Notebook Research Assignment #1: Draft Instructions



Summaries Of Cases: Instructions

Draft Due: Sunday March 13 @ 8:00 p.m.

Final Version Due: Monday, April 24 @ 8:00 p.m.

Method of Submission: Via e-mail. The summaries should be sent as an attachment in Word. Put all summaries of cases submitted at the same time into a single document, but begin each individual summary at the top of a new page. If you are submitting summaries of both statutes and cases at the same time, create two documents, one including all the statutes and one including all the cases.

Content: You will provide information as an outline substantially in the form below. More detailed discussion of general instructions and of individual categories follows.

OUTLINE OF SUMMARY:

[Heading] Name of Case and Citation (Category)

A. Overview: [Posture, Result, Author; Majority or Plurality]

B. Affirmative Religious Claims: [numbered list in order addressed by court]

1. Type of Claim[treatment; impact; etc.]; (relevant statute); Brief description of claim; result.

• Summary of substantive arguments addressing the claim done as bullet point list or further levels of outline

• …

2. [Same for each type of claim made]

C. Religious Defenses: [numbered list in order addressed by court]

1. Nature of Defense [Statutory; Constitutional; or RFRA] (relevant statute or constitutional provision): Brief description of claim; result.

• Summary of substantive arguments addressing the claim done as bullet point list or further levels of outline

• …

2. [Same for each type of claim made]

D. Concurring/Dissenting Opinions [numbered list in order presented]

1. Type of Opinion (Author & Concurring Judges):

• [Summary of substantive arguments disagreeing with or qualifying majority done as bullet point list or further levels of outline with brief heading to cross-reference to relevant part of majority]

• …

E. Subsequent History:

General Instructions on Summarization.

Coverage: You should summarize any discussion in the case that is relevant to the course regardless of whether it was the focus of the assignment where you identified the case. Thus, if a case includes both treatment and accommodations claims based on religion, you should discuss both. If a case includes both federal and state religious discrimination claims, you should discuss both.

Summarizing: The heart of this assignment is to accurately and concisely report the major arguments made by the judges with regard to the issues relevant to the course. The amount of detail you include will always be a judgment call. Some guidelines:

• Do not include discussions of procedural or technical issues like the standards for granting summary judgment, the admissibility of evidence (for reasons other than relevance), the sufficiency of EEOC filings, when the statute of limitations starts to run, etc. If a religious claim is dismissed on technical grounds, you can briefly state what happened without going through the court’s reasoning. (E.g., “Claim failed due to stat. of lim.” or “claim failed because preliminary EEOC filing inadequate.”)

• Focus on issues that are contested. For example, if a court simply applies a version of the prima facie case without any consideration of alternatives or any challenge from the parties, you need not summarize any of the boilerplate language giving the history of McDonnell Douglas. However, if the court addressing an issue relevant to the course considers several substantive legal tests and chooses one, you need to summarize its reasoning.

• When in doubt, include more detail the more central an issue seems to be to our major themes. For example, in a disparate impact case, if a court finds the statistics inadequate because the raw numbers are too small or because of some inadequacy in the methodology, report that briefly. If the court finds a problem with the statistics that seems to be attributable to the claim being based on religion, discuss it at more length.

• Break more complex arguments down into component parts using further layers of outlining or multiple layers of bullet points. Use the formatting to help a reader understand the structure of the arguments. I don’t care about the precise form used as long as you stay within the framework I’ve laid out above.

• Where a court examines evidence of, e.g., discriminatory intent or undue hardship at some length, try to include a fairly thorough summary of the evidence it finds relevant. This is helpful to our project by showing what sorts of facts tend to be relevant in religious claims. You might, e.g., provide subheadings that include (i) an overview of the evidence the court thought supported the plaintiff; (ii) an overview of the evidence that the court thought supported the defendant; (iii) a summary of the court’s discussion of why it found one set of evidence more persuasive or insufficient.

• Quote cases directly where a court announces a particular legal test or if a phrase or passage seems particularly important and concise. Don’t include long block quotes where shorter paraphrases will convey the same information.

• As long as your work is clearly understandable, you can use abbreviations, sentence fragments or telegraph English to save time. E.g., “Refuses to adopt 3d Cir. definition of “undue hardship” [summarize definition] b/c [list reasons].”

Specific Instructions for Each Subheading:

Heading: Cite to only one reporter. Use regional reporters for state cases but clearly indicate the relevant jurisdiction in the first parenthetical. The second parenthetical should indicate whether the case covers employment, housing or public accommodations.

