Unit 2: Research and Analysis

2.1- Specific Learning Outcomes

At the end of this unit students are expected to be able to:

a) explain the legal method in relation with effective brief writing and
oral argument;
b) identify legal issue/s that determine/s the outcome of a case;
c) break down relevant provisions into their constitutive elements (of
conditions and consequences);
d) contrast conjunctive, disjunctive, aggregate and balancing structures
of legal provisions;
e) identify the facts and the fulfillment/non-fulfilment of the elements
of a legal provision to resolve a legal issue;
f) use the elements of a legal provision in writing down the structure of
a brief;
g) explain the relationship between syllogism (in logic) and rule-based
legal reasoning;
h) explain the usage of logical and coherent formats (e.g- TREAT and
IRAC) in the organization of legal writing;
i) discuss weight given to legislative history (legislative intent) in legal
analysis;
j) contrast adversarial and objective legal writing;
k) Identify the sources and materials relevant for Jessup memorials.

Expected number of learning hours (Weeks 2 and 3):

• Class hours: Two Hours per week
• Student independent workload: Four Hours per week

Unit 2: Research and Analysis 61

2.2- Unit Introduction
The following brief description of the legal method by Murray and DeSanctis shows
the three categories of functions involved in lawyering, i.e. research, analysis and
communication:

“‘Legal method’ is an expression to describe the fact that the practice of law at all
levels and in all places of employment requires a methodology whereby each
participant in the process must properly research and find the law, interpret the
law, explain the law to others, and, if that is your role in the legal process, to
advocate a certain interpretation of the law that may require the law to be
modified, revoked, or extended. This process fits within the three general terms
of the legal method: research, analysis, and communication. …”1

Although moot courts focus on the third element of lawyering (i.e. communication),
the effectiveness if this (third) element is determined by the two elements (i.e.,
research and analysis) that precede communication. In effect, preparation (which
involves research and analysis) is indispensable before a lawyer writes a brief and
conducts oral arguments.

Students are expected to revise their readings on legal research methods, legal
writing and Appellate Advocacy & Moot Court so that they can have effective
preparation and research before they write the appellate brief, cassation petition,
etc. as required in the moot case. The required readings included in this unit are
thus merely among the readings that students are expected to conduct.

Legal provisions have structure. Setting aside the contextual arrangements of

provisions that stipulate principles, details, exceptions, etc. most legal provisions
can be dissected into their constitutive elements that state the conditions that must
be present or absent for a given legal consequence (such as a claim, sentence, etc.)
to follow. Such analysis is not discussed in detail in this unit (beyond a brief
revision) because earlier courses and case analyses during the preceding semesters
are believed to have given students the opportunity to have mastered the art of
1
Michael D. Murray and Christy H. DeSanctis (2006), Legal Research and Writing (N.Y:
Foundation Press) p. 1

62 Thematic Moot Court: Brief Notes and Materials (September 2009)

analyzing elements of legal provisions and relating these elements to the facts of a
case so that a given legal issue can be resolved. Elements of legal provisions
determine the structure of legal writing because in the course of exposition and
argument regarding the fulfillment or absence of the elements of the legal
provision under given factual circumstances, we are expected to follow the
structure of the legal provision as discussed in Reading 2.2.

A rule, as defined in Reading 1, is “an abstract or general statement of what the

law permits or requires of classes of persons in classes of circumstances.” Moreover, rules
stipulate predictable consequences of given actions. We can thus rephrase and
analyze legal rules by identifying the factual conditions that must exist and the legal
consequences that follow if these conditions exist.

In Reading 1, Schmedemann and Kunz discuss the structure of legal rules and
state techniques that can be used to identify the factual conditions and legal
consequences embodied in a provision. The reading further indicates how we can
connect the elements to each other, which may be “conjunctive, disjunctive,
aggregate, balancing – or a mixture of these.” The reading also analyzes legal
consequences. These concepts are not addressed in detail (beyond a brief revision)
because earlier courses and case analyses during the preceding semesters are
believed to have given students the opportunity to have covered the skill of
analyzing elements and relating them to the facts of a given case so that a legal
issue can be resolved..

The elements of legal provisions determine the structure of legal writing

because in the course of exposition and argument regarding the fulfillment or
absence of the elements of the legal provision under given factual circumstances,
we are expected to follow the content of the legal provision. Reading 2.1 discusses
the need to use the elements as outline in the formulation of the structure of the
brief. Moreover, the Reading briefly highlights rule-based reasoning without
going to other forms of legal reasoning (i.e. analogical reasoning, policy based-
reasoning, etc.).

Unit 2: Research and Analysis 63

 In “analogical reasoning” the case is compared with another case which
involves similar issues, comparable facts and factual circumstances. This can, for
example, be used forward arguments that invoke earlier interpretation in a
decision of the Federal Supreme Court Cassation Division on similar issues.
Analogical reasoning may also take the form of “converge analogical reasoning” 2

which aims at indicating significant differences between cases with a view to

seeking a different relief from a case decided earlier and that has a binding or
persuasive authority. Policy-based reasoning is “most often used to buttress an
argument that already is supported by primary authorities” 3 and shows that the
argument is not only based on the law but also because “the result satisfies public
policies”4 that are important to the area of the law that governs the case.

Reading 2.2 (organization of legal writing) introduces the format known as

TREAT: i.e. Thesis (a lawyer’s position on an issue), Rule, Explanation of rule,
Analysis, and Thesis as conclusion. It also introduces another structural format
IRAC (Issue, Rule, Analysis, and Conclusion). The readings on editing tips
(Reading 2.3) and legislative history (Reading 2.4), research strategy and
determining the adequacy of the research conducted (Reading 2.5) and the
contrast between adversarial and objective legal writing (Reading 2.6) are
intended to be used by students in the course of their research, analysis and brief
write up.
__________

2.3- Tasks: Weeks 2 and 3

a) As a follow-up activity from Task 4 of Week 1, identify the legal
issues of the case.
b) Relate the elements of the relevant provision/s with the facts of the case.
c) Team-up with another student so that you can split the issues between
two of you and start preparation for writing the brief.
__________

2 Michael D. Murray, Ibid, page 10

3 Ibid
4 Ibid

64 Thematic Moot Court: Brief Notes and Materials (September 2009)

2.4- Readings : Weeks 2 and 3
Reading 1: Schmedemann & Kunz, The Structure of Legal Rules
Reading 2: Murray & DeSanctis (Readings 2.1 to 2.6)
- Rule of law and legal reasoning
- Organization of legal writing
- Editing tips
- Legislative history
- Strategies for research and determining when you are finished
- Adversarial legal writing
Reading 3: Diane Penneys Edelman, [Research for Jessup memorials]

__________

Unit 2: Research and Analysis 65

 Reading 1: Schmedemann & Kunz

Deborah A. Schmedemann and Christina L. Kunz (1999) Synthesis: Legal Reading,

Reasoning and Writing (N.Y: Aspen Law & Business) pages 11-18

The Structure of Legal Rules

A. Introduction
The law is formed of rules. A rule is “an abstract or general statement of what the law
permits or requires of classes of persons in classes of circumstances.”5 …
Rules of law … specify predictable legal consequences of particular actions; this
predictability allows people and other legal entities … to plan and order their affairs
in reliance on the law. Rules of law give guidance to disputants and judges as to how
to resolve disputes, so that similarly situated disputants obtain similar outcomes.

B. Stating Rules in If/ Then Form

Even though legal rules may come in many forms, they all can be rephrased in an
If/Then statement as follows:
IF the required factual conditions exist
THEN the specified legal consequences follow.
The IF-clause contains words or phrases describing a class of situations law makers
wished to address. Typically, the IF-clause refers to one or more actors (whether
individuals or legal entities such as [companies]6), one or more actions [acts or
omissions] and circumstances under which the actions occur.
The THEN-clause identifies the legal consequence that follows when the factual
conditions are met. The consequence may be a benefit to or burden on a specified
party and it may be multi-faceted. Often a benefit flows to one party, and a burden is
imposed on another, as when one is ordered to pay monetary damages to the other.
The analytical task of the lawyer is first to discern the IF/THEN statement from the
legal provision, and then determine how the client’s facts fit the factual conditions set
out in the IF-clause. Because lawmakers do not always phrase the law according to
this pattern, often you will need to distill your own IF/THEN statement. …

1. Separating Factual Conditions from Consequences

Stating a rule of law in if-and then-clauses is an important step in legal analysis. If
you do not know what factual conditions are required, you might apply an
inapplicable rule to your facts. Or you might misperceive the legal consequences of a
client’s situation.

5
Steven J. Burton, An Introduction to Law and Legal Reasoning 13 (1985)
6
“ … corporations” in the original

66 Thematic Moot Court: Brief Notes and Materials (September 2009)

 Sometimes the rule as originally stated consists of two clauses. If so, evaluate
whether the factual conditions and legal consequences are in separate clauses; the
words “where” and “when” often mean “if.” If the rule is not so constructed, you will
need to identify each concept as a factual condition (actors, actions, and
circumstances) or legal consequence, and group them accordingly.
For example, consider the following rule:
“If a person not admitted or licensed to practice law in this state renders legal advice
or counsel to another, the unlicensed practitioner generally shall be guilty of
misdemeanor, upon the charging of fee, and punished therefor.”
This rule has tow clauses, suggesting an if/then structure.
IF a person not admitted or licensed to practice law in this state renders legal
advice or counsel to another,
Then the unlicensed practitioner generally shall be guilty of misdemeanor
upon the charging of fee, and punished therefor.
But the then-clause contains a factual condition (charging of a fee), which needs to be
moved to the if-clause. The result is as follows:
IF a person not admitted or licensed to practice law in this state renders legal
advice or counsel to another and charges a fee,
Then the unlicensed practitioner generally shall be guilty of misdemeanor
and punished therefor.
Some legal rules are stated in complex and wordy sentences. Thus, the next step may
be to carefully paraphrase the rule, making sure that you do not remove meaning
from the rule, in an effort to make it easier to work with.”7 A legal dictionary can help
you to determine which words carry legal meaning, what that meaning is, and which
synonyms you can safely use in your paraphrasing. Where the if-clause is long and
cumbersome, you may find the sentence easier to read if you place the then-clause
before the if clause. This rewording may clarify the rule for you.

