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1、-如何写case brief早看了这个上课就不至于那么迷茫了 555case brief writing 在英美法的学习中可谓是最常用的基本功了，由于面对的经常是洋洋洒洒的万言判决书，如何抓住case的重点，比如案件事实（facts）、争议点(issues)、法院认定(holding)、推理过程或者判决理由（reasoning），一个简明扼要的case brief 就非常重要了。那怎如何写呢？总结起来差不多有这样几种：一、FPIHRC写法（如下所述）Title (e.g. Roe v. Wade)Citation (e.g. 410 U.S. 113 (1973)Facts: Summariz
2、e the facts of the case. List only the essential facts that you need to understand the holding and reasoning of the case.Procedure: Most of the cases that youll read in law school will be appellate court decisions. In this section, you want to list what happened in the lower court(s). Do not go into
3、 too much detail. One or two sentences are sufficient for this section.Issue(s): What is/are the question(s) facing the court? Form the issue questions in a way that they can be answered by yes or no.Holding: How did the court answer the issue question(s)? YES/NO?Reasoning: This is the most importan
4、t section of your case brief. Here you want to list the reasoning of the majority in reaching its decision. You can actually be quite detailed in this section. List what the law was before this case was decided and how the law has changed after this decision. Law professors love to discuss the reaso
5、ning of a case in class discussions.Concurring/dissenting opinions: Even though I read the concurring and dissenting opinions, I rarely brief them. However, there are some cases (e.g. Youngstown Sheet & Tube Co. v. Sawyer) where the concurring or dissenting opinions end up becoming more important th
6、an the majoritys opinions. In such cases, you should add this section to your case brief.二、FIHRQ写法（注意：下面第一条的citation是每个case brief都必须要有的，另外还应当包含the cases title）I. CITATIONFrom what specific source is the case taken?For example, was the case reported in the U.S. Supreme Court Reports?II. THE FACTSA. M
7、aterial What materially happened? Was there, for example, a collision on the high seas? A dispute over territory?B. Legal From what legal circumstances did the case originate? Did two states agree, for example, to submit their dispute to an arbitral tribunal? Was an opinion sought from the I.C.J.?II
8、I. LEGAL ISSUESA. Specific What specific legal questions does this case raise? For example, does the proximity of Ruritania to Zombie Island give Ruritania a legal basis for making a territorial claim for Zombie Island?B. General What more general legal questions does this case raise? For example, i
9、s proximity a legitimate basis under international law for making a territorial claim for an island?IV. THE HOLDING What decision was made? That is, in support of which side did the court hold? For example, in Missouri v. Holland, did the court decide in favor of Missouri or Holland?V. LEGAL RATIONA
10、LE What legal reasoning informed the courts decision? What rules of law, for example, did it apply? How did it interpret legal principles, documents? How did it construe the facts?VI. QUESTIONS What existing legal questions, if any, are unresolved by this case? What new questions, if any, does it ra
11、ise?三、FIHR写法四、FIRAC写法Writing a Case Brief Case briefs are documents prepared by students as a study aid when trying to capture the essence and importance of appellate court decisions. A case brief summarizes a court decision by outlining, at a minimum, the facts of the case, the legal issues raised,
12、 and the rationale for the courts decision.There are many ways to organize a case brief and each structure may include and exclude items different than those requested here. The references listed at the end of this handout show the variation in how a case might be briefed, but they also provide addi
13、tional information to help you complete a brief. So, in addition to the items and explanations below, you should consult the references for additional clarity. For purposes of the assignment, follow the structure provided here in preparing your case brief.Case Name and RolesAs you learned in the cit
14、ing cases assignment, the case name will typically show two parties. In a criminal case the first party is invariably the government (probably state or federal) and the second party is the defendant. However, a case before an appellate court (which are the cases you will brief) may result in a switc
15、h when a defendant (now the appellant or petitioner) seeks action against the state (now the appellee or respondent). See Ferdico (p. viii) for a review of determining whos who in a case name. So, in addition to providing the proper case citation, this section of the brief will also specify the role
16、 of each party.Procedural BackgroundAppellate cases have, by definition, already had a trial stage. In fact, depending on what appeal level the case now being briefed is at, it may already have been to several appellate courts. The case brief should identify the courts that have dealt with the case
17、and indicate the decisions those courts have made. (See Ferdicos example (bottom of p. viii and top of p. ix) using Bond v. United States.) The sections of the court opinion that help identify the procedural background will also provide information for the “roles” section above. As a warningbased on
18、 briefs provided in other classessome students confuse the court opinion for the case now being briefed with opinions from earlier courts. This is another good reason to include the procedural background as part of a case brief since it helps you clarify how your case got to the U.S. Supreme Court (
19、the court for all briefs in this assignment). Remember, the brief you are writing summarizes the facts, issues, holding, and rationale in the U.S. Supreme Court opinion for the case name you have identified at the start of the brief. Dont confuse those items (especially the courts holding, rationale