A. Overview: Give the information indicated below. I don’t care about the order in which it appears.

1. Trial Court Cases: Include the procedural posture of the case at the time of the opinion, the result, and the name of the judge. E.g.,

• Judge Jordan granted the defendants’ motion for summary judgment on all issues.

• Motion to dismiss complaint for failure to state a claim granted in part but denied as to religious discrimination issues by Bryant, J.

• Judgment for Plaintiff After a Trial (James, C.J.)

2. Appellate Court Cases: Include the nature of the lower court decision, the result, the author of the primary opinion, whether it was a plurality or a majority, and the names of any judges who concurred if it was a plurality. E.g.,

• Trial Court entered judgment as a matter of law for defendant on all claims after jury verdict for plaintiffs. Court affirmed in part and reversed in part, reinstating part of jury verdict related to harassment claim. Plurality opinion by Justice Chamberlain (with Erving, Johnson & Stockton).

• Majority Opinion by Justice Wade affirming judgment after trial for plaintiff on all issues.

• Appeal from grant of summary judgment for defendant. Affirmed. (Majority; Bird, C.J.)

B. Affirmative Religious Claims

1. What Claims to Include: Affirmative claims brought under anti-discrimination statutes alleging discrimination on the basis of religion, including treatment, impact, retaliation, harassment, and failure to accommodate. Each separate claim of this type that the court discusses should be listed and summarized under a separate subheading. Note that some cases contain more than one treatment claim (e.g., (i) failure to promote and (ii) termination) Cover all relevant claims, whether state or federal, in the cases I ask you to summarize. Do not include claims made under RFRA, RLUIPA, or their state equivalents.

2. Subheadings: Should include the following:

• The type of claim: E.g., Disparate Treatment; Disparate Impact

• Parenthetical with the relevant statute: E.g., (FHA) (N.J. Law Ag. Discr.)

• Brief description of claim: Include adverse action and alleged discriminatory reason. E.g.,

o Refusal to rent b/c applicant was Presbyterian

o Harassment by Evangelical Christian employer of employee who would not participate in employer’s religious activities

o Refusal to Accommodate Orthodox Jewish employee’s request not to work on Sabbath and Holy Days.

• Result: How court disposed of claim. If basis of disposition is not related to subject matter of course, briefly note it here in a parenthetical. Otherwise, summarize the arguments underneath the subheading. E.g.

o Jury verdict for plaintiff affirmed.

o Remanded for new trial.

o Claim denied (statute of limitations).

o Claim denied (failure to file with EEOC)

o Judgment for defendant.

3. Presentation of Arguments: You should try to summarize all of the major arguments the court makes with regard to the claim in question. Look carefully at the general guidelines for summarization laid out above. Where there are extended legal arguments or extended discussions of evidence, try to consolidate as much as you can without losing the flavor of the discussion.

Try to be aware of when the court is discussing what the legal test should be, as opposed to applying a legal test that the parties have conceded or the court takes as given. Try to be aware of the difference between the court acting as fact finder, where it gets to decide whose evidence is stronger and the court ruling on a motion for summary judgment or reviewing a jury verdict, where the court focuses on whether one party’s evidence was sufficient.

I encourage you to use formatting and headings to help make the structure of an argument clear. Let me give you an example of a possible structure for a trial court McDonnell Douglas analysis might look like:

1. Disparate Treatment (Title VII): Failure to Promote b/c Employee was Mormon. Judgment for Defendant

a. McDonnell Douglas Analysis

i) Choice of Prima Facie Case: Court adopted 11th Cir, rule that in religion pf case need to show that decision-maker knew of claimant’s religion, because …

ii) Application of PF Case: Undisputed that elements met except:

• Qualified: Plaintiff’s file said some trouble getting along w/ other employees, so defendant argued unqualified. Court said decision-maker testified problems did not preclude promotion, so court would find element met.

• Decision-maker’s knowledge: Conflicting testimony re whether V.P. who chose to promote non-Mormon with less seniority over plaintiff was aware of his religion. Best evidence of knowledge was … Contrary evidence included … Court found that because plaintiff’s religion was a subject of gossip in the firm, it “seems likely” decision-maker was aware

iii) Asserted Legit Reason: Difficulty getting along with other employees; lack of leadership skills

iv) Evidence of Pretext:

A) Defendant’s evidence in support of asserted reason: ….