In the example, you could delete “admitted” or “licensed”; you also could delete
“advice” or “counsel.” The then-clause refers to both guilt and punishment; it also
uses a legalese term (“therefor”). One simpler paraphrasing reads as follows:
IF a person not licensed to practice law in this renders legal advice to another
and charges a fee,
Then the unlicensed practitioner generally commits a misdemeanor.

2. Dealing with Rules Exceptions

Some rules state not only factual conditions necessary for the legal consequence to
follow, but also factual conditions that render the legal consequence inapplicable.
These rules take the following form:
IF some factual conditions exist

7
See generally Richard Wydick, Plain English for Lawyers (4th ed.) 1998

Unit 2: Research and Analysis 67

 THEN the specified legal consequences follow,
UNLESS other factual conditions exist.
The UNLESS-clause contains exceptions to the IF-clause. Fortunately, a rule in
IF/THEN/UNLESS form can be stated in a simpler IF/THEN form in the following
way:
IF some factual conditions exist
and other factual conditions do not exist,
THEN the specified legal consequences follow.
For example, consider the following sample rule and elaboration:
If a person not admitted or licensed to practice law in this state renders legal
advice or counsel to another, the unlicensed practitioner generally shall be guilty
of misdemeanor, upon the charging of fee, and punished therefor. However,
where the legal advice is incidental to another legitimate professional service and
addresses only settled legal points, the unlicensed practitioner shall not be guilty
of misdemeanor.
The second sentence introduces an exception, an idea that could be expressed in the
unless-clause. Note that the exception clarifies why the first sentence includes the
word “generally.” He is a simplified restatement of the more complete rule, using an
extensive if-clause, rather than a second sentence or an unless-clause:
IF a person not licensed to practice law in this state renders legal advice
to another and charges a fee, and the advice is not incidental to
another legitimate service and confined to settled points,
THEN the unlicensed practitioner commits a misdemeanor.

C. Deriving Individual Elements and Consequences

Some factual conditions in IF-clauses are complex, giving rise to more that one
element. An element is a factual condition that can be analyzed as a unit. Most
elements can be stated in a simple clause, and some have sub-elements. Thus, once
you have developed your IF/THEN statement, your next goal is to restate the IF-
clause so that each element (with or without sub-elements) is stated separately. …
For example, the if-clause of the rule developed above can be dissected into the
following elements and sub-elements:
IF (1)
a person is not licensed to practice law in this state, and
(2)
that person renders legal advice to another, and
(3)
that persons charges fee, and
(4)
the advise is not
a) incident to another legitimate service, and
b) confined to settled points.
Then that person commits a misdemeanor
Then-clauses also can be broken into parts if the rule contains more than one legal
consequence. For example, if the rule developed above also indicated that an
injunction could be brought, against the unlicensed practice, the resulting then-clause
would look like this:

68 Thematic Moot Court: Brief Notes and Materials (September 2009)

 Then (1) that person commits a misdemeanor
(2) the unlicensed practice may be enjoined.

D. Analyzing the Rule’s Elements

The elements of a rule must be connected to each other in some discernible way.
Virtually every rule follows one of four patterns – conjunctive, disjunctive, aggregate,
balancing – or is a mixture of these. [The following table]8 summarizes the four
patterns:

Rule structures
Rule Linguistic Applicability of Characteristics
Structure Concept Rule
Conjunctive and must satisfy all - predictable; easy to apply
elements - relative lack of discretion in
application
Disjunctive or need satisfy only one - predictable; easy to apply
of the multiple - relative lack of discretion in
elements application
Aggregate Some but not all depends on weight - vests considerable discretion in
of the listed accorded to judge;
elements various factors - potentially inconsistent
application;
- unpredictable; difficult to apply
Balancing - If [x] depends on weight - vests considerable discretion in
outweighs [y], accorded to each judge;
then … side - potentially inconsistent
- Balance [x] application;
against [y] to - unpredictable; difficult to apply
determine
whether …

Some rules have multiple elements connected by the word “and.” The “and”
connector tells you that all of the elements of the if-clause must exist in order for the
legal consequences of the then-clause to apply. This kind of rule is a conjunctive rule
(“conjunctive” meaning joining or coming together). Conjunctive rules are fairly
simple in structure and relatively predictable in application because courts have
relatively little discretion in applying them. The major rule discussed [above] … is th
conjunctive rule. Note that the consequence applies only when all of the … elements
are met … .
A second type of rule contains multiple elements connected by the word “or.”
The “or” connector tellys you that only one of the alternative elements of the if-clause
must exist in order for the legal consequences of the then-clause to apply. This kind

8
“Exhibit 2.1” in the original

Unit 2: Research and Analysis 69

of rule is the disjunctive rule (“disjunctive” meaning separating or presenting
alternatives). For example, consider the following rule:
IF the parties form a contract
(1) involving fraud in the inducement, or
(2) involving mutual mistake, or
(3) contravening public policy,
Then the contract is unenforceable against the disadvantaged party.
Note that the consequences of unenforceability can occur when only one of the
disjunctive elements is met.
Few rules are completely disjunctive, but many are conjunctive as too the major
elements and disjunctive as to one or more subelements. For example, consider the
following rule:
IF (1) a person is not licensed to practice law in this state, and
(2) that person
a) renders legal advice, or
b) prepares legal documents, or
c) appears in court for another, and
(3) that person charges a fee
Then that person commits a misdemeanor
The second element has disjunctive subelements, and the three elements are
conjunctive. For there to be a misdemeanor, (1) and (3) must occur along with 2(a) or
2(b) or 2(c).
The third and fourth types of rules are similar in that they state factors for the court
to consider; no specific factor is necessarily critical by itself. An aggregate rule requires
a determination whether enough of the suggested factors have been met to justify
applying legal consequences. A balancing rule requires you to balance factors favoring
either outcome in order to determine whether the legal consequences apply. A rule
may be purely aggregate or balancing, or it may be a mix, for example, aggregate and
conjunctive. Aggregate and balancing rules are difficult ot apply. Court may come to
varying holdings on similar facts, so that parties seeking to order their behavior in
reliance on these rules may have a difficult time in trying to predict the rule’s impact
on their conduct. The advantage of these rules is that the courts have discretion to
come to results called for by particular circumstances.
For example consider the following rule, which covers the same topic as the other
examples presented …[earlier]:
IF (1) a person is not licensed to practice law in this state, and
(2) that person engages in significant legal advising, as
determined by:
a) the difficulty of the legal issue,
b) the impact of the advice on the client,
c) the duration of the relationship, and
d) the charging of the fee,
Then that person commits a misdemeanor

70 Thematic Moot Court: Brief Notes and Materials (September 2009)

This rule is aggregate as to element (2). That is factors (2)(a), (b), (c) and (d) are all to
be considered together; the absence or presence of any one is not dispositive. (The
rule’s overall structure is conjunctive.)
As an example of the balancing rule, consider the following example:
IF (1) a person is not licensed to practice law in this state, and
(2) that person renders legal service to another, and
(3)
a) The harm caused by that advice – measured by any cost
to the client, other loss suffered by the client, loss
suffered by third parties, and fraud perpetrated on the
client or others -,
b) outweighs the benefits of the advice – measured by any
advantage received by the client and the person’s
interest in practicing a related profession -
Then that person commits a misdemeanor
This rule is balancing as to element (3). That is, the factors in (3)(a) are to be balanced
against those in (3)(b) to determine whether element (3) is met. (This rule’s overall
structure is conjunctive.)

E. Analyzing the Legal Consequences

Just as if clauses merit careful analysis, so too should you analyze the then-clause
carefully to discern the number and nature of the legal consequence(s). Many legal
rules state a clear legal consequence. In the latter situation, you must discern the
relationship between those consequences. Some rules provide for plural consequences;
they have conjunctive then-clauses. For example, a rule may provide for fines and
imprisonment. …
Other rules provide for alternative consequences; they have disjunctive then-clauses.
For example a rule may provide for a fine or imprisonment. …
Some legal rules identify the ultimate practical consequences of conduct fitting within
the if-clause; that is they directly state the impact on the people involved. An example
of this sort of rule is a rule providing for fine or stating that damages may be
recovered.
IF unauthorized practice of law
Then fine (ultimate practical consequence).

Other rules identify and intermediate legal consequence of conduct fitting within the if-
clause; that is, they affix a legal label to the conduct, which then must be linked to an
additional rule which in turn determines the ultimate practical consequence. …

…Careful attention to these dimensions of the then-clause will permit you to

identify properly the significance of a legal rule for your client’s case. …
… [E and G are omitted.]
__________
Unit 2: Research and Analysis 71
 Reading 2 : Murray & DeSanctis

Michael D. Murray and Christy H. DeSanctis (2006), Legal Research and Writing
(N.Y: Foundation Press)

Reading 2.1- Rule of Law and Legal Reasoning

(Pages 5 - 9)

I. A Rule of Law
A process of law involves the research, analysis, and communication of a rule of law.
[Rule of Law] may be defined as … “a statement of legal principles and requirements that
govern the analysis of the legal issue at hand.” … Legal issie [is] “[a]n individual legal
question implicated by a problem (a set of facts) that needs to be answered in order to render
advice concerning the problem.”
Each legal issue has a rule of law that governs the analysis of the issue. You must
find the correct rule and apply it to the facts of the problem to answer a legal issue
you are analyzing.

