STATING THE ISSUE: FIVE POINTS 1. Identify the specific question that controls the decision. What does the court have to decide before ruling? For example, "For the purposes of diversity jurisdiction, does a citizen of State A become a citizen of State B by temporarily relocating to State B for a one-year work assignment?" 2. Stating the generic question to be answered is of no use. Statements such as "Should the court grant the motion?" or "Is there subject matter jurisdiction?" do not help the reader understand the importance of the case. 3. When briefing a case, your statement of the issue should identify the reason you are reading the case. The court is announcing an important rule on the topic you are studying. What specific question does it answer? 4. When answering an essay in IRAC formula, your issue statement should identify the precise question you are about to answer. You then state the rules necessary to answer that question. The "application" section applies those rules to the fact. And the conclusion answers the question. 5. It's often hard work to state the precise question before the court. But your brief will be far better. You will understand the facts and rules that are important in answering the question, and you can omit the rest. Formulating a good issue statement also refines your understanding of the case, and how it fits into the evolving law on this legal subject. Examples. For some examples, check out the California Supreme Court web site, which lists all pending cases and the issue to be resolved in each. 09/pendingissues-civil%20-%20090823_0.pdf Here are some issue statements from that site: 1. What is the appropriate test that minor plaintiffs must satisfy to establish a duty by defendants to protect them from sexual abuse by third parties? 2. Can private parties contractually agree to legal service of process by methods not expressly authorized by the Hague Convention? 1
3. Does an agreement following mediation between the parties in an action for a temporary restraining order, in which they agree not to disparage each other, bar a later unlimited civil lawsuit arising from the same alleged sexual violence? 4. Can a trust be a partner in a partnership? Practice: State the issue for each of the following hypos . 1. Under the West Dakota Probate Code, §10-100, upon the death of a parent, "Each child of the decedent shall inherit one share of the decedent's estate." Abbie dies, leaving a biological son (Biff) and a stepdaughter (Carla). Biff sues to prevent Carla from inheriting a share, arguing that she is not a "child" under the law. The dispute is brought to the court for resolution. 2. Pietro (CA) files suit for conversion in federal court against Darla (NY). He alleges that he owned a silver ring given to him by his father, and that Darla stole it. The parties stipulate that the fair market value of the ring was $2,500, but that the sentimental value to Pietro was $100,000. Darla moves for dismissal, arguing that Pietro's claim does not meet the "amount in controversy" threshold. 3. Modoc County enacts an ordinance requiring all persons entering supermarkets to wear a mask during the duration of an ongoing pandemic. Luciano files suit to invalidate the ordinance, alleging that the mandate violates the prohibition on "cruel and unusual punishment" under the Eighth Amendment to the United States Constitution. 4. Pablo (CA) sues StandUpNow in federal court, alleging defamation. StandUpNow is a loosely organized voting rights advocacy group that has not incorporated or registered with any governmental agency. StandUpNow moves to dismiss the case for lack of diversity jurisdiction, noting that it has members in several states, including California. Pablo argues that the headquarters of StandUpNow are in Nevada, and all the active organizers live there. 5. Ping sues Desmond in East Virginia state court for trespass. Under EV law, "equitable" claims are tried by a judge, while "legal" claims must be 2
tried to a jury. Ping wants a jury; Desmond wants the judge to decide the case. Sample answers (prepare your own before reading these): 1. Is a stepchild a "child" within the meaning of a West Dakota statute which awards equal shares of an intestate decedent's estate to each "child" of the decedent? 2. When determining whether a claim for converted personal property meets the amount in controversy requirement for diversity JDX, does the court consider the market value of the property, or the "sentimental value" to the property's rightful owner? 3. Does a legal mandate to wear a mask in markets during a global pandemic constitute "cruel and unusual punishment" within the meaning of the Eighth Amendment? 4. For the purposes of diversity jurisdiction, is an unincorporated advocacy organization domiciled in California if (1) its headquarters are in Nevada, and (2) its members live in several states, including California? 5. Is "trespass" an equitable or a legal claim under East Virginia law? 3
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