-
case brief writing
在英美法的学习中可谓是最常
用的基本功了,由于面对的
经常是洋洋洒洒的万言判决书,
如何
抓住
case
的重点,
比如案件事实<
/p>
(
facts
)
、
争议点
(issues)
、法院认定
(holding)
、推理过程或者判决理由(
reasoning
),
一个简明扼要的
case
brief
就非常重要了。那怎如何写
呢?总结起来差不多有
这样几种:
1Title (e.g. Brown v. Board of
Education of Topeka)
2 Facts: Summarize the facts of the
case. List only the essential facts
that you need to understand the holding
and reasoning of the case.
3 Procedure: Most of the cases that
you'll read in law school will be
appellate
court
decisions.
In
this
section,
you
want
to
list
what
happened
in
the
lower
court(s).
Do
not
go
into
too
much
detail.
One
or
two
sentences
are sufficient for this section.
4
Issue(s):
What
is/are
the
question(s)
facing
the
court?
Form
the
issue
questions in a way that they can be
answered by yes or no.
5
Holding: How did the court answer the issue
question(s)? YES/NO?
6
Reasoning:
This
is
the
most
important
section
of
your
case
brief.
Here
you
want
to
list
the
reasoning
of
the
majority
in
reaching
its
decision.
You can actually
be quite detailed in this section. List what the
law
was before this case was decided
and how the law has changed after this
decision.
Law
professors
love
to
discuss
the
reasoning
of
a
case
in
class
discussions.
7
Concurring/dissenting
opinions
(不是必须的,要看案件有没有附随意见)
一、
FPIHRC
< br>写法(如下所述)
Title
(e.g. Roe v. Wade)
Citation
(e.g. 410 U.S. 113 (1973))
Facts
:
Summarize
the
facts
of
the
case.
List
only
the
essential
facts
that
you need to understand
the holding and reasoning of the case.
Procedure
: Most
of the cases that you'll read in law school will
be
appellate
court
decisions.
In
this
section,
you
want
to
list
what
happened
in
the
lower
court(s).
Do
not
go
into
too
much
detail.
One
or
two
sentences
are sufficient for this section.
Issue(s):
What is/are the
question(s) facing the court? Form the issue
questions in a way that they can be
answered by yes or no.
Holding
: How did the court
answer the issue question(s)? YES/NO?
Reasoning
: This
is the most important section of your case brief.
Here
you
want to list the
reasoning of
the
majority in
reaching its decision.
You
can
actually
be
quite
detailed
in
this
section.
List
what
the
law
was
before
this case was decided and how the law has changed
after this
decision.
Law
professors
love
to
discuss
the
reasoning
of
a
case
in
class
discussions.
Concurring/dissenting
opinions
: Even though I read the
concurring and
dissenting opinions, I
rarely brief them. However, there are some cases
(e.g. Youngstown Sheet & Tube Co. v.
Sawyer) where the concurring or
dissenting opinions end up becoming
more important than the majority's
opinions. In such cases,
you
should add
this section to
your case brief.
二、
FIHRQ
写法(注意:下面第一条的
citation
是每个
case
brief
都必须要有
的,另外还应当包含
the case's
title
)
I.
CITATION
From what
specific source is the case taken?
For
example, was the case reported in the U.S. Supreme
Court Reports?
II. THE FACTS
A. Material
·
What materially happened?
·
Was there, for example, a collision on the high
seas? A dispute
over territory?
B. Legal
·
From what legal
circumstances did the case originate?
·
Did two states agree, for example, to
submit their dispute to an
arbitral
tribunal? Was an opinion sought from the I.C.J.?
III. LEGAL
ISSUES
A. Specific
·
What specific legal questions does this case
raise?
·
For
example,
does
the
proximity
of
Ruritania
to
Zombie
Island
give
Ruritania
a
legal
basis
for
making
a
territorial
claim
for
Zombie
Island?
B. General
·
What more general legal questions does this case
raise?
·
For
example,
is
a
legitimate
basis
under
international
law for making
a territorial claim for an island?
IV. THE
HOLDING
·
What
decision was
made? That
is, in
support
of which side did
the
court hold?
·
For
example,
in
Missouri
v.
Holland,
did
the
court
decide
in
favor
of
V. LEGAL RATIONALE
·
What legal reasoning
informed the court's decision?
·
What rules of law, for example, did it
apply?
·
How did it interpret legal principles, documents?
·
How did it construe the
facts?
VI.
QUESTIONS
·
What
existing
legal
questions,
if
any,
are
unresolved
by
this
case?
·
What new questions, if any, does it
raise?
三、
FIHR
写法
四、
FIRAC
写法