II. Finding, breaking down, and outlining a rule of law

A) Sources of the law
You find rules of law … both primary and secondary sources. As an example, if a
client has a question about dog bite liability – his dog bit a Girl Scout after she rang
his door bell and shouted at the dog – you would look for the rule of law that governs
liability of the dog owners for the dog’s bites. The legal issue is: Will my client be
liable for this dog bite injury? …

B) Breaking down a rule of law into its parts

The first thing to do when you find a rule of law is to break it down into its parts. The
elements of a rule are those facts that must be present in the case or the separate
factors or conditions that must be considered and satisfied in order for the rule to be
triggered. If the rule requires three facts to be present, it has three elements. If you are
an advocate in lawsuit seeking to apply the rule in your client’s favor, the elements are the
facts that you have to prove in order for your client to prevail. The opponents of the same
suit must try to disprove (or prove the absence of) one or more elements that must prevail.
In the example above, the rule … can be broken down into three elements: (1) a
dog that is owned by the person from whom the victim seeks recovery, (2) an injury
caused by the dog, and (3) a lack of provocation by the victim.
Some rules are not phrased in a form with one or more required elements. Rules
can be states so as to require the consideration of a number of factors or
considerations, all of which do not have to be present for the rule to be triggered as

72 Thematic Moot Court: Brief Notes and Materials (September 2009)

long as some of the factors are satisfied. Other rules are phrased as a balancing test
wherein a certain number of factors are balanced against other factors to determine
the outcome. You must read the authorities carefully to determine what form the rule
is taking, but no matter what the form of the rule is, it is still possible to break it down
into the separate parts that must be considered (or balanced) in the application of the
rule.
c) Outlining the parts of a rule
The parts of a rule are often listed in outline form. One of the purposes of this is to
create a ready made organizational structure for discussion of the rule in writing. The
three required elements you found for dog bite liability … may be outlined as follows:
1. Ownership;
2. Injury;
3. No provocation.
… If there were a different rule … that incorporated a balancing test, for example,
balancing the amount of the provocation, if any, against the viciousness of the dog’s
attack, you might outline the rule as follows:
1. Ownership;
2. Injury;
3. The severity of the attack was disproportionate to the provocation.
The outline of the rule still can be stated in three parts even though this rule would
work differently than the first rule because of the balancing test in the third part of the
rule. You would consider whether the dog was provoked into attacking but even if
provoked, the victim might still recover if the attack was disproportionately severe
compared to the provocation. … If you decide that the analysis of severity and
provocation is complicated enough to warrant a further breakdown of the rule into
subparts, you might outline the rule as follows:
1. Ownership;
2. Injury;
3. Balancing of:
a) the severity of the attack and
b) and the provocation of the dog.
As will be seen below, the outline you come up with merely should be an aid to help
you with your analysis and explanation of the rule. …

D) Use the outline of parts for structure

… [Y]ou could outline a memorandum about the dog-bite liability in the following
way:
Thesis: The Homeowner will be liable for the injuries to the Girl Scout caused by his
dog.
1. Ownership
Sub-thesis: It is undisputed that the Homeowner owned the dog.
2. Injury

Unit 2: Research and Analysis 73

 Sub-thesis: It is undisputed that the Girl Scout was injured by the dog.
3. No provocation
Sub-thesis: The Girl Scout did not do anything to provoke the dog within the
meaning of this element under the law.

III. Legal Reasoning

Legal reasoning requires a logical and orderly construction. An explanation of legal
principles whether it be an informative memorandum to a client or an advocate’s brief
to the court, generally requires the use of the following type of reasoning:
Rule based reasoning
The answer is X because the authorities establish the rule that governs this
situation, and the rule requires certain facts to be present and these facts are
present, so the application of the rule to the facts produces X result.

This type of reasoning reflects a simple logical syllogism:

The answer is X if there are certain facts present
All the required facts are present
Therefore, the answer is X.
The Converse is also true;
The answer is X if there are certain facts present
Not all of the required facts are present
Therefore, the answer is not X.
Using the dog-bite example, the syllogism would be:
The owner will be liable for his dog’s bit if he owned the dog, the dog caused
the injury to the plaintiff, and the plaintiff did not provoke the dog.
The facts indicate that the owner own owned the dog, the dog caused the
injury to the plaintiff, and the plaintiff did not provoke the dog.
Therefore, the owner will be liable for the dog’s bite.
Rule-based reasoning is the most is the most common form of reasoning in legal
writing because legal analysis basically is the analysis of the applicable legal rules and
how they apply to the situation at hand. The organizational framework for legal
writing… - TREAT– is derived from this type of legal reasoning. TREAT stands for
Thesis, Rule, Explanation of how the rule works in various situations, Application of
the rule to the facts of the present situation, Thesis restated as a conclusion.
…
[Students are expected to revise analogous reasoning, policy reasoning and narrative
reasoning through independent reading.]

__________

74 Thematic Moot Court: Brief Notes and Materials (September 2009)

 Reading 2.2- Organization of Legal Writing
(Pages 95 - 117)

… The format [known as TREAT] discussed herein addresses the discussion of a

single issue – it will be duplicated one or more times in each piece of writing to
address each individual issue you are analyzing. The format is derived from the rule-
based reasoning syllogism and it instructs you to introduce your Thesis on the issue
in the form of a heading, provide the Rule or rules that address the issue, Explain each
rule and instruct the reader about how the rules are to be interpreted and applied,
Apply the rules to your client’s situation, and restate your Thesis as a conclusion.

I. Thesis writing
The TREAT method begins when you have done all of the research and analysis of an
issue and are ready to report your conclusions. Your discussion of an issue will begin
with your position on the issue, called your thesis. The thesis almost always is written
in one sentence, and it states what the issue is and how the issue should come out
based on your analysis of the issue. In legal writing, you will start off your discussion
of the issue by putting your thesis in a heading.
Presenting your thesis on the issue first brings to the front the most important
part of the discussion: your answer to the legal question posed by the issue. Your
readers will appreciate not having to wait for your answer. Putting your thesis on
the issue in a heading that precedes the analysis and discussion of the issue further
highlights this critical information for the benefit of the reader. When you consider
that most of the writing you will do will discuss a number of issues in the same
documents, you can begin to understand that separating and highlighting your
conclusions by use of thesis headings will help even the busiest reader to pick up the
most important parts of your discussion quickly and efficiently.
…
When drafting the discussion of an issue, the thesis is stated as the heading of a
section and the paragraph that follows the heading will state the rule.
…
Many practitioners, judges, or professors would prefer that your repeat or
rephrase your thesis as the first sentence of the text in the section. This practice is
particularly helpful if your thesis heading was a brief recitation of the points that are
covered in the section rather than a more detailed summary of your conclusions.
Restating your thesis as the first sentence of the section will benefit those readers who
routinely skip reading the heading of a document.
…

Unit 2: Research and Analysis 75

 II. Rule section
A. Statement of legal principles and requirements that govern the issue
The rule section follows the thesis, and states the rule or rules that govern the legal
issue. You will recall that a rule of law is a statement of the legal principles and
requirements that govern the analysis of the legal issue at hand. …
… [While formulating the rule (rule synthesis), there are steps that can help you
in] putting together the rule from multiple authorities and performing a “rule
synthesis.”…
• Start with the highest and most recent controlling authority. …
• Reconcile differing statements or phrasings of the rule from controlling
authorities, and attempt to synthesize the material into one coherent statement
of the legal principles that govern the issue. …
• Write the rules first, interpretative rules second, and exceptions to the rule
third.
- Write interpretive sub-rules on elements of the rule in the section or
subsection of the discussion that discusses the element of the rule.
- Write exceptions to the sub-rules after you lay out the sub-rules
themselves.
• Do not write a rule with inherent contradictions.
• Do accept the remote possibility that two competing rules on the same issue
might exist in the same jurisdiction.
- When this happens you may have to analyze the facts under both
competing sets of rules.

Your findings now have to be reported to the rule section. Occasionally, your rule
section might be as small as one paragraph long, but infrequently, you will wind up
with two or more paragraphs if you have several accounts of the rule or more than
one rule to present on the issue. The format of the rule section does not change
whether you are talking about an elemental rule (a rule with required elements) or a
rule with factors that must be evaluated or balanced.

B. Interpretive rules
The rule section also will present interpretive rules from primary and secondary
authorities. Interpretive rules are actual statements from legal authorities that instruct
lawyers and judges how to interpret and apply the rule on the issue at hand. They are
not elements or factors of the rule, and they are not the same as the principles of
interpretation and application … . Instead, these are individual statements phrased in
rule language that you will lift from the authorities that have discussed and applied
the rule.

76 Thematic Moot Court: Brief Notes and Materials (September 2009)

 … These interpretive rules belong in the same section as the actual statement of
the rule and its elements or factors, but you should state interpretive rules in one or
more paragraphs after you have laid out the elements of the actual rule. …

III. Explanation section

A. Purpose of the explanation section
In the explanation section, you will use some or all of the legal authorities you have
found in your research to explain the rule and to show how the rule operates in
various situations. … You will spell out the legal standards that govern the issue in
the rule section. A law-trained reader can review the rules you lay out in the rule
section and make an educated guess as to how these rules should work in actual
situations, but this only will be a guess. Your job as the author of a piece of legal
writing is to confirm or rebut that guess by explaining how the rules work in actual
situations, which in most instances … .
… The goal is to illustrate how the rule is to be interpreted and applied based on
how the authorities have applied it in actual concrete factual settings, and on how
commentators have interpreted the rule.
…
The explanation section also may include discussion of secondary authorities –
scholarly works that interpret or explain the law. These authorities cannot control the
outcome of your case, but they can be used to help persuade the reader that you are
on the right track with your thesis.
… It is important to support every statement about the law by referring to
authority, even if you are talking about public policy.
…

IV. Application section

Application is the section where you apply the rule to your client’s facts and show
how the rule will work in your client’s situation. …
In the application section, you must make the connection between your client’s
situation and the situations in the authorities you are relying on in support of your
thesis. …
…

V. Thesis restated as conclusion

You should finish your discussion of an issue by restating your thesis as a conclusion.
This is not the most critical part of the discussion, but we find that it makes a
difference to the reader of legal writing to have one sentence at the end that brings
closure to the discussion.