20、, and disposition) with ones relevant to court opinions on this case at earlier stages.FactsIn one or two paragraphs, provide a concise summary of the incident that brought the case before the court. This will include a description of the crime and the circumstances causing the earlier courts decisi
21、on to be appealed. This is actually one of the more difficult parts of the brief since requires you to clearly identify and concisely state ONLY that information needed to understand the case. The decision itself usually includes a lot more information than is needed for the brief.The issues being a
22、ddressed in the case (see the following section) will help you determine what facts are especially important for your brief. In fact, some authors suggest you write the issues section first to help you more clearly identify the facts.Ferdico (bottom of column A and top of column B on p. ix) suggests
23、 the type of questions that should be answered in this section. As he notes, the behavior of the police during their investigation, confrontation, apprehension, detention, etc. of the defendant will probably constitute important facts in most of the cases you are briefing. It is important for you to
24、 remember, however, that behavior by magistrates, prosecutors, defense attorneys, trial judges, wardens, etc. can also be claimed to have violated right of the defendant (appellant/petitioner).Legal IssuePhrase, in your own words, the legal question the court has tried to answer in this case. State
25、the issue as a question (e.g., “Can a police officer. . .?”). Sometimes the issue is made very clear in the opinion (e.g., “This case presents the question. . .”, “The issue in this case is . . .”) but at other times it is not quite so “in your face.” Even when the issue is blatantly presented in th
26、e opinion, you should still phrase it in your own words. There are several reasons for this. First, court opinions often address several legal issues. In this class we are concentrating on procedural issues so you need to identify the specific issue related to the procedure followed by the police (i
27、n most of your cases). Second, court opinions are often long, wordy, and filled with terms unfamiliar to undergraduates. As a result, putting the issue in your own words (use the Ferdicos glossary to help understand some of the courts legal terminology) will help all of us understand it better.Decis
28、ion or HoldingHow has this court resolved the issue? What was the outcome? What action did the court take? Like the legal issue, the courts decision or holding is probably clearly stated in the opinion (e.g., “We hold . . .”).This should be a brief summary of the courts decision (see Ferdicos exampl
29、es in the various “Key Holdings” at the end of Chapters 3-14) and will, of course, resemble aspects of the legal issue statement. In this sense, the holding tells the answer to the question phrased as the legal issue. One could even claim the decision is a one-word or simple-sentence response to the
30、 legal question. For example, Ferdico (p. ix) uses this quote from Chief Justice Rehnquist:Obviously, your case brief needs to provide more information than “it did.” As Ferdico explains, you will probably find a more complete statement of the courts “holding further along in the opinion or at the e
31、nd, after discussing its reasoning” (p. ix).ReasoningWhy did the court reach the decision it did? What arguments justify the holding? Because judges often write many pages when justifying and explaining their decisions, this can be a difficult section for students to write. The doctrine of stare dec
32、isis requires judges to align their decision with legal principles established in previously decided cases. As a result, court opinions take considerable space to show how the current decision is consistent with the established principles. Your job is to state, as succinctly as possible, the rationa
33、le provided by the courts majority in support of their decision.DispositionSo, what happened as a result of the courts decision? You will find a specific disposition somewhere in the opinion. Ferdico (p. x) highlights the three most common dispositions: Affirmed The appellate court agree with the op
34、inion of the lower court from which the appeal came. Reversed The appellate court disagrees with the opinion of the lower court from which the appeal came and sets aside or invalidates that opinion. Reversals are often accompanied by a remand. Remanded The case is sent back to the court from which i
35、t came for further action consistent with the appellate court opinion. Remand often accompanies a reversal.How to Brief a Caseby John M. Scheb IIfor Political Science 430, 431 (“U.S. Constitutional Law”)Most instructors of constitutional law require students to prepare briefs of a number of assigned
36、 cases. Even in the absence of such a requirement, students may find that briefing a case helps one digest its contents. Preparing briefs is also an excellent means of studying for an examination that covers court cases. Below is an example of a case brief prepared in the style that we recommend to
37、students. Students will note that the brief below is exactly that: a very brief summary of the case. It highlights the basic issue, the essential facts, the decision of the Court, and the arguments set forth in the majority and dissenting opinions. We also encourage students to include a brief comment on the significance of the case.Sample Case BriefPlessy v. Ferguson (1896)Issue: Is a state law requiring equal but separate facilities for whites and blacks a violation of the Thirteenth and/or Fourteenth Amendment?-第 8 页-