Appendix A - How to Brief Law Cases In North America it has long been a tradition in law classes to assign students cases to read and to "brief."{1} The purpose of a case brief is twofold. First, by briefing (that is, summarizing and extracting the key points from the case), a student learns how cases are decided. Second, briefed cases provide a basis for in-class oral presentations by students and discussions of the cases by the teacher and students. In briefing a case, a student needs to extract relevant information from a court's opinion and summarize it "briefly." The elements of a case brief consist of: (a) The "style" of the case. This is the case's shorthand name. Commonly it is made up of the plaintiff and the defendant's names (e.g. Wellington v. Napoleon), but not always. International cases are commonly known by the subject matter they deal with (e.g., The Case of Parking Privileges for Diplomats). Also, if the style includes the names of the parties (e.g., Wellington v. Napoleon), it may be that one or both are no longer involved in the litigation if the case has moved from a lower to a higher court. So don't try to match up the names in the style with the parties in the case. (b) The name of the court that wrote the opinion you are reading, and the date the opinion was first "handed down" (i.e., published). (c) A "citation." This is the legal publication (sometimes it will be a "case reporter") where the original unedited version of the case is printed. (d) A statement of the facts that brought the parties before the particular court that has written the case opinion you are studying. Often the dispute has been considered by other courts and the matter is on appeal to a higher court. The statement of facts may need to discuss what was done in the lower courts in order to show why the case is in the higher court. Do not confuse the decision in other (lower) courts with the decision you are reading. (e) The legal "issue" or issues which the court addressed in reaching its decision. An issue is the legal matter in question. It is not the bottom line question of "is X guilty?" or "does X win or lose?" These are generic questions that exist in all legal disputes. Rather, it is the narrow and particular legal issue that determines the outcome of the case at hand. (f) A short statement of how the court resolved an issue is known as a "holding." If the issue was written as a question, the holding may simply be a yes or no answer. (It may sometimes be "maybe" as well. This is frequently so where a higher court has to send the matter back to a lower court with instructions for the lower court to hold a new hearing and get more facts.) (g) The rules of law that the court used in deciding the case. Let me emphasize that a brief needs to set out the rules, not the name of the rules. Thus, if the court opinion states that it is relying on the decision of Wellington v. Napoleon, a student brief may mention the name of Wellington v. Napoleon (it doesn't have to, however), but it must state the rule of the law found in Wellington v. Napoleon (e.g., "the unlawful use of force may be countered and put down with force.") Similarly, if the court's opinion relies on a statute (such as Article 43(1)(a) of the Austrian Road Traffic Ordinance of 1960), it is the rule contained in that statute that is important, not the name of the statute. (h) An explanation of how the court applied the rules to come to its holding and its decision is at the heart of every brief. Sometimes this will simply be a statement that because the rule was this, the holding must be that. Other timesÍand more frequentlyÍit will be discussion of how the rules are to be construed (i.e., properly interpreted) in the particular circumstances of the dispute at hand. (i) Finally, the court's judgment or order to the parties should be given. Often this amounts to a statement that the plaintiff wins, or the defendant wins, or that the decision of a lower court is affirmed or overruled, but not always. A higher court may have to order a lower party to make further inquiries and then decide the case based on the decision of the higher court and the additional facts the lower court uncovers. In such a situation, the higher court will "remand" the case to the lower court. -------------------------------------------------------------------------------- An Example Let us take a look at an example. First, read the following sample case before going on to the brief that follows. -------------------------------------------------------------------------------- THE CASE OF PARKING PRIVILEGES FOR DIPLOMATS Federal Republic of Germany, Federal Administrative Court, 1971. International Law Reports vol. 70, p. 396 (1971). The plaintiff, a national of the Federal Republic of Germany, brought proceedings against a local road traffic authority. The traffic authority had erected a parking prohibition sign on the public highway, outside the embassy of a foreign state, which exempted the vehicles of the diplomatic mission. At issue before the Federal Administrative Court was the question of whether any legal basis could be found under the Road Traffic Ordinance of the Federal Republic, international treaty rules, or international customary law for the proposition that the vehicles of diplomats were to be given special parking privileges on the public highway. The following