient interest in the privacy of the host’s home to be free from
unwarranted search and seizure.
Id. at 96-97. Furthermore, the defendant’s subjective expectation of privacy &
was found to be reasonable because society is known to recognize the social custom of
staying overnight in another’s home: “We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of
privacy in his host’s home.”
Id. at 98. The Court specifically noted that it is a “mistaken premise” that a place “must be one’s ‘home’ in order for one to have a legitimate expectation of privacy there.”
Id. at
96.
Illustrative authority
Issue
Disposition
Facts
Reasoning
Indeed, this Court has consistently found that legitimate expectations of privacy
exist outside the
home, as long as the circumstances are those in which most people would normally expect to enjoy a feeling of privacy.
Olson, 495 U.S. at 96-97. Accordingly, this Court has found that defendants did not have alegitimate expectation of privacy
& in the contents of a car in which they were merely passengers, and where they had expressed no expectation of privacy in the areas of the car searched.
Rakas v.
Illinois, 439 U.S. 128, 148-49 (1978). The Rakas Court specifically refused to make a finding as to whether guests in houses or apartments would be treated similarly, noting that “cars are not to be treated
identically with houses or apartments for Fourth Amendment purposes.”
Id. at 148 (citations omitted). See also Katz v. United States, 389 U.S. 347, 348 (1967) (defendant found to have legitimate expectation of privacy & in conversations in a closed phone booth ); McGuffin v. United States, 362 U.S. 257, 265 (1960) (defendant has standing
to challenge a search warrant used to arrest him while in a friend’s apartment ).
Issue
Disposition
Facts
Reasoning
The writer highlights the fact that the Rakas Court said that houses and apartments should receive special treatment under the Fourth Amendment. The writer can use this point to argue that guests in an apartment, unlike passengers in a car, are entitled to assert an expectation of privacy. Notice that in the parenthetical description of the McGuffin case, the issue was implicit: The writer trusts the reader to assume that the McGuffin Court was addressing in some way the issue of expectations of privacy, as all of the other cases did. Of course, if the McGuffin Court did not address that issue, the parenthetical should have made that clear, e.g., “analyzing res ipsa issue, court found that....”