Constitutional Law Writing Segment Assignment – Spring 2019 Page 1 of 6 To: From: Date: Re:…

Constitutional Law
Writing Segment Assignment – Spring 2019 Page 1 of 6

To:
From:
Date:
Re:

Constitutional Law Students – Spring 2019
Professor Jacobson
February 18, 2019
Constitutional Law Writing Segment Assignment

The writing segment assignment this semester consists of writing a
bench memorandum for Judge Lee Yeakel of the U.S. District Court for the
Western District of Texas in the case American Stewards of Liberty v. U.S.
Fish & Wildlife Serv., Civil Action No. 15-cv-1174-LY (W.D. Tex.). Federal
court judges have busy dockets and do not have time to review all the
briefing, records, and relevant case law in every case. For this reason, the
judges employ law clerks who prepare bench memoranda to help them
understand and decide the issues in the case. A bench memorandum, or
“bench memo,” prepares the judge for oral argument on a motion, for
deciding how the case ought to come out, and may serve as the basis for
the judge’s written opinion in the case. The bench memo “communicates
an objective analysis of the facts and law in a case and recommends a
course of action.”1 More specifically, “bench memos must clearly and
accurately describe the facts of the case, the procedural posture, the
applicable law, the parties’ arguments, and the clerk’s independent
analysis of the issues.”2
I. Assignment Resources
The case in which you will provide the bench memo is a real case that
is pending in the U.S. District Court for the Western District of Texas. The
case involves a challenge to the U.S. Fish and Wildlife Service’s designation
of the Bone Cave Harvestman (“BCH”), a small, eyeless, subterranean
spider, as an endangered species pursuant to the Endangered Species Act
(“ESA”).
This is a closed assignment, which means that I am providing you
with all the materials you will need in order to provide a thorough and
competent analysis of the issues in this case and complete the assignment.
1 Mary L. Dunnewold, et al., Judicial Clerkships, A Practical Guide 125 (Carolina Academic Press
2010).
2 Id. at 126.
Constitutional Law
Writing Segment Assignment – Spring 2019 Page 2 of 6
You may not do any outside research. I will consider it a violation of the
Honor Code if you do. Moreover, a version of this assignment has been
given in previous semesters. I will consider you discussing this assignment
with those who have previously taken Constitutional Law or viewing or
using others’ work on this assignment as a violation of the Honor Code.
To write your bench memorandum, you will rely on the briefs, any
appendices to the briefs, and the cases, statutes, regulations and other
materials I am providing.
Note that when you are reading the relevant sources—whether they
are statutes, cases, or regulations—you are reading them not only for
understanding, but also to ensure that what the parties are saying about
them is accurate. When deciding what to read, and how much of it to read,
look closely at what the parties have said about the source and how they
use it. Many of the cases relied on by the parties are ones that you have
read before—United States v. Lopez, United States v. Morrison, Gonzales v.
Raich, NFIB v. Sebelius, Sabri v. United States. Since the casebook only
provides you with excerpted versions of these cases, I am providing you
with full, unexcerpted versions of them, and you should rely on these
rather than what is in your casebook.
The Bone Cave Harvestman
Constitutional Law
Writing Segment Assignment – Spring 2019 Page 3 of 6
Sources:
1. American Stewards of Liberty v. U.S. Fish & Wildlife Serv.,
Intervenor-Plaintiffs’ Motion for Summary Judgment
2. American Stewards of Liberty v. U.S. Fish & Wildlife Serv.,
Defendant’s Opposition to MSJ & Cross-Motion
3. Relevant provisions of the Endangered Species Act: 16 U.S.C. §§
1531, 1532, 1538, 1539
4. 50 C.F.R. § 17.21
5. 53 Fed. Reg. 36029-1
6. United States v. Lopez, 514 U.S. 549 (1995)
7. United States v. Morrison, 529 U.S. 598 (2000)
8. Sabri v. United States, 541 U.S. 600 (2004)
9. Gonzales v. Raich, 545 U.S. 1 (2005)
10. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)
11. GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003)
12. United States v. Whaley, 577 F.3d 254 (5th Cir. 2009)
13. Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000)
14. Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003)
15. Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250
(11th Cir. 2007)
16. San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163
(9th Cir. 2011)
17. People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife
Serv., 57 F. Supp. 3d 1337 (D. Utah 2014)
Other Resources:
1. Sample bench memo
2. Grading rubric
Constitutional Law
Writing Segment Assignment – Spring 2019 Page 4 of 6

II.