excerpt from the opinion of the court addresses the issue of the application of international customary law. JUDGMENT OF THE COURT : Having established that there is no obligation imposed by treaty, it must now be considered whether a legal justification for the parking reservation can be found in customary international law.... In a letter from [the Foreign Ministry of the Federal Republic of Germany] dated 21 March 1968 ... and addressed to the defendant in these  proceedings, it is stated that the obligation of the receiving State to provide parking places for diplomatic missions on the public highways is ... a general practice under international law. However, this remark is not to be misunderstood as meaning that a rule of customary international law has already been established. This follows from the subsequent remark regarding the consequences of nonobservance of this practice. In such a case the Foreign Ministry does not fear sanctions or claims for damages, but retorsion. Retorsion is the result of nonobservance of the rules of courtesy, compliance with which is regarded as nobile officium and not as a legal duty. By contrast, in the event of a violation of the norms of international law the affected States employ sanctions in the form of reprisals or claims for damages. Furthermore the statement ... of the Foreign Ministry ... refers to a decision of the Austrian Constitutional Court and to the reports of numerous German diplomatic missions situated in the western world. They describe the provision of parking facilities for diplomatic missions as an international practice.... The decision of the Austrian Constitutional Court of 26 March 1962 (B 304/61) and the decision of the Austrian Administrative Court of 9 March 1965 (Zl 302/64) are not based on the recognition of a rule of customary international law obliging the receiving State to provide sufficient parking space for diplomatic missions on the public highway. They are rather based on domestic law, namely Article 43(1)(a) of the Austrian Road Traffic Ordinance 1960. According to this Article regulations prohibiting and restricting vehicles from stopping are also permissible if a building situated along the road has a location, designated purpose or is in a condition which necessitates such measures. In this connection both courts also speak of the existence of international practices. These practices do not, however, constitute customary international law but are observed as a matter of courtesy (comitas gentium). Such customs are followed by States for reasons of mutual respect and consideration. On the other hand, the requirements necessary for creation of customary international law are generally the same as those for the formation of domestic customary law, that is to say an extended period of continuous usage accompanied by the conviction of those adopting this usage that it is a question of observing an unwritten rule of law (opinio necessitatis). None of the reports of German diplomatic missions, submitted by the Foreign Office to the appellate court, cast any serious doubt upon the view that there exists no rule of customary international law of the kind at issue. Reports from seventeen States (sic) have been submitted to the Court. Three States (Italy, Israel and the Netherlands, as well as the United Nations in New York) have declared that, for reasons of courtesy, they reserve parking space on the public highway for diplomatic missions. According to the report the United Nations appears to own a private car- park. This arrangement only raises the problem of how to distribute the parking spaces amongst the delegations, but not the question of whether other drivers could be excluded from parking on the reserved area for the benefit of specified vehicles. Five other States have made special legal provision within their domestic law for parking restrictions for the benefit of diplomatic vehicles (Austria, France, the USA, Spain and Turkey). The codification of legal rules by some States certainly does not exclude the possibility of the existence of a rule of customary international law. However, taking into account the practice of other States, which expressly stated that they had acted on the basis of courtesy, there is no evidence that those countries which have made special legal provision did so in the conviction that they were thereby fulfilling a duty imposed upon them by general principles of international law. Some of those countries have very extensive regulations which govern more than just the specific creation of a parking area for diplomatic vehicles. This is the case, for example, in Austria, Spain and Turkey. Insofar as certain States, like France, have passed special regulations, this has been done to overcome legal difficulties which they had previously experienced. A further eight States, which also reserve parking space for diplomatic missions, do not make any special legal provisions nor have they expressly declared, according to the reports submitted, that their measures are taken for reasons of courtesy. In any case, under the domestic law of many of these States, the reservation of parking space and the issuing of the appropriate traffic orders are made by the police in the exercise of their discretion and are not subject to judicial review (Portugal, Greece, Norway, Sweden and Argentina). The conduct of