For Competitors: Rule Clarification & FAQs

I. Brief Formatting Questions

Q1: For my brief, how should I justify the text, e.g. left-justified, fully-justified?

A1: As Competition Rule 5(d)(iv) and associated rules are silent on this issue, feel free to use either left-justified or fully-justified formatting for your brief, whichever you think is best.

Q2: The rules don’t say we can have one, but can we put in a separate standard of review section?

A2: Yes. You can put in a separate standard of review section as you like- whatever you think is most effective. More specifically, you can put one in if you want but it’s not a huge deal if not. Regardless of whether you include such a section in your brief, however, make sure to have researched the point sufficiently to answer a question from a judge about the standard of review if he or she asks.

Q3:When citing to cases in the record, such as the Louisiana Court of Appeal decision, should we use parallel citations?

E.g., Louisiana v. Lee, 964 So.2d 967 (La. Ct. App. 2007); (R. at 3.)

Or can we just cite to the record alone?

A3: No. You don’t have to use parallel citations in a merits brief to the Supreme Court. You may either cite to the Record alone and/or use standard Bluebook Citation format, e.g., as above, Louisiana v. Lee, 964 So. 2d 967 (La. Ct. App. 2007). For a concrete example, please see this brief from the the U.S. Solicitor General’s website, especially pages VI and 14 n.5.

II. Legal Research Questions

Q1: Since Apodaca provides important precedent for our issue, it worries me that it would violate ethical rules that require lawyers to tell the court about all relevant precedent to not discuss the existence of the case in the brief. I suppose that it would be possible to mention the existence of the case without having read it, but I think that would pose problems in terms of making sure that the case is being used correctly and not mischaracterized.

A1: Competitors can and should absolutely read the judicial opinions in those Forbidden Cases,?which they are allowed to do under the Competition Rules, see, e.g., (?. . . competitors may view the actual opinions . . . .? and Rule 3(a) (forbidding only consultation and citation to any briefs on any Forbidden Case and related cases, therefore permitting citation and consultation as to the actual opinions). They’re central and critical in the instant analysis. The Competition Rules permit participants to read, consult, and cite to the actual cases. Competitors may view the actual opinions, i.e. the majority, dissenting, concurring, and any other judicially-issued opinion or order (e.g. Justice Stewart’s dissenting opinion in Apodaca v. Oregon, 406 U.S. at 414-15), that constitute the forbidden cases. What competitors may not do, however, is read any party briefs, amicus curiae briefs, transcripts or recordings of oral arguments, news articles, and similar materials associated with these cases (e.g. the Reply Brief for Petitioners in the Apodaca v. Oregon case, 1971 WL 134172, or the oral argument transcript and audio ).

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