Unit 2: Research and Analysis 77

 The conclusion you make can be one sentence, and it can come at the end of the
last paragraph of your application section. As an example, the thesis as conclusion …
might be:

Therefore, the defendant will be required to compensate plaintiff for the

injuries in this case.

We do not intend to imply that the thesis restated as conclusion has to be a

throwaway. It often is a single sentence, simply there to say this section is completed.
But you can spend more time with a conclusion and use it to advance your argument
one more step, or to make a smooth transition to the next topic. You only are limited
by your own creativity.

VI. Other structural formats

You may encounter in your studies a legal writing method of organization known as
IRAC, pronounced “eye-rack,” which stands for Issue – Rule – Application –
Conclusion.
IRAC terminology Treat terminology
Issue Identifies the issue to the Thesis Identifies the issue to reader
reader and states your conclusion
on the issue
Rule States the legal principles Rule States the legal principles
that govern the issue. that govern the issue
A good IRAC writer also Explanation Explains and illustrates how
will explain and illustrate the rule works in actual
how the rule works in actual situations.
situations.
Application Applies the rule to the facts Application Applies the rule to the facts
of the case at hand. of the case at hand.
Conclusion States your conclusion on Thesis Restates your conclusion on
the issue restated as the issue
conclusion

IRAC is taught in many legal writing courses, and there is nothing inherently wrong
with the method as long as you are clear that the “Issue” item would state your
position on the issue, which we call your thesis, and the “Rule” item should not only
state the rules but explain them, and provide principles of how the rules should work
in various situations based on a synthesis of earlier authorities. Some legal writing
authors change the IRAC designation to IREAC for this reason. 9 If you do all of the
above using IRAC or IREAC, you are essentially doing the same thing as we are
telling you to do in the TREAT format. We simply believe it is easier to remember to
do all those things if they have their own reference letters.

9
Another version of the format is CRAC, pronounced “see-rack” … which stands for Conclusion – Rule –
Application – Conclusion. …

78 Thematic Moot Court: Brief Notes and Materials (September 2009)

VII. Identifying Multiple Issues
We have been discussing the treatment of an individual issue within your client’s
case. The dog bite example with which we have been working boils down to one
issue – whether the plaintiff provoked the dog. We mentioned in the application
section the other two elements, but only so far as to point out that they are not in
dispute, so there is no need to have a separate discussion of each element. We did not
ignore them, because you must include in your writing some discussion of each
required element or factor of the rule that applies to the case. But a single sentence is
all the treatment these elements required.
In real life, this is an unusual position in which to be. More often than not, you
will have more than one issue to write about. In the real world, a “client” … will
come to your office with a problem, and you will have to identify what issues are
implicated by the facts of the situation the client is in. Each problem that reaches your
desk probably will raise more that one issue, and each issue will have at least one rule
that applies to it. Each rule that applies can and often will have multiple elements or
factors, each of which can present additional issues. An element or factor of a rule can
have a sub-rule that has elements or factors, some of which will require separate
treatment. It can get fairly complicated, but the TREAT format is flexible enough to
accommodate that much complexity.

In order to determine the number of issues you have to treat, consider:

[a) the separate legal questions you have to answer;, and
b) the elements or factors of the rules that are at issue.]

A. What are the separate legal questions you have to answer?

Most problems your client will bring to you will present more than one legal question
to answer. If the client literally asks two questions, or one question that will involve
the discussion of two unrelated legal issues – such as what separate causes of action
might the plaintiff bring against the client based on the facts – then each question
presents a major issue in your discussion. In an outline, the answers (theses) to these
questions will appear as the major headings because you will state a thesis concerning
each major issue as the heading of the discussion on that issue.
In the single issue discussion above, the major issue was, “Is the dog owner liable
for plaintiff’s injuries?” which was translated into the thesis heading, “The dog owner
will be liable for plaintiff’s dog bite injuries.” If there were two or more different
claims that the plaintiff might bring against your client, your writing would have two
or more major issues, and major theses on these issues. …

A. Which elements or factors of the rules and sub-rules of the rules are at issue?
A separate TREAT discussion is required to address each separate legal question,
meaning each part of the problem that is in dispute and thus “at issue.” If the rule
that governs the issue at hand has one basic requirement, and thus one element, it
may be handled in a single discussion of Thesis, Rule, Explanation, Application and

Unit 2: Research and Analysis 79

Thesis as conclusion. If the rule has multiple elements or factors, but only one is in
dispute, you also may discuss the entire rule in one TREAT discussion, as in our dog
bit example above, where provocation was the only element of the rule that was in
dispute. But if the rule itself presents multiple legal questions to answer, it will
require more than one TREAT discussion. If the separate questions that must be
answered are all based on elements or sub-parts of a single rule, we will refer to the
treatments of those questions as sub-TREAT s.
For example, if there was a serious question whether or not the defendant
“owned” the [dog] … within the meaning of the law … you would have a separate
issue that would have to be answered in a separate sub-TREAT discussion, which
would then be followed by the sub-TREAT discussion that addresses the issue of
whether the plaintiff provoked the dog or not.
We emphasize that you must cover every element or factor of a rule in your
discussion, but if the element or factor is established without question in your case
because you are told that by person assigning the project or because your opponent
specifically admits it, the discussion of that element or factor does not require a full-
blown TREAT format. A thesis or sub-thesis heading and one sentence can convey
the required information.

1. Defendant is the owner of the dog.

Defendant conceded that he is the owner of the dog that injured the plaintiff on
August 12, 2005.

When multiple elements of a rule are in dispute and present a separate issue for sub-
treatment, you should research … authorities discussing that one element and show
how that element works in various situations. That is how a sub-TREAT discussion is
developed. In addition, a single element of a rule can present multiple issues for
discussion because the element is to be applied, and the sub-rule itself may have
multiple elements, each of which might be in dispute and require an answer. Since
the questions suggested by the elements or sub-parts of a sub-rule are all based on the
same sub-rule, we will refer to the treatments of these questions as sub-sub-TREATs.
The same process occurs with a multi-factor rule that has at least one factor that has
multiple sub-parts all of which raise separate issues to address.

…
__________

80 Thematic Moot Court: Brief Notes and Materials (September 2009)

 Reading 2.3- Editing Tips
(Pages 181 - 184)

A. Write early, rewrite often

The mantra of great authors is that there is no such thing as good writing, only good
rewriting. Editing and rewriting takes time, and you cannot do a good job if you do
not leave yourself the time. The mere act pf writing forces you to get organized in
your thinking and your argument. Whenever you sit down and actually write a draft
of the work, the drafting process will reveal defects, gaps, quirks, and problems in
your research or analysis. It may change your mind about your legal conclusions.
Therfore, leave time for this to occur. The Sunday before the Monday the paper is due
is too late.
Rewrites have a similar function to get the argument in order, correct mistakes,
fill in the gaps, beef up the weak areas, and prune the bushy areas. There is a law of
diminishing returns at play here; the eight rewrite will not fix as many errors as the
third, but given that each rewrite can improve the work, it is worth doing as many
rewrites as you can.

B. Employ more than one editing and proofreading technique

There is more than one way to edit and proofread your own work. Simply reading
through your work from start to finish is one way, but you probably have observed
that you still miss typographical errors and other spelling, citation, and grammatical
errors using this method. The problem is that your brain becomes accustomed to the
passages you have written and skips ahead saving time but not actually reading each
word and sentence. In order to avoid your brain’s built in capacity to skim text, you
should try reading your work … word for word and then sentence by sentence. […
You may] create a paper mask that only allows you to see a few words of text a time,
and then use it to read your paper slowly, word for word. Denying your brain the
right to familiarize words in familiar sequence helps to slow it down so that you can
look harder at the actual text.
When you are editing and rewriting for general flow and readability … [use a
technique that] forces your brain to slow down [and controls the brain’s tendency to
skip errors].

C to F (0mitted)
…

G. Editing the discussion section

1. Side issues, interesting questions

We assume you will not be spending a lot of time (and space) writing about topics
that are not part of the argument. Do not do it. No one will get brownie points for
Unit 2: Research and Analysis 81
pointing out the most side issues that may affect the case as a whole, rather than
resolving the research topic at hand. Remember: the presumption is that you should
answer any legal question that you raise. …

2. Redundancy is bad
Repeating yourself is a vice. It does not pay the same thing two or three times. …
Lawyers are prone to redundancy. Many must think, if I say it twice, that is twice
and good. This idea may exist because repetition is a good technique in oral advocacy
– but save it for that context. …
We are not saying that you should not make your point clearly, or that you
shouldn’t explain yourself fully even if that takes two or three sentence on one point.
You should explain the same point or the same conclusion in a different way if there
is something to be revealed through that second exposition. Clarification of legal
principles is no easy task; don’t make it harder by trying to adhere to some rule of no
repetitions ever. Repeating things two or three times is not good if the second and
third times do not shed new light on the principles you are exploring.

3. Too many authorities

It does not pay to cite dozens of authorities if you cannot synthesize them properly or
discuss any of them in enough detail to make your point and explain your
conclusions. Do not drown out the best controlling and persuasive authorities in a sea
of “also runs.” …
__________

82 Thematic Moot Court: Brief Notes and Materials (September 2009)

 Reading 2.4- Legislative History
(Pages 307 - 310)

I. What is legislative history?

Legislative history is a term used to designate the documents and materials that contain
the historical and background information generated while a bill or other legislative
action is on its way to becoming a law. It includes draft versions of the bill, redrafts,
testimony at various hearings on the bill, committee reports, studies, legislative floor
debates, executive messages, and other materials generated in this process.

