Transcript Class 2

Class 2
• Inspiration: Choosing a Subject
& Developing a Claim (cont’d)
• Initial Proposal
• Research Strategy
Inspiration: Choosing a
Subject & Developing a
Claim (cont’d)
Last Week:
• Choose and narrow your Subject
• Find a Claim
This Week:
• Test Your Proposed Solution for Soundness
• Preemption Check to Ensure Originality
What Makes a Proposed Solution
“Sound”?
1. Specific, not “mushy”
2. Discuss both the substance and
procedure of your proposed solution
3. Consider the political feasibility of your
proposed solution
TEST YOUR PROPOSED SOLUTION FOR
SOUNDNESS
1. Develop a “test suite” of hypotheticals to
analyze the soundness of your proposed
solution.
Example: You propose a statute requiring eviction
of tenants in publicly subsidized housing if “the
tenant or a guest engages in any drug-related
activity in the apartment.”
Hypothetical A:
Old lady evicted b/c her grandson smoked
marijuana in the apt. She was unconscious
in hospital at time so couldn’t have known.
Hypothetical B:
Conscientious mother finds out her son is
using drugs. Does everything possible to
make him stop—call police, get drug
counseling, confronts him, etc.
Hypothetical C:
Man suspects his sister, who lives with him,
sells drugs from the apt. He doesn’t want to
get involved, so every day, he stays in his
room.
TEST YOUR PROPOSED SOLUTION FOR
SOUNDNESS (cont’d)
2. Use “critical reading” techniques to
analyze your own claim.
PREEMPTION CHECK TO
ENSURE ORIGINALITY
• Look at the articles, books, and cases on
your subject to make certain nobody else
has already given thorough and thoughtful
treatment to the claim you intend to make.
Initial Proposal
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State your claim
Describe the existing commentary
Statement of originality
Mentor
Progress report
1.Your Claim:
Hazardous waste dumps are disproportionately located
in neighborhoods occupied by racial minorities. Under
current law, there is no feasible way for affected
minorities to sue for racial discrimination. The reason is
that the constitutional doctrine of equal protection
requires proof that the defendant’s action was taken
with intent to discriminate on the basis of race. [Cite
case]. However, in decisions regarding the location of
hazardous waste dumps, usually there is no racist
intent or such intent is exceedingly difficult to prove. To
provide relief to affected minorities, a federal statute
should be enacted that allows plaintiffs to prevail on a
claim of discrimination either by showing racist intent in
the decision of the site for a hazardous waste dump
or by showing that there is already a disproportionate
number of hazardous waste dumps in the proposed
location.
2. Describe the Existing Commentary:
a. Commission for Racial Justice, United Church of Christ,
Toxic Wastes and Race in the United States … : This report
describes how minorities are disproportionately affected by
toxic waste.
b. Target of Toxins: Poor communities charge 'environmental
racism,' USA Today … : This story covers a national summit on
the topic of environmental racism.
c. Lawrence S. Bacow & James R. Milkey, Overcoming Local
Opposition to Hazardous Waste Facilities: The Massachusetts
Approach, 6 Har. Envtl. L. Rev. …: This article proposes a
method to compensate neighborhoods for the harm done to
them when toxic waste dumps are located there.
3. Statement of Originality
My claim is original because it proposes a novel solution—
a statutory amendment—to the problem of
disproportionately siting toxic waste dumps in minority
neighborhoods.
My claim is distinguishable from [cite law review article] that
discusses how constitutional equal protection claims may
be a remedy for minority neighborhoods where toxic dumps
are located.
My claim is also different than the claim made in Bacow
and James R. Milkey’s article that any neighborhood where
a toxic waste dump is cited should be compensated.
My claim does use as background the facts found in
several publications, such as the USA Today story and the
United Church of Christ report, that discuss the problem of
environmental racism.
4. Mentor
5. Progress report (discussed below)
Research Strategy
Gathering Info
Assimilating Info
Gathering Info
1.
2.
3.
4.
5.
6.
7.
8.
Get the Big Picture
Find a Research Guide
Be Thorough with the Details
Be Accurate
Stay Current
Ask Someone
Be a Savvy Internet User
When Do I Stop?
1. Get the Big Picture
• Once you’ve identified your general topic,
read a short book on it—e.g., Foundation’s
Concepts and Insights, West’s Nutshells,
Matthew Bender’s Understanding series.
• Goals:
– Understand the field.
– Be able to draw on principles that arise in
areas within the field unrelated to your topic.
• Also, early on review a treatise in the area.
• Then look at law review articles, other
secondary sources. They will give you a good
guide to the statutes, cases, and other primary
authorities.
2. Find a Research Guide
• aka “Pathfinder”
• On many U.S. law school law libraries websites . E.g.:
http://www.law.seattleu.edu/library/research/startingpoint
s?static-page=yes
• Google search: “research guide” and “administrative law”
• LLRX.com “International Law Guides” and “Pathfinders”
• “Globalex” (NYU): International, comparative, and
foreign research guides.
3. Be Thorough with the Details
• Goals:
– Be thorough to be comprehensive and accurate.
– Be thorough to be certain your claim hasn’t been
preempted.
• “Legal Resource Index”: Index of 900 law
journals, law newspapers, and specialty
publications in the U.S. and Britain.
Covers 1977-now. Updated weekly.
Sample from Legal Research Index
AUTH: Perkins, Jared
TITL: Habeas corpus in the war against terrorism:
citizen enemy combatants
REFR: BYU Journal of Public Law 19 2 437-471
(FALL, 2005)
LCIT: Hamdi v. Rumsfeld 124 S. Ct. 2633 (2004)
TERM: War on Terrorism; Habeas corpus;
Detention of persons Combatants and
noncombatants
• Look at the Social Science Research
Network (www.ssrn.com) for unpublished
articles, i.e. “working papers.”
4. Be Accurate
Compare: Journalism—Credibility is a
journalist’s most important asset, and
accuracy is the best way to protect it. To
ensure accuracy, reporters must check
and double-check all of the information
they collect for a news story.
5. Stay Current
1. Look for the most recent article or case first
2. “Shepardize”
“Shepardizing”
Shepard’s Citations allows a researcher to:
1. Check whether an article in LEXIS has
been cited in any further articles or cases.
2. More…
Sample Shepard’s Results
6. Ask Someone
• To find the recent article or case, ask a
professor, lawyer, or judge who works in the
area.
7. Be a Savvy Internet User
• When using search engines (Google, Baidu,
etc.), remember: All information is not created
equal—websites don’t necessarily have an
editing process like treatises and law reviews.
• Learn the rules of search (e.g., how to limit
search to .edu or .gov sites, search for exact
phrase, search for two terms, exclude a term,
etc.)
Compare: Journalism: Whatever sources you use
to research the background of a story, it’s critical to
consider the validity and the credibility of the
source:
1. How does the source know what he knows?
2. How can I confirm this information through
other sources?
3. How representative is the source’s point of
view?
4. Has the source been reliable and credible in
the past?
5. What is the source’s motive for providing the
information?
8. When Do I Stop?
Lots of factors and no
easy answers...but...
• When the costs outweigh
the benefits
• When you keep finding
the same sources
• When you find the
answer
• When you run out of time