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Transcript of Write On Competition Presentation
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Preparing a Casenote
Professor Tobi Tabor
Summer 2008
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Legal Scholarship is
Critical Writing [A]lmost all legal scholarship is implicitly directed
to the decision-makers in our societylegislative
and executive as well as judicial.
Legal scholarship is characteristically normative(informed by a social goal) and prescriptive(recommending or disapproving a means to thatgoal.
Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 3(3rd ed. 2005).
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Characteristics of Good
Scholarly Work* Original
Says something not said before
Comprehensive provides sufficient background [so] any
law-school-educated reader [can]understand . . . and evaluate the writersthesis.
takes the reader from the known(background) to the unknown (the
writers analysis).*
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Good Scholarly Writing Factually Correct Logical Analysis
well and sufficiently reasoned anddivided into mutually exclusive,yet related sections
Clear and readable Somewhat formal style Not pompous or colloquial
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Steps InvolvedTasks Required
1. Inspiration2. Research-
preliminary
3. Research-close tocomplete4. Drafting5. More research-fill
gaps6.
Revising7. Polishing
Fajans & Falk at 21.
1. Outline/roughdraft
2. Complete draft3. Good draft4. Final product
Mary Barnard Ray & Barbara J.
Cox, Beyond the Basics 406-20 (2d ed. 2003). You maynot write all these stages,but you will need to addressall tasks.
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Steps&Tasks Integrated1. Inspiration
3. Research-preliminary
5. Research-close to complete
6. DraftingOutline/Rough Draft
Complete Draft7. More Research8. Revising
Good Draft
9. PolishingFinal Product
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Step 1-Your inspiration* Unresolved or evolving areas of law provide
most potential Disputes about the lawsplit in federal
circuits Case before SCOTUS Disputes about direction law should
take
Something worth writing aboutnew issue,rule no longer practical Hone it down to manageable size and
scope
*Fajans & Falk at 21.
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How to Narrow Topic: Adoption byAmerican citizen of child citizen of
foreign country Ask series of questions
Impact re immigration for the childs natural parents?Unadopted siblings? Extended family?
Differences in adoption procedures in various foreign
jurisdictions? Validity of decree entered by foreign court? Differences in validity of adoption if by state agency,
private agency, birth mother? Implications of sparse or no medical records of birth
mother or child?
Up and down ladder of abstraction: macro focus(greatest level of generality) to micro focus (greatest detail& specificity) What is frequency of domestic vs. foreign adoptions by
adoptive parents ages, income, and education? What remedies if foreign adoption is not recognized by
state of parents residence ?
Fajans & Falk at 20-22.
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Foreign Adoption Decide whether primarily legal or
primarily interdisciplinary What federal and state laws and regulations govern foreign
adoption? What entities are responsible for enforcing? If adopted children satisfy the US immigration health rules
but nevertheless have serious disease, how effectively arethose children integrated into their adoptive families andcommunities?
Determine Causation What is the impact of foreign adoptions on domestic
adoptions? Make comparisons
Are adoptions from foreign jurisdictions with more relaxedrules scrutinized more carefully by the US, and do thesuccess rates of those approved adoptions comparefavorably with the success rates of adoptions from
countries with stricter rules? Do the approved foreign adoptions compare favorably with
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Your original thesis
Descriptivethe world as it was/is Historical question A claim about a laws effects How courts are interpreting the law
Prescriptivewhat should be done How a law should be interpreted
What new law should be enacted How a statute or common-law rule should be
changed
Probably a combination of both descriptive and
prescriptive. * Eugene Volokh,Academic Legal Writing 9 (2d ed. 2005).
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Characteristics of ClaimGood Legal Scholarship should (1)make a claim that is (2) novel, (3)nonobvious, (4) useful, (5) sound, and
(6) seen by the reader to be novel,nonobvious, useful, and sound.*
You identify a problemdoctrinal,
empirical, historicalyour claim is yourproposed solution to the problem.
* Eugene Volokh,Academic Legal Writing 9 (2d ed. 2005). Id.