the authorities in these States cannot be regarded as evidence of the existence of a rule of customary international law.... The view that there is no serious doubt that this is not a question of customary international law but rather one of courtesy is supported by the fact that neither the Foreign Ministry nor any other administrative agencies have as yet presumed the existence of such an obligation on the basis of international law.... The parking regulation which exempted diplomatic vehicles was illegal. German law did not contain the necessary enabling legislation for such an exemption and it could not be justified on the basis of existing international law. As a consequence, foreign diplomats in Germany could not be granted special parking privileges. -------------------------------------------------------------------------------- The Brief -------------------------------------------------------------------------------- Now for the brief of the preceding case. Compare the brief that follows with the case. STYLE: THE CASE OF PARKING PRIVILEGES FOR DIPLOMATS COURT: Federal Republic of Germany, Federal Administrative Court, 1971. CITATION: International Law Reports, vol. 70, p. 396 (1971). FACTS: A West German national sued a local road traffic authority because it had put up a sign that discriminated in favor of diplomats by allowing them to park on the public highway. West German law made such discrimination illegal. The traffic authority argued that international law required it to give special parking privileges to diplomats. ISSUE: Is there any basis in international law for giving diplomats special parking privileges? HOLDING: No. LAW: International legal obligations can be created in a treaty or by custom. Treaties are formal agreements between states. Customary international law is created in the same way as domestic customary law. That is, a custom must (1) be followed for an extended period of continuous usage, and (2) be accompanied by the conviction of those adopting it that they are observing an unwritten rule of law (opinio necessitatis). No legal obligations are created where states only follow a general practice which they do not regard as binding. Where a practice is followed, a govenment does not fear sanctions or claims for damages, but "retorsion." Retorsion is the imposition of a like action in response by the injured nation. It happens when the rules of courtesy are not observed. Such rules, however, are regarded as nobile officium and not as a legal duty. EXPLANATION: (1) No obligation is imposed by treaty. (2) No legal obligation is imposed by customary international law. There is a general practice (according to the W. German Foreign Ministry) to grant diplomats special parking privileges, but this "practice" is not regarded by any country as binding. The Austrian Constitutional Court reached the same result in one of its decisions. That decision stated that practices are not customary international laws, but are observed as a matter of courtesy (comitas gentium). Statements from German diplomatic missions worldwide indicate also that parking privileges are granted as a practice and not as a rule of law. The diplomatic parking privilege has no basis in international law. Accordingly, it violates German law and is therefore illegal. JUDGMENT: The local traffic authority must remove the signs granting special parking privileges to diplomats. Note that not all cases and case briefs will fit precisely into this pattern. In common law countries, it is common practice for all of the judges on a court with more than one judge to express an opinion. This is also the case for the decisions of the International Court of Justice. In these cases, there may be both a majority opinion (the one that most judges agree upon and which the parties must follow) and one or more dissenting opinions (from judges who disagree with the holding of the majority) as well as separate or concurring opinions (from judges who agree with the outcome but disagree with the reasoning used in coming to it). In cases where there are multiple opinions, you should add to your basic brief an additional entry or entries stating how the dissenting or concurring judges differed from the majority opinion. -------------------------------------------------------------------------------- Footnotes {1}The briefing of cases outside North America is much less common. In civil law countries, law studies generally focus on codes, legislative statutes, and commentaries. In the United Kingdom and many British Commonwealth countries, the focus is on the taking of notes from lecturers and reading (but not briefing) cases. In international law courses, however, both the reading and briefing of cases is widely done. This is so for two reasons. One, much of international law is based on case law. Two, law programs in different countries that arrange for the exchange of law teachers usually prefer that visiting instructors teach international law courses since foreign teachers commonly have little expertise in the local domestic law). This exchange has resulted in a synthesis of teaching methods: North American international law teachers generally use more noncase law materials than their domestic counterparts, and international law teachers in the rest of the world generally use more case law than their domestic peers. [Back to Text]