Home » Holding: what did the judge/judges/justices actually decide and what

Holding: what did the judge/judges/justices actually decide and what

 NSTRUCTIONS

Write a casenote or legislative study analyzing either an important state or federal legal case (reported, with a judicial opinion of some kind and not a jury verdict) or an important federal or state law (statute ). In other words, analyze a case or a statute. The statute may be something pending (not yet passed by Congress, a legislature, a local council, etc.) as long as it is important and meets the other criteria of the assignment. Most students opt for doing a case.

Rules: The subject matter must apply the concepts in Weeks 4-5: Intellectual Property as it relates to communications/media technology or “Political” Speech related to mass media.

Please note: Most people have chosen a copyright or trademark case; there is a nice list to chose from, from the cases/statutes that you looked up in Week 4 Content. It is recommend that you do a Week 4 copyright or trademark case. However, you have the option, as stated, of doing something from Week 5. There are cases in Week 5 Content for you to find; any one of them would be acceptable for this assignment, or you can research a case or statute you’ve found on your own. To avoid a loss in points, the casenote must pertain to the subject matter of weeks 4 or 5, and the format must adhere to the format described below; therefore, you should look at the format carefully.

Since patent law is outside the scope of this course, you should avoid it unless it involves a fight between two media companies, etc. (i.e. Google fighting Facebook, AT&T fighting Verizon, etc. over some new technology). It will be up to you to convey in English the technical jargon, etc. You can do a patent case if you can handle it.

As stated above, if you choose a statute/law, it can be pending legislation; otherwise, the statue/law should be currently “on the books.”

For cases, try to keep them no more than 6-8 years old. If you choose a US Supreme Court (SCOTUS) case, it shouldn’t be more than 20 years old and must be current precedent.

Note: most copyright and trademark cases are federal, so it should be easy to find one. The Media Law Prof blog is be very helpful as a secondary source. Use Findlaw or Lexis Nexis Academic, Google Scholar if you are having issues finding a case or statute.

The overall flavor: why is this case or law so significant or important?

1. Requirements: No less than two (2) pages single spaced, Times New Roman 12 pt font, subheadings, footnote space (if you’re using a legal writing format) are excluded from the page count. If you include a works cited (as some of you do, that does not count in the page total).

Regardless of the format you use, you must demonstrate proper legal citation form for cases, laws and law review/other legal articles, and proper direct quote and paraphrasing for any other type of source you use.

You must use/cite at least two (2) outside sources other than cases, statutes, articles, etc. the judicial opinion (including any dissent or concurrence) references in the case itself, or in any legislative history of the statute (if your subject is a law). Put those in footnotes or if you aren’t comfortable with that, use MLA form for in-text citation and attach a Works Cited page. However, any cases or statutes must be cited properly with in-text citations, and if citing to or quoting from a judge’s opinion or dissent from the case or statute you are examining, you must have proper page references. If you do not know what a dissent or concurring opinion is yet, go back to week 1 and look it up in the Modules, etc.

2. Format: One of two ways can be used for CA 2. Both require the same amount of work, except one or the other might be simpler to conceptualize.

Title (try to be creative!),then your name and date at top of the page

Format I:

Introduction
Facts
Legal Background
Holding if case, (Textual Purpose if statute)
Analysis
Conclusion

Here’s a breakdown of the sections…

Title: Include a creative title and the name of the case or statute.

Introduction: Give a summary of the subject case or statute and it’s main idea; then, in a separate paragraph, add the main idea or thesis (expanded in the V. Analysis) about what the case or law means, why it’s good, bad, doesn’t follow older precedents, is a game changer, etc. Always begin the Introduction with the sentence “In [case name with full cite] the [court] [did or established something],” or with a law, start with “The [full name and cite of the of the law, act, ordinance etc.] the [Congress? state legislature? etc.] [did, addressed, provided, what?]

Facts: Include the factual background, how the case arose, the players, and the problems or why someone felt is necessary to pass a law.

Legal Background: List what other cases or laws that addressed (or should have been addressed) this problem or issue. What did other courts decide or other laws (state, federal,etc. if you are doing a statute) do or not do? In other words, what was the legal vibe and context before and while your case or law was decided or enacted?

