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lacrossebrother wrote:I believe that RE and RA are for rule explanation and rule analysis. OP, try to remember that there are 500 different legal writing books that use different acronyms. The one that everyone knows is IRAC, even though that has hundreds of derivatives itself.

The way I see it, non-binding authority can be used in two scenarios (with a few sub-scenarios each).

The first is where you have a case within your jurisdiction that is on-point but unpublished. What you will first do is read that case and see if it cites anything binding within the jurisdiction for the same proposition and that is in fact published. Use that case instead. If it cites a few cases but then makes a leap, you will however want to cite this unpublished case for your proposition, and then in a parenthetical, add "citing [binding case]." Depending on how big the leap is, you can expand the parenthetical to succinctly summarize the logical connection. Alternatively, you may find that your unpublished case citing your intended proposition is dealing with a matter of first impression in your jurisdiction, but cites to a case outside your jurisdiction. Here, you will again cite the unpublished case but then add a parenthetical that says "citing [other published case, outside jx] (interpreting [same federal law])".

The second scenario, which is not all that much different, is just where you have a pretty good published case, that is like 90% on point, and you just want to say there's another case that supports the same idea, perhaps with even closer facts. Here, just cite the published case first, and then include the unpublished case as more support.

Of course, in all of this, your target audience is greatly important. Assuming that you're using "memo" to mean an office memo, not something sent to a judge or opposing counsel, you're going to want to explain that you couldn't find anything directly on point in your jurisdiction. Then you can go ahead and reference the unpublished case.

In terms of keeping track of this case in "RE/RA" --this really depends on what type of "persuasive authority' you have. If you have binding law in your jurisdiction, but are also aware of circuit split, then you'll obviously want to explain the difference in law, how you think the analysis shifts based on which rule is applied, and whether you think there's any chance of the other rule being used.

lacrossebrother wrote:no you definitely don't need to explain the facts of every case you cite, especially those cited parenthetically. What you're trying to do is first say, "this is definitely what the law is." Then you want to give some highlights of how that law has been applied to facts. If the case is light on facts, or substantially the same as another case, it's fine to not reference it.

The binding/persuasive divide is largely a preliminary question about whether to even mention the case. Once you've brought it in, you should still determine how much time to spend with it.

malleus discentium wrote:Why is your professor having you include persuasive authority, and unpublished opinions in particular? It seems peculiar to want persuasive authority for no reason.

Bruce W. 1991 wrote:

malleus discentium wrote:Why is your professor having you include persuasive authority, and unpublished opinions in particular? It seems peculiar to want persuasive authority for no reason.

My professor is crazy. Every single other class has been told not to include unpublished cases. I don't know if anyone else in my class got that comment.

Strange, right? The page limit is killing me.

Also she is "grading on the margin" since our class apparently has a lot of smart kids in it. So it's really coming down to ridiculous details.

Bruce W. 1991 wrote:

Bruce W. 1991 wrote:

malleus discentium wrote:Why is your professor having you include persuasive authority, and unpublished opinions in particular? It seems peculiar to want persuasive authority for no reason.

iamgeorgebush wrote:To reiterate what lacrossebro said, it is not necessary to recount the facts of every case you cite. In fact, doing so would be a mistake. But where you do recount those cases' facts, it is probably best to do so in the "R" section of "IRAC" (or "E" section of "CREAC," I suppose). So you might do something like:

Courts apply strict scrutiny to classifications based on race. Bill v. Ted, 123 F.3d 456, 462 (11th Cir. 2014). Thus, any race-based classification must be narrowly tailored to a compelling government interest. Id. For example, the Second Circuit found unconstitutional a statute forbidding all persons of color from using water fountains, see Jones v. New York, 232 F.3d 872, 888 (2d Cir. 2013) (holding statute violates Equal Protection Clause), while the Ninth Circuit found a requirement that white people refrain from shouting racial epithets on government property was narrowly tailored to the compelling government interest was preventing white folks from being mean, see Jack v. Jill, 123 F.3d 456, 462 (9th Cir. 2014) (holding statute did not violate Equal Protection Clause).

With the caveat that your prof may have particular predilections that vary from what I've described.

BigZuck wrote:You sure you're allowed to seek outside help on your memo? We couldn't at my school.