B) Plaintiff’s evidence of pretext: …

C) Court said close call, but decides for defendant, because …

b. Court said plaintiff loses anyway b/c insufficient evidence of tangible harm

******

C. Religious Defenses:

1. What to Include: Defenses to any anti-discrimination claim discussed by the court that fall into one of the following categories (if the case does not discuss any of these, skip this section):

a. Statutory Defenses: Defenses found in the relevant anti-discrimination statute that we have categorized as “religious” (and any claims that these defenses themselves are unconstitutional).

b. RFRA Defenses: Claims that enforcing the anti-discrimination statute would violate RFRA, RLUIPA or state-law equivalents.

c. Constitutional Defenses: Claims that enforcing the anti-discrimination statute would violate the Free Exercise Clause, the Establishment Clause or their state constitutional equivalents. Cases discussing the so-called “Ministerial Exception” to employment discrimination statutes belong in this category.

2. Subheadings: Should include the following:

• The type of defense: Statutory, RFRA or Constitutional

• Parenthetical with the relevant authority: E.g., (§3607) (Alaska Free Exercise Clause) (Federal Establishment Clause)

• Brief description of claim: Describe how defense allegedly relates to affirmative claims in case:

o Provision arguably allows defendant as religious organization to discriminate on the basis of religion.

o Landlord argues forcing her to rent to unmarried cohabitants contrary to her religious beliefs violates Alaska Constitution.

o Defendant asserts that applying anti-discrimination law to instructors at school for future clergy violates both Federal Religion Clauses

• Result: How court disposed of claim (granted, rejected, remanded, etc.)

3. Presentation of Arguments: This will be similar to what you do for the affirmative claims, but in most cases, capturing the thread of the argument should be much easier. Remember to distinguish between arguments about what the relevant legal standard should be and those that are applying a legal standard that has been determined earlier in the opinion or conceded by the parties.

D. Concurring/Dissenting Opinions: You can skip this category for trial court opinions or for appellate decisions where there are no separate opinions. Where there are concurring or dissenting opinions. list each one under a separate heading that includes the type of opinion (concurring; dissenting; or both), the author’s name, and the names of any other judges who joined the opinion.

If the only basis for disagreement with the majority regards issues outside the scope of the course, all you should do is briefly indicate what those issues are in a parenthetical at the end of the heading. E.g., “Garnett, J., dissenting, joined by Pierce, J. (standing issues).

Separately list and summarize each area relevant to the course on which the separate opinion either disagrees with the majority opinion or agrees but in some way qualifies it. Begin each of these sections with a subheading referencing the relevant subsection of the majority opinion. E.g., “Accommodations Claim”; “State Law Treatment Claim (Failure to Promote)”; “Free Exercise Defense” , etc.

If the only basis for the disagreement on the topic in question is a technical or procedural issue, briefly indicate what that issue in a parenthetical at the end of the sub heading. If there are one or more substantive disagreements, summarize the arguments in the separate opinion in the same way you would if they were part of the majority, using multiple layers of outlining or bullet points as needed. You can cross-reference ideas or cases discussed in the summary of the majority to save time. E.g., “Would adopt 3d Cir. definition rejected by maj. b/c…” “Would reject Auerbach holding based on different reading of legislative history….”

E. Subsequent History: Should include the following information with the relevant subheadings, if applicable. Otherwise, skip this category.

Direct History:

• Treatment of the case on appeal: Give citation to appellate case, then, as applicable, say “affirming treatment of…” and list issues that were affirmed; followed by “reversing treatment of …” and list issues that were reversed.

• Denial of Appeal or Certiorari. If the US Supreme Court or a state appellate court refused to hear the case, give that information along with the relevant citation.

Subsequent Treatment of Religious Issues: Provide a citation and brief description if, in a different case than the one you are summarizing, :

• Adopted. A higher court in the same jurisdiction subsequently adopts one of the holdings of the case you are summarizing; OR

• Overruled. The same court or a higher court in the same jurisdiction subsequently overrules one of the holdings of the case you are summarizing

Length: Will vary with the case.

Formatting: Follow the outline form provided above and in the samples. Use 12-point font. Individual paragraphs and bullet points should be single-spaced; leave at least 6 points (half a line) between paragraphs and bullets.

Grading: I will reward:

• Careful adherence to instructions.

• Summaries that are clear, concise, accurate and complete.

• Summaries that a reader could understand without having to read the underlying case.

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