II. For what purpose is legislative history used?

Legislative history is used to monitor the progress of a bill or other action to determine its
status (prior to enactment into law), and to determine “legislative intent” – trying to
figure out what the legislature meant when they wrote or rewrote the bill (and eventually
the law) a certain way. This is used to further argue an interpretation of the law or to
attempt to resolve ambiguities created by the words of a statute.
As a bill is amended and rewritten during the legislative process, each version is
reprinted. The theory behind the usefulness of legislative history is that these progressive
additions, deletions, and alterations in the language are direct evidence of deliberate
thinking on the part of the legislators who contributed to the creation of the law. …
The reports generated by committees and conferences, and the floor debates where
questions about the statute and explanations of the meaning of the terms are discussed,
are also taken to be evidence of legislative intent. …

III. For what purpose is legislative history used?

Legislative history is not a source of the law and it is never to be considered primary
controlling authority. The terms of the statute itself are the only primary, potentially
controlling legal authority regarding the law created by statute.
However, legislative history is not simply commentary. It is not simply secondary
persuasive authority such as treatise or law review, that discusses the meaning of a
statute. It is evidence of legislative intent prior to the fact of enactment that goes beyond
the realm of interpretations by third-parties after the fact. Thus, in most instances, it
carries more persuasive weight than even the commentary and interpretation of a great
scholar.
As the goal of statutory interpretation always is to determine the meaning of the
statutory text, oftentimes evidence of the authors of that text is relevant and helpful to
finding the meaning of difficult or ambiguous terms. In a situation where one particular
piece of legislative history directly answers a question or resolves an ambiguity in the
absence of other pieces of legislative history that produce contrary inferences, then the use
of the uncontroverted legislative history to discern the meaning of the text seems
imminently prudent and appropriate.

Unit 2: Research and Analysis 83

 However, there is a basic tension created by an attempt to use legislative history in
litigation or other legal fora: there is a long-standing and strongly supported school of
thought that believes that statutes should be interpreted on the basis of the terms of the
statute alone. … Ambiguities in statutory language are to be resolved textually (the
logical meaning of the terms used in the statute) and contextually (the logical meaning of
the statute as a whole and its meaning in the context of the existing law on the topic), not
by resorting to evidence of the drafters’ intent. But advocates are not always pleased
with the way the terms of a statute are likely to be read and applied. Their clients may be
on the short end of that equation. So, it is common for good advocates to search for
support for a beneficial interpretation amidst the legislative history. …

IV. What documents and materials make up legislative history?

…
As a bill progresses through the legislative process, it may generate several different kinds
of documents. Note well that not every bill generates the same number and type of
legislative history documents – it all depends on how complicated or troublesome the
legislation was or how it was handled by the tow chambers prior to enactment.
After a bill is introduced and numbered, it is assigned to a committee. Committees
produce four different types of documents: Committee Prints [statistical data and
background information], Committee Documents [facts and information regarding the
subject matter of the bill], Hearings [interrogative hearings on important issues which are
not the subject of pending legislation, but which may lead to legislation in the future], and
Reports.
…
Committee Reports are written by the members of the committee and contain
recommendations on why the bill should be passed. The report usually contains the text
of the bill, an analysis of its content and meaning, and the committee’s rationale for its
recommendations. There may also be a minority statement if there was a disagreement
among the committee members. Of all the documents to come out of the committee, the
Committee Report generally is considered to be the most important in establishing
legislative intent, because it contains the legislator’s own words and contemporaneous
construction of the meaning of the legislation and it is intended to guide the thinking of
the entire legislature on the meaning of the legislation.

…[Other reports have been omitted]

__________

84 Thematic Moot Court: Brief Notes and Materials (September 2009)

 Reading 2.5- Strategies for Research and Determining When
You are Finished
(Pages 349 - 354)
…
I. Initial assessment of the problem
Your first job is to assess the problem so as to identify the issues – the specific legal
questions that need to be answered – and then to determine if additional facts are
needed from the client or other sources, and then put together the plan of the action to
find the legal sources necessary to answer the questions.

A. What is the issue?

You may have an idea about which areas of the law are implicated by the problem
(e.g. – this sounds like a fraud case, or this is probably a copyright case), but you will
not necessarily know enough about these areas and their fundamental background
principles, claims, defenses, and policies to be able to determine the specific legal
questions you will need to answer. You may not even know the general area of the
law implicated by the problem. Assuming the assigning attorney or the client cannot
shed any light on this, you will need to do background research into the law.

B. Background research into the area of law

When you have a background resource, you will read it to answer the following
questions:
• What are the major issues in this area of the law, both old and new?
• What are the kinds of claims, injuries, damages, causes of action, or defenses
that are brought or claimed or asserted in this area?
• What constitutional issues are implicated in this area?
• Are there statutes, rules or administrative regulations that typically are found
in this area?
The information that you find in a dictionary or encyclopedia may help you get your
feet wet, but you may exhaust what they have to say on your matter without
determining the actual issues that are implicated by your facts. If you cannot do this,
return to the background material. You might also discover the need for additional
factual information.

C. Background research into the facts

If you determine that your boss or the client did not give you enough factual
information to answer the issues intelligently, go back and ask for more information.
Assuming the well is dry, or the professor who assigned the work will not tell you

Unit 2: Research and Analysis 85

anything else, you will perform your research with what you already know, or turn to
alternative sources of factual information.

D. Background information of the “how to do it” kind

The background information you need may be simply “how to do it” information in
this area of the law. “How to” sources include your colleagues and other attorneys (in
real life, not law school), practice guides and CLE [Continuing Legal Education]
materials, the actual agency or court involved, or pleading and practice form books.

II. Planning the research

After formulating the questions you must answer, you must come up with a plan for
finding the sources to answer each issue. You should divide your plan into categories
– how are you going to find:
• Primary controlling authorities
• Primary persuasive authorities
• Secondary authorities
• Sources for checking and validating your authorities.
It is advisable actually to write up a plan of action and follow it. Write down the
sources you will use and the order in which you will use them. Leave space in your
plan outline to make notes on what you checked. Keep a good record of every item
(every individual authority) that you find. …
A well prepared record of the findings also can be used as a skeleton outline of
your written work product, which you later can flesh out and turn into proper
TREATment of the issues. For example, as you research, you probably will learn that
there are X number of required elements for the issue, and 2 or 3 exceptions to the
rule, and X number of defenses to the rule. Writing them down in your notes on what
you are finding will create a skeleton outline of the Rule section of your written work
product. As you find authorities that provide the sub-rules, factors, policies,
considerations, or simply provide explanation or clarification of any of the items in
the outline, you can fill in information in the proper section of the TREATment of the
main issue and elements as you proceed along in your research. Then, when you
stop you will have a fairly complete skeleton outline of the actual work product you
will draft. …

III. Performing the research

A. What determines the scope of the research
You cannot always adopt a “leave no stone unturned” plan in which you will try to
completely exhaust every possible source for the law. Sometimes the deadline set by
your boss or the court is too short for that; other times, the client simply cannot and
will not afford that level of research. So time and money are important factors in
actual practice.

86 Thematic Moot Court: Brief Notes and Materials (September 2009)

 Another factor is your knowledge of the area of the law. If you know the area
well, you will have to look for authorities in as many places, and you can zero in on
the sources you know are likely to lead you directly to the answer. When you are
familiar with the area, you will feel more confident when you think you have found
the right answer and can stop. The converse is true when you are less familiar with
the area of the law – you will need to look to more sources to find authorities and may
not be as confident that you are done with the research.

B. Sample research plans

There is not perfect research plan, but some plans are better than others. If you have
endless amounts of time and no money issues to constrain you, you could spend
weeks and often months researching almost any issue of law. The more time you
spend, the more likely is that you will find, review, and analyze every important
source on the law in the area. But no one – no law student, no law professor, and
certainly no practitioner – has unlimited time for research. Accordingly, the advice
below is directed toward helping you put together a practical research plan, not a
perfect plan. The sample plan here will guide you through the steps of your research
and refer you to the sources you should consult along the way. By following an
appropriate plan for the time frame (or money constraints) of your situation, you will
allow yourself the greatest opportunity to find all of the relevant authorities and not
miss something important.
Research is broader than writing. Every plan … below will ask you to look at the
greater number of authorities than you will wind up writing about in your office
memorandum or court brief. You must read broadly and check and recheck your
findings in a variety of ways in order to determine what the law is; than you present it
in writing using the most authoritative, most telling and most indicative authorities.
…
… When a Statute, Rule or Administrative Regulation is involved …:
a) When a statute or rule or regulation applies, you must start with the statute, rule
or regulation in you research. Read what it says.
b) …
c) Research the administrative regulations, the sub-regulations and administrative
rules that implement the regulations, and “official” and unofficial interpretations
by administrative and executive entities charged with implementing the
regulation (the agency itself, the attorney general, a regulatory body or
commission).
d) If there appear to be divergent opinions in the authorities you are reading about
the meaning or application of certain provisions of the statute or regulation, then
research the legislative history of the statute or drafting and ratification history of
the rule or regulations.
e) Then move on to cases, treatises, restatements, … law reviews …

Unit 2: Research and Analysis 87

IV. How do you know when you are finished?
Follow this rule of thumb for determining when you are finished with your research:
(1) If you have found several … controlling authorities that agree with each other as
to the legal issue at hand …;
(2) If you also found several good persuasive authorities that support your
controlling authorities, including a treatise or other secondary authority that
supports your findings;
(3) If you have reconciled or distinguished all contrary controlling authorities and any
important persuasive authorities; and
(4) If you do not have any nagging questions that you know should be answered
before you move on to writing.
Then you are finished.
This is only rule of thumb. It is not going to hold true in every research problem
you will encounter in law school or in actual practice. But having some guidelines is
better than having none.
One guideline for applying the rule of thumb is to look to see if the sources you
are finding all start to agree with each other and all wind up citing each other, and
you no longer are finding new authorities in your searches. If your on-line searches
fail to turn up new authorities and your searches in secondary authorities are
referring you to sources that you already have read, then you should be finished. You
still will have to read and analyze the authorities you found, but you will not need to
keep searching for more authorities to add to your collection. By the same token, if
each search turns up new and unfamiliar authorities, you most likely are not finished.
…
__________