Assignment Requirements
The bench memo must be your own work only. You may get

assistance only from Professor Howard, Professor Shultz, Professor Tamer,
or me, but no one else. The bench memo counts for two writing segments
and constitutes 20% of the grade. The bench memo must be written in
Times New Roman 12-point font, double-spaced, with 1-inch margins, and
should be no longer than 10 pages. I will not read past page 10!
You must use proper Bluebook citation format for all citations. You
may use internal citations or footnotes, whichever you prefer. For further
information on the formatting of the bench memo and other requirements,
please see the grading rubric that will be posted with the assignment.
The bench memo is due Sunday, April 7, 2019, no later than
11:59:00 PM and will be submitted anonymously through ExamSoft. After
midterms, you will be given an ID number to use to submit the paper.
Please make sure your ID number is on your paper and that your name is
not. You will lose points for putting your name on the paper. I also strongly
suggest that you submit the assignment in .pdf format, as sometimes
ExamSoft can mess with the formatting of the paper.
I am happy to review rough drafts, but they must be given to me well
in advance of the deadline. As the deadline gets closer, I reserve my right
to refuse to review rough drafts. Also, please note that turning in a rough
draft and incorporating my edits and suggestions does not guarantee you
any specific grade.
III. Structure of a Bench Memo
When you write your bench memo, you must address it to Judge
Yeakel. The memo must include the following six sections: (1) caption; (2)
procedural statement and history; (3) facts; (4) issue(s); (5) analysis; and (6)
recommendation. Below you will find a general description of each of these
sections. I am also providing you with a sample bench memo, written for
another case, so that you can see a well written bench memo. I suggest you
also take a close look at the grading rubric before writing, as it provides
guidance about how your bench memo should be written.
Constitutional Law
Writing Segment Assignment – Spring 2019 Page 5 of 6
A. Caption
The caption of the bench memo should include the usual “To, From”
memo heading and the case title and number. Please note that, as stated,
you will be submitting your bench memo anonymously, so you may invent
a name for yourself to put in the “From” section or you may just put the
identification number that will be issued to you after midterms for the
purposes of submitting this assignment. Make sure your name is not on
the memo and make sure your identification number is on the memo.
Failure to provide the correct identification number or an identification
number will lead to a reduction in points and may lead to delays in receipt
of your grade and/or feedback on the memo. Putting your name on the
memo will also lead to a point reduction on the assignment.
B. Procedural History and Statement
The procedural statement and history should describe the
procedural posture of the case. Note that the briefs are styled as a motion
for summary judgment and a cross-motion for summary judgment. But
they constitute legal motions for summary judgment, not factual motions
for summary judgment. The facts are undisputed; what is disputed is
whether, as a matter of law, the ESA and regulation of the Bone Cave
Harvestman are constitutional. Your description of the case must show
that you understand this.
C. Facts
The facts section should be written objectively. You should include
only facts relevant to the issues before the court. The fact section needs to
provide all background information the judge will need to understand the
issues, arguments, and your analysis. If there are discrepancies between
the way in which the parties see the facts, you must point them out. Be
sure you cite to the relevant brief or appendix/affidavit when citing the
facts.
D. Issues
When framing the issue or issues, you should draft the question(s)
objectively and specifically. You may frame the issue or issues as a question
or using a “whether” statement. You will see that the opening brief makes
an argument about the Administrative Procedure Act and jurisdiction. You
do not have to address the APA, jurisdiction, standing, or the standard of
Constitutional Law
Writing Segment Assignment – Spring 2019 Page 6 of 6
review in your bench memorandum. Focus only on the substantive legal
issues.
E. Analysis
This is the heart of your bench memo. It should explain the
applicable law and the parties’ arguments. It should also include your
independent analysis of the issue(s). The analysis should be written for the
judge and should be tailored to help the judge resolve the issue(s). In this
section, you will first generally describe the law and then you will describe
the parties’ arguments. You must do so thoroughly and objectively. You
will then be making an argument for how you believe the judge ought to
rule. You will need to rely on the cases that the parties cite and that you
believe are most important. Moreover, your language ought to be
persuasive, but you are not engaging in zealous advocacy (you’re a law
clerk, not a party before the court), so keep your tone and language neutral
and appropriate to making a recommendation to the judge.
I suggest that you use IRAC (and mini-IRAC as necessary) in your
analysis. The judge needs to know the issue, what law applies, how the law
applies to the facts of the case, and how you think the issue should be
resolved. You should feel free to use headings and sub-headings to help
guide the judge logically through your analysis. Please consult the rubric
for more guidance on the analysis section of the bench memo.
F. Recommendations
Finally, the recommendation section comprises a few sentences that
set out your conclusions about how the case should be decided. You need
to offer your honest, thoughtful, and thorough conclusion. You also need
to indicate what relief the judge ought to provide, and this must be
appropriate to the type of motions that have been brought. This section is
short. Given that you will have provided an independent analysis in the
“analysis” section, by the time the judge gets to this section, he or she will
likely know your position. Thus, here you just sum it up.

 

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