About moot court

MC 1  Researching and Supporting a legal argument      

Your problem in legal research is to find support for an argument concerning a current legal case. An argument (as we all know) is a connected series of statements intended to prove a proposition.

These statements might include:

• Constitutional and historical arguments based on philosophical writings of founding fathers / mothers;
• Decisions from similar cases that you think should be applied (precedents);
• Legal tests that can be applied:
  • Central Hudson four part intermediate scrutiny test  (content neutral)
  • Reed v Town of Gilbert four part strict scrutiny test (specific content)
• Trends in law based on legal scholarship (such as the trend toward deregulation of advertising or broadcasting);
• Social research that indicates support for your position (such as research about problems of social isolation and the need for freedom of speech on the internet in the Reno v ACLU case);

Get familiar with controversies in the law by reading up on recent cases or browsing through law reviews in a general area you find interesting. You could just log into Nexis – Uni and type in a few things you find interesting.  Eventually you should end up reading law reviews about the history and jurisprudence / theory of a legal issue.

Examples of legal arguments:

1. Let’s say you have a problem with the way the administration of your public college is cutting student funds for the school newspaper. You might start with a general search and find that the Student Press Law Center and the Foundation for Individual Rights in Education have a lot to say about this. They cite some cases that you can look up in Nexis or other sites. They also cite some  Law Review articles that give a general overview and some cases that are perhaps closer to the specific circumstances of your case.You go back to  Nexis.  You notice that the cases all tend to point in a similar direction, and that by using a different key word you find more of the information you are seeking from a different point of view.  Perhaps you also find social research on the decline of political involvement among college students and base part of your argument on the need for a stronger student press to encourage more thinking and involvement.”
2.  Imagine an article comparing US and European hate speech laws. You might contrast  law review article X, which says European hate speech laws should be adopted in the US, against law review article Y, which says that punishing unpopular speech is not the way things are done in America, and only “true threats” and “imminent action” can be punished.

You cite Brandenburg v Ohio and perhaps other cases along those lines. You consider constitutional theory, perhaps John Stuart Mill’s argument against censorship.  You also cite European laws on hate speech and note what effect they have had.

Next you consider the argument for changing American laws and what a legal test for hate speech might look like. Perhaps the test would involve a link to a hate crime (which has a definition) or some other action or threatened action. Then you might consider the opposite point, saying that unless speech involves imminent lawless action, the law could be seen as overly broad.

With several points of view, you structure an article that contrasts and balances the viewpoints and then finally draws a conclusion.