88 Thematic Moot Court: Brief Notes and Materials (September 2009)

 2.6- Adversarial Legal Writing
(Pages 361 – 366)

I. Differences between and objective and adversarial legal writing

Objectivity is required in order to render appropriate legal advice to your colleagues
and clients. The office memorandum as the paradigm of objective informative legal
writing is designed to be read by people who are working for the client and are
presumed to be friendly to the client or who at least owe a duty to the client to keep
its confidence. Office memoranda must reflect a critical appraisal of the client’s
situation and not just engage in cheerleading to pump up the team. An internal office
memorandum must be informative of the good and the bad facts of the case and
present the blemishes along with the beauty marks of the client’s legal position.
Adversarial legal writing is different. It is not the opposite of objective writing –
it is an honest and truthful presentation of the merits of the client’s case that is crafted
so that it supports the client’s position … in the best possible way. A good advocate
does not abandon her objectivity concerning the blemishes and beauty marks of her
client’s legal position when she is evaluating her client’s case. But the work product
of an advocate emphasizes the strong points and does its best to mitigate the effects of
bad points. Adversarial writing takes sides and advocates for one outcome – the
outcome favoring the client.
Adversarial legal writing does not engage in fraud or obfuscation about the facts
and the law concerning the matter – nothing can be gained from lying and cheating
except defeat and disbarment. The briefs and memoranda that you will file with the
court and serve on your opponents will not lie about the facts and misstate the law.
Rather, you must use your skill to present the facts and argue the law in a way that
best favors your client. The facts that support your client will be front and center, and
negative facts will be explained and defused. The applicable law will not be distorted
or outright misstated by you, but to the extent that statutes, cases and other
authorities allow you to emphasize and interpret the law in a way that better supports
your client’s position, it is your job as an advocate to make the most of these
opportunities.
Lawyers wear several hats in contested matters. They are an officer of the court,
bound to uphold the law and promote justice. Attorneys who lie and cheat about the
facts and the law certainly violate their duty. Lawyers must also be counselors,
seeking the best pathway to the best outcome for the client, whether that means
cooperation and concession or more aggressive action. Attorneys whose motto is to
fight every case to the bitter end violate their obligations. Lastly, lawyers must be
advocates who play a role in the adversarial legal system … by promoting the
interests of their client in every stage of the matter in order to allow the court to reach
a just result. Proper adversarial legal writing is one of your duties as an advocate.
…

Unit 2: Research and Analysis 89

 III. Strategies and Goals for zealous representation in adversarial context
A. … Write clearly and concisely
… Judges everywhere believe that they have more than enough cases to work on and
too much material to read and digest in any given case. They will not tolerate
complex, cumbersome, redundant, and overly verbose writing in briefs and
memoranda to the court. … [I]magine the attitude of the typical judge with hundreds
more cases pending on his docket when he receives your complex, prolix work. A
judge is not going to suffer through this kind of work for very long.
… But if you draft and edit your work so that a busy judge can capture the best
parts of your entire position and argument on a given motion or appeal in fifteen
minutes or less, you will have served your client and the court very well.
There are several ways to accomplish this in writing:
• Front load your best material. Write an introduction to your brief that tells the
court enough facts, law and argument that you can convince the judge that your
client should prevail, all in roughly half a page of text;
• Use the statement of facts to advocate your position;
• Use meaningful … thesis headings throughout the discussion or argument section;
• Draft the discussion or argument action in as clear, concise, and direct a manner as
possible;
• Use the conclusion solely to request your relief, not to summarize or rehash your
arguments and not to make a new point in support of your case.
…
B. Know your audience and write with your audience in mind
This is a general principle of legal writing, but reaching this goal is even more difficult
in a litigation context. With objective writing, you will tend to know your immediate
audience very well, whether they be your colleagues or your clients, because you will
have worked with them for some time, or at least you will have access to people who
know them well and can tell you pointers on how to draft your work to better satisfy
them. With litigation, you often are writing to a judge before whom you have never
appeared prior to this case, and with whom on one in your office has had much
experience. At the appellate level, depending on the shuffle of panels and
assignments of cases in your jurisdiction, you may never get two of the same judges
on a panel more than two or three times in your career. All of this leads to
uncertainty in knowing exactly who your audience is.
Simply living with the uncertainty as inevitable kismet [fate] is not good enough.
You should make (efforts to get information from those) who have tried any number
of cases (even one) before the judge. …

C. Concede facts and give up arguments when it will benefit your client to do so …
Let us disabuse you of the notion that we think lawyers should never concede facts or
abandon arguments. Not so. The value of concession depends on the state of the
dispute and the nature of the dispute. Early in a contested matter, it may not benefit

90 Thematic Moot Court: Brief Notes and Materials (September 2009)

your client to reveal all the facts your client knows to your opponents until you
discover what your opponents know and what their version of the facts is. On the
other hand, early in the dispute may be a good time to reveal or stipulate to certain
facts because it will save your client the time and energy in responding to discovery of
this facts. …
In litigation, give up a legal argument if it advances your cause with the court.
Do not brief an argument if the chances that it will make you look foolish and
obstinate are greater than the chances that any legal decision maker will agree with
the argument and rule in your favor. Your best argument will look better if it is not
seen in the vicinity of two other terrible arguments. Judges never make their
decisions based on the number of arguments you raised.
On the other hand do not arbitrarily limit the number of arguments you will
make. Do not get stuck on one complicated argument, putting all your eggs in one
basket, when you can raise one or two less complicated arguments in addition to the
complex arguments. …

D. Know the facts and the law, and know your options
You cannot help your client if you do not learn the facts of your client’s case. In order
to know which facts are likely to be important, you have to know the law. Naturally,
knowing the law and the facts is required if you are going to give advice and
represent your client in any way or shape or form.
A doctor would not prescribe medicine without listening to the patient’s
symptoms first and determining what illnesses might be present and what side-effects
might affect the patient if they take a certain medication. Similarly, a lawyer who
does not know the facts and the law sooner or later will take an action that is directly
against her client’s interests.
Knowing the facts and the law also will enable you to know your options. If you
do not know your options you will miss something important. If you do not know
the facts or law, you could inadvertently close off one or more of your options and
eliminate otherwise perfectly acceptable forms of relief for your client.
One of the main problems with lawyers is not that they do not know the law, but
that they are too busy to be prepared. The do not take the time to figure out what
they are doing or should be doing in a case. They lose sight of the big picture or never
see it in the first place, and chase leads down one rabbit trail of facts or law after
another without taking the time to think the case through, forming decisions on what
needs to be done; planning the tactics and strategies that will get the job done, and
then doing it.
The law is not one of the disciplines where 90% of the battle is just showing up.
You must be prepared for the setting in which you are about to engage you lawyering
skills. …
__________

Unit 2: Research and Analysis 91

 Reading 3: Research for Jessup Memorials

Diane Penneys Edelman “It Began at Brooklyn: Expanding boundaries for First
Year Law Students by Internationalizing the Legal Writing Curriculum” Brooklyn
Journal of International Law, 27 Brook. J. Int'l L. 415 (2002) pp. 415- 442

I. Introduction
…
Specifically, Section II of this Article will introduce the sources of international law
with which students … must become familiar. Section III describes how to select
students, develop course materials and provide basic and supplemental instruction
for the persuasive writing or moot court. ...

II. The Sources of International Law

… Rather than using a domestic appellate court, the international law moot court
problem is set before a panel of the International Court of Justice (“ICJ”), which, in the
real world, sits in The Hague, The Netherlands. [FN11]
Consequently, the greatest challenge to a law student who elects to participate in
an international law moot court program - whether by enrolling in a legal writing
course or participating in the Philip C. Jessup International Law Moot Court
Competition (“Jessup”) as an upper class student - is mastery of the sources of
international law that are applied by the ICJ. Unlike domestic law, where the student
must grapple with the constitution-statute-case law hierarchy, the student of
international law must become comfortable with treaties as well as the more
amorphous concepts of “customary international law” and “general principles of
law.” [FN12] These are the primary sources of international law, just as constitutions,
statutes and cases are the primary sources of both federal and state domestic law.
When it comes to secondary means for determining rules of domestic law, students in
a traditional moot court class look to law reviews, treatises and digests. In contrast,
the international law moot court student looks to both scholarly works and case law,
both international and domestic, as secondary means for determining rules of
international law. [FN13] Thus, it is crucial for the international law moot court
professor to spend sufficient time at the beginning of the semester making sure that
students have a comfortable grasp of the following basic concepts before starting their
research and writing project.
The sources of international law are defined in Article 38(1) of the Statute of the
International Court of Justice (“ICJ Statute”), which lists the sources applied by the ICJ
in deciding matters before the court. [FN14] Although the ICJ Statute does not
specifically address whether the sources have a hierarchic value as listed, scholars and
the ICJ itself apply the sources in descending order. [FN15] Students should be made
aware that in international law there are both primary and secondary sources of law,
just as there are in domestic law. The primary sources include international
conventions, [FN16] international custom and the “general principles of law

92 Thematic Moot Court: Brief Notes and Materials (September 2009)

recognized by civilized nations.” [FN17] The secondary means of determining
international law include the “judicial decisions and the teachings of the most highly
qualified publicists of the various nations.” [FN18] It is also important to remind
students that the ICJ does not follow the concept of stare decisis as do domestic
courts, so that the ICJ does not regard its own prior case law as binding precedent.
[FN19]

