How to write a Legal Memorandum by heatherrhunt

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									How to write a Legal Memorandum

Either before, or after first draft, do an OUTLINE.

Make sure that you have a THEME SENTENCE, and that you state your position
clearly.

The Outline should present, in an orderly way, your arguments. The order should be
affected by your knowledge, and that of your legal readers, of the hierarchy of legal
authority: Constitution, Statute, Rule. Supreme Court, Appellate Court, lower Trial Court.
In direct line or not (e.g. the 9th Circuit Court of Appeals “rules” Oregon, but not Texas,
which is “ruled” by the 5th Circuit).

In law, there are several types of authority, and you should recognize this in your method
of argument.

CONTROLLING AUTHORITY. A statute, constitutional provision, or higher court
ruling, which in on point and says the court MUST do this.

PERSUASIVE AUTHORITY. A ruling, or expert, which is not controlling, but which
carries great weight because of the prestige of the Court or author. For example, an
argument for which you could summon one of the great justices would carry more weight
that your own mere words. Non-legal science or social science, or arguments of
philosophers, fall into these categories. They can be highly persuasive, but are not
“legally” controlling.

BE AWARE OF CONTRADICTORY LEGAL AUTHORITIES. E.g. in the BONG
HITS 4 JESUS case, the Court had two lines of cases to choose from. Your argument
would then focus on WHICH LINE the Court should follow.

Cases at the Supreme Court level often involve new law, or RIGHTS IN CONFLICT. It
is not a question of precedent, but rather of WHICH IS THE BETTER ? Your
argument should help the Court decide why your recommendation is better. You should
persuade them to WANT WHAT YOU WANT, and then HELP THEM FIND A WAY
TO GET THERE. Such cases are not settled by proponents who merely argue the
law, without also arguing what policy should be. WHY ?

								
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