Holding: What did the judge/judges/justices actually decide and what was their reasoning (or what did the law/the state legislators, the Congress, etc. actually say)? And, if you are doing a law, what was the purpose of the law as stated in a preamble or first lines of the text? Give a summary of any dissenting or concurring opinions of other judges (if a case and there’s a minority opinion)

Analysis: Interpret the law/statute or case decision as good, bad, or helpful in light of the Legal Background and other factors. Again, this is analysis not your personal rant (and since you aren’t legal scholars yet, you don’t have the standing or expertise to rant anyway!) Did the holding address the problem or does it look like it made things worse or unclear? Did it follow older cases (precedent) or distinguish them or even trash (overrule) them? Did their action make sense? Use real analysis—support the thesis statement from the Introduction. If there’s a dissent, how does it measure up to the majority opinion (if a case). If it is a law, why did the legislator, etc. vote against the law (if you can find through research)? Did it break new ground or totally reverse old precedent?

Conclusion: Restate your thesis statement/position in a sentence or two. Add a suggestion on what might happen in the future, or a sentence on any lingering problems.

Format II:

Abstract: Provide a short summary of what you have determined are the core issues in the case and your approach to the argument to follow (about one page or less).

Background: Present a detailed discussion of the history and background of the body of laws and major case precedents that form the legal foundation for addressing the questions and issues at the core of the case (about 3 to 4 pages).

Argument: Select one side of the case and present a detailed, compelling argument for that side, with support from established statutory and case law via citations (about 2 to 4 pages).

Citations: Include ample legal citations to demonstrate the breadth of your research in support of your argument. Citation format should be standard legal style, which you can see in both the legal research tutorial and in your textbook. Citations can be included either within the body of your paper or as endnotes.

Resources

http://ezproxy.umgc.edu/login?url=http://search.eb…

https://content.umuc.edu/file/5eaa91c6-a908-4271-9…

http://ezproxy.umgc.edu/login?url=http://search.eb…

Intellectual Property

In addition to the resources, you may find these Caselaw and statutes or Constitutional provisions helpful for Week 4:

Digital Millennium Copyright Act, Pub. L. 105-30

Copyright Act of 1976, 17 USC section 101 et seq. (especially section 107-�fair use�)

Grand Upright Music v. Warner Brothers 780 F. Supp. 182 (SDNY 1991)

NYTimes v. Roxbury Data Interface 434 F. Supp. 217 (SDNY 1977)

Golan v. Holder, 132 S.Ct. 873 (2012)

Clean Flicks of Colorado LLC v. Soderbergh, 433 F. Supp. 2d 1236 (D. Colo. 2006)

Faulkner v. National Geographic, 409 F. 3rd 26 (2d Cir., 2005)

Perfect 10 v. Amazon.com, 487 F.3d 701 (9th Cir., 2007)

WPIX, et al. v. ivi, Inc., 691 F.3d 275 (2d Cir., 2012) (pre-Aereo)

Aereo — yes THE Aereo case from this year (see week 1)

HarperCollins Publishers LLC v. Gawker, 721 F. Supp 2d 303 (SDNY 2010)

Morris Communications v. PGA Golf Tour, 364 F.3d 1288 (11th Cir., 2004)

Four Navy SEALS v. Associated Press, 413 F. Supp. 2d 1136 (S.D. Cal 2005)

WEEK 5 resources ( if you want to use these instead)

In addition to the resources, you may find these Caselaw and statutes or Constitutional provisions helpful for Week 5:

FCC Codification of the Commission’s Political Programming Policies, 9 F.C.C.R. 651 (1994)

47 U.S.C. 315(a) (FCC)

McConnell v FEC 540 US 93 (2005)

Citizens United v. FEC

Virginia Pharmacy v Virginia Citizens Consumer Council 425 US 748

Pacific Gas & Electric v Public Utilities Commission 475 US 1 (1986)

Cyber Promotions v AOL 948 F.Supp 436 (EDPa 1996)

McCutcheon v FEC 133 S.Ct. 1242 (2013)

Burwell v Hobby Lobby 134 S.Ct. 2751 (2014)

Central Hudson Gas & Electric v Public Service Commission 447 US 557 (1980)

44 Liquormart v Rhode Island 547 US 484 (1996)

Somini Sengupta, “F.T.C. Settles Privacy Issue at Facebook,” N.Y. Times, Nov. 29, 2011.

Surveillance in “War on Terror”:
Clapper v. Amnesty International USA et al., 133 S.Ct. 1138 (2013). (“Clapper I”)

Obama approves sweeping reforms to NSA phone surveillance

American Civil Liberties Union v. Clapper, No. 14-42-cv (2d Cir. May 7, 2015). (“Clapper II”, official F.3d cite coming)

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