A. Conventions
International conventions or treaties [FN20] are the sources students most easily
comprehend, as students have heard of treaties before, and they are most like a
traditional domestic legal device - a contract. [FN21] Just as a contract codifies the
agreement of parties, a treaty memorializes the agreement between two or more
states. [FN22] International conventions bind both the states party to them, and those
states that are not parties, but which nonetheless accept their provisions as law.
[FN23] Parties to a convention must abide by the terms of that instrument based on
the principle of pacta sunt servanda, namely, that “(e)very treaty in force is binding
upon the parties to it and must be performed by them in good faith.” [FN24]
According to Article 38(1) of the ICJ Statute, conventions may be “general or
particular,” meaning that they can be bilateral or multilateral, specific or
comprehensive. [FN25] And, although a convention provides the strongest evidence
of international law, a convention which seems to contradict or modify established
international custom should be interpreted so as to best conform to established
custom, rather than deviate from it, unless the convention was intended to change the
existing custom. [FN26] International conventions can also be evidence of established
international custom. [FN27]
B. Customary International Law
International custom, or customary international law, is one of the most widely cited,
and yet most elusive concepts found in international law. International custom must
be distinguished from what is thought to be a state's “customary behavior.” [FN28]
For a state's practice to become binding customary international law, the state must
engage in the particular practice because it considers itself legally obligated to do so,
rather than out of compassion, convenience or friendship. This sense of legal
obligation to referred to as opinio juris sive necessitatis or simply, opinio juris. [FN29]
Generally, a state must also engage in a particular practice for a significant period of
time for that practice to be considered binding customary international law. [FN30]
Once a practice has become customary, and thus a recognized form of international
law, all states that have not objected to the custom are bound by it. [FN31]
In addition to those practices recognized by states as customary international law,
treaties between various states can also be evidence of international custom. [FN32]
Treaties often codify rules that states believe have become international custom
through constant and uniform usage over a long period of time. [FN33] Evidence of
international custom can thus be found by analyzing international conventions and
other legal instruments, and determining how these instruments are interpreted and
implemented by the various states. [FN34]

Unit 2: Research and Analysis 93

 C. General Principles of Law
The final primary source of international law is the “general principles of law
recognized by civilized nations.” [FN35] Nowadays, the phrase “recognized by
civilized nations” has virtually become obsolete, in recognition of the valuable
contributions to international law by countries that may not, at some earlier time in
history, have been considered “civilized” nations. [FN36] The general principles of
law is yet another difficult source for students to grasp because of the lack of a clear
scholarly definition. In general, a legal principle becomes a binding general principle
of law if states independently apply similar legal principles in a domestic setting.
[FN37] The theory is that if states independently apply these similar legal principles in
settling domestic matters, they impliedly consent to be bound by those legal
principles on an international level. [FN38] For example, one may argue that if many
countries initially permit circumstantial evidence to be admitted in judicial
proceedings, this practice has been accepted as a general principle of international
law. General principles are generally used as “gap filler” when there is no applicable
treaty or customary law on a given issue. [FN39] This source of law is analogous to a
United States state court using judicial decisions from other states because those
decisions are not binding as precedent on the court, but have some persuasive value.
[FN40] The best documentation of the general principles of international law are
scholarly writings, treatises and legal encyclopedias. [FN41]

D. Secondary Means of Determining International Law: Judicial Decisions

and Teachings of the “Most Highly Qualified Publicists”
The final means for determining international law are the “judicial decisions and the
teachings of the most highly qualified publicists of the various nations.” [FN42] Just
what is meant by secondary means, and how does this differ from conventions,
custom and general principles, which are considered sources of international law?
In essence, the categorization of judicial decisions and scholarly writings as
secondary means indicates that these two types of materials do not, in and of
themselves, constitute sources of international law. [FN43] Rather, we can use
decisions and scholarly writings to determine whether concepts of customary
international law or general principles exist. [FN44] For example, suppose a student
wishes to argue that a treaty requires a country to act in a certain manner. The student
may use the treaty text and negotiating texts to develop his or her argument.
Suppose, however, that the student wishes to argue that an international custom
or a general principle requires a country to act a certain way. Because there is no
single source that lists all of the customary international concepts or general
principles, must the student (or international lawyer) research the practice of every
nation or examine the legal systems of numerous nations? This would be a daunting,
if not impossible task. Instead, however, the student could look to the secondary
means - judicial and scholarly opinions - as evidence of either customary or general
principles of international law. The international law moot court student, in fact, will
often cite judicial and scholarly materials to develop and support a customary or
general principles argument.

94 Thematic Moot Court: Brief Notes and Materials (September 2009)

 The international law moot court student must become comfortable with another
way in which judicial decisions perform a different function in the international legal
arena than they do in the American legal system. Although American courts
acknowledge the precedential and persuasive value of court decisions, the ICJ does
not follow the principle of stare decisis. [FN45] The U.S. Supreme Court described the
role of judges and scholars in creating international law in The Paquete Habana:
(We turn) to the customs and usages of civilized nations; and, as evidence of these,
to the works of jurists and commentators, who by years of labor, research and
experience, have made themselves peculiarly well acquainted with the subjects of
which they treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but for trustworthy
evidence of what the law really is. [FN46]
Thus, the ICJ's function is to apply the law, not to make new law, and the works of
publicists are a means of ascertaining the applicable law. [FN47] Researchers will use
publicists' works and judicial decisions to interpret the various treaties and customs,
and therefore define and argue points of relevant international law. [FN48]
In short, because the sources of international law are usually unfamiliar to the
first-year law student - who may at best be only somewhat confronted with American
legal hierarchy - it is crucial to develop a curriculum that will introduce students to
the basics of these concepts without overwhelming them with the complexities of
international law that they would encounter in an upper level introductory public
international law course.

III. Institution and Administration of an Academic International Law Moot

Court Program
A. The Student Selection Process
…
… Selection of students for an optional international law moot court program can also
work well at a school that operates, in whole or in part, on an adjunct system. In that
situation, the school may hire one or more adjuncts who teach only during the
semester when moot court is required. [FN53] …

B. Course Materials
As mentioned previously, the field of international law is distinct from domestic law
in its hierarchy of law, research materials and court procedures. Before those students
enrolled in international law moot court can begin to research and draft writing
assignments effectively, they must become familiar with the basic concepts and
structures of international law. Toward that end, the professor should compile an
international law supplement to the students' traditional legal writing test. [FN54] A
useful supplement might include materials on practicing international law, structures
of international courts and organizations and basic readings on the sources of
international law. Additionally, the supplement would contain a list of web resources
[fn55] AND A VARIETY of research and writing exercises.

Unit 2: Research and Analysis 95

 Development of moot court problems is, of course, a crucial portion of designing a
successful international law moot court course. One does not have to start from
scratch, however. Since several law schools have instituted international law moot
court programs, the opportunity to share problems makes problem development
relatively painless. In addition, once a class of first-year moot court students
graduates, a problem may be modified and “recycled.” Once a professor develops a
successful problem, he or she may also modify it as the law changes over the years,
i.e., if a relevant treaty is terminated or enters into force, or a new area of law (such as
cyberlaw) emerges.
On a cautionary note, the international law moot court professor should avoid
using or modifying previous Jessup or other official international law moot court
competition problems in class. Not only may this raise copyright issues, but several of
these competitions publish their best briefs on-line or in print, thus subverting the
professor's ability to have the students research their problems independently and
tempting students to plagiarize. [FN56]

C. Supplemental Instruction
Mastering the basics of international law also requires additional class sessions.
Students will discover that these sessions are valuable because they lay the
informational foundation upon which they will build their working knowledge of
international legal concepts and structures.
At the outset of the term, class discussions should focus on the nature of
international law, including its sources, principle concepts and governing bodies.
First, the professor should explain the sources of international law discussed above.
Attention should focus on the hierarchical structure of the sources of international law
and the weight placed on these sources by international institutions such as the ICJ.
[FN57] Second, the professor should introduce students to the guiding principles of
international law, such as jus cogens, [FN58] opinio juris, [FN59] and pacta sunt
servanda. [FN60] Because these and other important international principles are
unknown to new students of international law, they generally require a thorough
explanation. Finally, it is important for students to understand the role played by
international institutions such as the United Nations and the ICJ, two of the primary
mechanisms for international dispute resolution. Once students begin to understand
how these principles and institutions interact in the international arena, their research
will progress much more effectively. There are numerous texts that can serve as a
basis for discussing these and other international law concepts. [FN61]
Students exploring the field of international law for the first time are generally
unfamiliar with the wide variety of resources available to the international law
researcher. For most second-semester law students, familiarity with library resources
is limited to domestic sources, such as case reporters, statutes, encyclopedias and
digests. Although students may have been given a glimpse of international research
materials during their first semester of law school, international research resources
remain largely undiscovered to first-year students.

96 Thematic Moot Court: Brief Notes and Materials (September 2009)

 Before students delve into the research phase of their writing assignments, their
legal writing professors should provide them with a general introduction to the
variety of international law sources available both in print and electronically. Texts on
legal research can provide students with the background necessary to begin a fruitful
research process, [FN62] and on-line resources abound. [FN63] After assigning these
informational texts, professors should schedule a library tour so that the students can
see first-hand the sources discussed in the texts. …
… On a practical level, the tour acquaints students with the physical location of
the resources and other tools, such as computerized databases, necessary to access the
information. During the tour, a law librarian should briefly explain the type of
information contained within each resource and how the students can effectively
access the information. For general background information on international law, the
law librarian should point out texts such as international treatises, encyclopedias and
law journal articles. [FN64] Of particular importance to the students during the
research phase of their writing assignments will be the international treaty collections,
such as the United Nations Treaty Series, the League of Nations Treaty Series, the
Consolidated Treaty Series and the Treaties and Other International Agreements
Series. The law librarian should point out these and other valuable resources such as
ICJ decisions, UN documents, and other organizational charters throughout the tour,
and may introduce students to electronic resources as well.
The school's Jessup International Law Moot Court Team and any other
international law moot court teams are other valuable resources that can provide
students with additional background on the concepts and mechanics of international
law. Mandatory attendance at an international law moot court team practice round,
considered invaluable by Villanova students, [FN65] will assist students as they begin
to formulate arguments for their writing assignment. Witnessing a practice round
brings into focus elusive concepts such as customary international law and general
principles of international law, which are often initially difficult for students to grasp.
Actually hearing a participant explain customary international law to a judge during a
practice round, for example, reinforces the information digested by students as they
review introductory materials, begin their research and take part in classroom
exercises. Finally, the team's practice round tends to quell feelings of anxiety
experienced by students as they progress toward preparing for their own oral
arguments. The practice introduces the students to the format of oral arguments and
the types of questions they may be asked.

