Using Precedents in Briefs
[1.] When possible, quote instead of paraphrasing. Say, for instance, that you want to argue that the obscenity exception doesn’t cover ordinary vulgarities (even ones that are sometimes labeled “obscenities” in ordinary language). Cohen v. California (the “Fuck the Draft” case) has some great language:
This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.
So quote it directly, e.g.,
To be “obscene,” “expression must be in some significant way, erotic”; mere “vulgar” words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).
A paraphrase, such as
The obscenity exception only covers erotic material, and not just vulgarities.
is less effective; quotations have a verisimilitude and thus a persuasive force (despite readers’ recognition that quotations are sometimes out of context) that mere paraphrases don’t have.
Of course, I say “when possible”; sometimes, there isn’t a really good quote in the original, even though the case really is good for you. And of course quotations of legal holdings also are often not enough; you often need to also analogize the facts of the precedent to yours (for instance, in a few sentences following the Cohen quote and citation). But always look for the good quotations.
Much
Article from Reason.com
