legal writing: march 30 2010 class notes.

briefs. 

current events, such as the bombings in russia, change the framing of the issues... last week, we would have probably written this argument very differently!

issue statement: try to create a framework that tells the court "what's happening? where are we going?" reference the 4th amendment!
picks and frames and describes facts with a careful eye to the persuasive effect

statement of facts:
1. bring in facts about the mass transit system
from reyes' point of view, the scale of the transit system is important to make the point that this program was not effective because it was conducted in the wrong place, etc. 

defined term: is it to our advantage to use them or not?
*** do not use them in the issue statement! it creates clutter

the search officers. for reyes', call them "officers"
dog -- call it a "dog" because it sounds a lot less formal and scientific

avoid statements that are sarcastic (such as "the drug-sniffing dog was a ruse)
avoid any "purple prose" that proses or praises or incorrectly trumps our constitutional rights: the court is aware of these things and is really just interested in what the case law on this matter will permit.

oral argument. you gotta know which case did what.
dog is a limit to the search. since the explosives are so hard to find, the amount of search that you would have to do on everyone that someone sniffed/barked at then
there is case law holding that much longer cases have been upheld.
they may hold you longer at the airport if you pass through a magnometer at the airport
, but the difference is that there are no heightened steps for scrutiny.
we can't question the means used by the government
REYES: the dog is searching continuously, and thereby the officers are using their discretion in who they want to search how. the search is no longer non-discretionary
is this kind of discretion overly intrusive?
why don't we want officers to be able to use discretion? because it is prejudicial and discriminatory
if the dog is exercising discretion, is this the same issue?

why is notice important?
is notice as important as it used to be?

notice:
the notice was not reasonable. use edwards, mc wade,
notice should have been enough to reasonably notify persons who regularly take public transportation that these searches would begin and they would need to make different travel arrangements?
rely on a combination of common sense and case law arguments to support your side: collect the cases that show greater notice, and then be prepared to show cases where there was equal/less notice where notice was deemed to be sufficient.
temporary flyers only: no audio, no big signs, no other methods for disseminating the information.
ambiguity of the search: a conflict to the messages of the program (one says take another method, one says it's voluntary. and so you argue that this is then not sufficient because it's not at all clear)

the court will be troubled with both side's needs. be ready to think through

e.g. in support of propositions of law. for example, factors courts look... "courts look at sufficiency of notice etc. DON'T USE E.G. because what you're communicating is that this is an established point of law and this is a case that cites it.

use e.g. if the message is "courts have done this all the time"
don't use e.g. if it's "this is the law"
if at the beginning: E.g.... if using See, e.g. (lower case)....
See id (lower case after see)