D. Classroom Exercises
While learning how to research international law, international law moot court
students must also prepare to face the challenge of writing a formal, persuasive brief,
which in international lingo is called a “ memorial.” [FN66] Persuasive writing may
come more naturally to some students than the rigid objectivity required in traditional
first-semester legal writing assignments. On the other hand, many students are
unfamiliar with the subtleties of persuasive writing and may therefore need some
instruction. Regardless of their background, classroom exercises on the techniques of
writing persuasive briefs are a useful tool to sharpen the skills of all students.

Unit 2: Research and Analysis 97

 Legal writing professors should design exercises that teach students the basics of
constructing persuasive arguments. Again, the type and content of the exercises is
limited only by the professor's imagination. In a typical exercise, the professor might
provide the students with a packet of information that describes a hypothetical
international legal dispute, a list of relevant international legal principles and sample
memorial abstracts relating to the dispute. The professor should then divide the
students into small collaboration groups, with each group representing a different
country in the dispute, to help the students learn to identify international legal issues
and the key facts and arguments that relate to them. The groups may meet outside of
class to discuss how the facts and international principles can be effectively molded
into persuasive arguments for their side of the dispute. Students should come to the
next class prepared to discuss their group's findings.
Questions for the students to consider might include: what facts do we emphasize
to make our arguments more persuasive; what facts should we de-emphasize; and
what international principles support our country's position? In addition, the students
can draft different parts of their memorials - facts, summary of argument, point
headings and the like - before completing a full draft of their memorials.
In-class discussion of the arguments formulated during collaborative, out-of-class
sessions can develop into a lively debate as the students set forth persuasive
arguments to further the interests of their assigned country. Discussion of the issues
can focus on how the different groups chose to shape the facts in favor of their
countries.

E. Citation Methods
An additional challenge confronted by students who choose to study international
law is how to cite international legal materials properly. To prepare a thorough
memorial, students typically will have to cite treaties, UN documents, decisions of
international courts and tribunals and law review articles. Generally, during their first
semester of law school, students learn only the basic rules of proper citation for
domestic materials such as cases, statutes and law reviews. …[T]here is a large body
of international materials available to researchers, many with unfamiliar and often
complicated citations. Spending some time reviewing the most commonly cited
international materials, such as treaties, constitutions, statutes and UN documents
aids students in their research and improves the accuracy of their citations. Citation
forms for these types of materials can be found in both The ALWD Citation Manual:
A Professional System of Citation [FN67] and The Bluebook: A Uniform System of
Citation (commonly known as the “Bluebook”). [FN68] Either of these reference texts
may be used to develop sets of legal citation problems to teach students how to cite
previously unfamiliar international research materials. [FN69]
__________
IV. & V. [Omitted]

[Footnotes omitted]

98 Thematic Moot Court: Brief Notes and Materials (September 2009)

 Review Exercises

Exercise 1
• The following excerpt is taken from Goldblatt’s Introduction to Legal Method in
Ethiopia: 10
Relate the theme of the excerpt with the use of legislative intent in arguments:
a) where literal reading seems to be inconsistent with legislative intent;
b) where there are two or more possibilities of interpreting a given operative word in a
legal provision.
… Before you can handle a rule of law efficiently you must understand it fully.
That involves understanding two basic things: the language of the rule and its
function.
… You must, of course, know the dictionary definition of every word in every
statute you ever are called upon to handle. But … the crucial words of a statute
sometimes called the ‘operative words’ may require careful analysis before you
can properly apply them.
Besides understanding the meaning of the words of a statute, it is vital to
understand what the statute does, that is, what kind of rule it establishes, what the
legislative or other promulgating authority intended to accomplish by it. We may
call this the function of the statute.

Exercise 2
Read the following summary of a compromis and identify the issues that can
be raised by the applicant state.

Synopsis of the Compromis for the 2009 Philip C. Jessup International

Law Moot Court Competition
Source: Synopsis (International Law Students Association, ILSA)
Attempt to identify issues before you read the brief statements about issues (inbox) at the
end of the fact summary.

The dispute at the heart of [the 2009] Jessup Problem involves two states – Alicanto,
whose population is composed of two large ethnic groups in tension with one another
(the Dasu and Zavaabi); and Ravisia, a former colonial power that establishes a military
operation in Alicanto, without the consent of the Alicantan government, in order to
prevent what Ravisia characterizes as an impending campaign of ethnic cleansing.

10 A. Goldblatt (1966), Introduction to the Legal Method in Ethiopia (Addis Ababa: HSIU,
Unpublished) § 20-22.

Unit 2: Research and Analysis 99

The population of Alicanto is 30% Dasu and 50% Zavaabi. Both groups espouse the
Talonnic religion – the Dasu subscribe to a moderate version of the faith, and the
Zavaabi to a more orthodox version. The Dasu enjoy a higher standard of living and
have historically occupied more influence in government and business.
In the mid 90’s, a Zavaabi political movement gained momentum. Called the Guardians,
the group aimed to revive the orthodox Talonnic faith and incorporate its tenets into
Alicantan law.
In December 2005, the Security Council of the United Nations established a
peacekeeping mission, called UNMORPH, in Alicanto to maintain a ceasefire agreement
between Alicanto and its neighbor New Bennu. The two countries had been involved in
a conflict that arose concerning rampant smuggling of illegal arms and drug activity
over their shared border. Ravisia was the largest contributor of troops to UNMORPH.
Frustrated with the way the Dasu-led government handled the conflict with New Bennu,
new elections were called. The results installed a Zavaabi-led government, which put in
place Prime Minister Simurg, the leader of the orthodox Zavaabi movement.
During the period of UNMORPH’s 2.5 year operation, the conduct of the mission’s
peacekeeping troops came under criticism by human rights observers, who discovered a
pattern of sexual exploitation by the troops against local young girls. UNMORPH also
came under fire by Alicantan government officials for broadcasting radio programming
targeted at educating women and children about health, education and human rights.
Religious leaders protested, claiming the broadcasts to be offensive and inconsistent with
orthodox teachings of the Talonnic faith.
By the end of 2007, the objectives of UNMORPH had been met, and in February 2008, the
Security Council passed Resolution 1650, calling for the gradual draw down and
termination of UNMORPH by 31 July 2008.
Although the conflict with New Bennu had quelled during this time, tensions between
the Dasu and Zavaabi within Alicanto increased. The Zavaabi-led government rolled out
plans to incorporate orthodox Tallonic beliefs into Alicantan law – laws which favored
Zavaabi over Dasu. Initially, members of the Dasu group reacted by protesting. Sporadic
riots turned into significant violence and NGOs began reporting ethnically charged
violence. Later on, many Dasu reacted by fleeing the country.
On July 3, 2008, the Security Council adopted Resolution 6620, noting its concern
about the escalating violence in Alicanto, and urging the government of Alicanto to
“to take immediate steps to improve the humanitarian situation.”
On July 7, 2008, Prime Minister Simurg was assassinated, allegedly by a Dasu-man. The
assassination was followed by renewed violence between the groups. Six Dasu villages
were burned, thousands were killed, tens of thousands of Dasu fled the country, and a
weapons cache was discovered.
Ravisia called upon the Security Council to either (1) renew and expand the UNMORPH
mandate; or (2) to authorize a collective humanitarian intervention led by Ravisia. The
Secretary-General reported to the Security Council that a campaign of systematic
violence was impending. The Secretary-General reported that his conclusions were
supported by classified raw intelligence that Ravisia delivered to the Secretary-General.

100 Thematic Moot Court: Brief Notes and Materials (September 2009)
Alicanto demanded that it have access to the intelligence, but the Secretary-General
refused to hand it over, citing the promise he made to Ravisia to keep it confidential.
After long debate, resolutions in support of Ravisia’s recommended action failed.
On July 31, 2008, UNMORPH terminated, but the Ravisian peacekeeping troops
remained. The next morning, 6000 additional Ravisian troops arrived in Alicanto and the
Ravisian Army declared the beginning of “Operation Provide Shelter.” Alicanto protested
their presence but did not launch any operation to remove OPS troops. OPS was involved
in a number of operations in Alicanto, and effectively extinguished a number of uprisings.
In August 21, the Alicantan government convicted and sentenced to death a man named
Piccardo Donati for the assassination of Prime Minister Simurg after a trial in absentia.
Later, it was discovered that Donati had been granted asylum by Ravisian forces in
Alicanto. The Alicantan government demanded that Donati be handed over and that
Ravisian forces leave immediately.
Alicanto informed Ravisia of its intention to pursue legal action before the International
Court of Justice. Alicanto and Ravisia later agreed to submit the dispute to the ICJ by
special agreement.

The 2009 Jessup] Compromis focuses on the legal issues that arise when members of the
international community, either collectively through the United Nations, or individually
through unilateral action, intervene in the affairs of a state on humanitarian grounds.
Among the many legal issues addressed in this Compromis are the following: prohibition
against the use of force; responsibility to protect; role of the Security Council in
authorizing humanitarian interventions; fact finding power of the International Court of
Justice; role of the ICJ in matters taken up by the Security Council; restrictions to be
applied to humanitarian interventions; international standards of due process; death
penalty under international law; and political asylum.

Unit 2: Research and Analysis 101