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Your ClaimYou should be able to state your claim in
In one sentence.*
Statute X does not provide adequateprotection to those it was enacted toserve because .
This [ruling] is likely to have the
following side effects . . . , and thereforeshould be modified to provide . . . .
* Volokh at 9.
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Step 2-Preliminary
Research You are given specific case Read all separate opinions As you read, formulate reaction to courts
reasoning (majority, concurrence, dissent),and from there, formulate your claim/originalthesis.
Check periodicals to see if your claim has
already been addressed. You should read all the cases cited by the
court in starting your research, and you mayneed to read them before you formulate your
claim.
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. ,No. 06-1456 (U.S. June 2,
2008)Cuellar was driving through Texas toward Mexico whenhe was stopped for driving erratically. After questioningCuellar, officers asked and were given permission tosearch his car. While the officers searched, Cuellarmade the sign of the cross, which the officers took tomean Cuellar thought he was in trouble.
Officers found a secret compartment under the rearfloorboard. Inside was approximately $81,000 in cash,bundled in plastic and secured with duct tape. There
were signs the compartment had been recently created.Cuellar was convicted under 18 U.S.C. 1956(a)(2)(b)(i), a provision of the money launderingstatute that prohibits transporting proceeds of unlawfulactivity across the border, knowing the transportationwas designed to conceal or disguise the nature , the
location, the source, the ownership, or the control ofthe mone i.e. criminalizin certain kinds of
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Cuellar Analogizing to interpretations of another provision ofthe statute-- 1956(a)(1)(B)(i) (criminalizing certainfinancial transactions)--the Fifth Circuit panel reversedthe conviction, holding the transportation must be
undertaken in an attempt to create the appearance oflegitimate wealth and although the evidence showedintent to avoid detection while driving to Mexico, it didnot show Cuellar intended to create the appearance oflegitimate wealth.
The Fifth Circuit en banc then affirmed the conviction,rejecting Cuellars and the panels position that thegovernment must prove the transportation wasundertaken in an attempt to create the appearance oflegitimate wealth. The en banc court held Cuellarsextensive efforts to prevent detection of the moneyduring transport proved he sought to conceal or
C ll I f /d i i
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Cuellar: part I-facts/decisionsbelow; part II-reasoning; part III-
holding IIA: the designed to conceal element
American Heritage & Blacks Law dictionaries Pennsylvania Dept of Corrections v. Yeskey, 524
U.S. 206 (1998) United States v. Abbell, 71 F.3d 1286 (11th Cir.
2001) 31 U.S.C. 5332
IIB: whether evidence sufficient to sustainconviction Several cases in footnote 4 re interpretation of
transaction provision to exclude mere spendingvis-a-vis mere hiding
Two cases in footnote 5 re substantial efforts to
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Cuellar Concurrence, Justice Alito, joined
by Chief Justice Roberts & Justice
Kennedyto summarizeunderstanding of the deficiency ingovernments evidence
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Issues? Is the Courts analysis rejecting the commondefinition of money launderingtransferringillicit funds through legitimate sources to
disguise their nature and source sound? Doesthe analysis affect interpretation of related orsimilar criminal statutes?
Does the Courts analysis and holding affectthe governments burden of proof in casesunder this statute? Other statutes?
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Where would you start? Thesis/claim?
Narrow topic Questions Macro-micro Interdisciplinary/law only Comparisons Causation
Research sources? Who has authority Where find sources
Lines of analysis?
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Step 2-Preliminary
Research Research Plan
List major pointsroadmap for research Develop search terms
Known case or statute Annotated statutes Shepardizeheadnote numbers Key CiteKey numbers legislative history
No specific starting point Secondary sources
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Research Plan Has someone else looked into some aspects? Build checks into your research so you dont
stop too soon Logical and orderly documentation of what you
have done What courts, governments, branches of
government have authority to speak on theissues? Different places to find that authority?
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Read critically while
researchingTake good notes so you dont loseyour original reactions to material.
Dont read just to summarize. Find the holes in what youre
reading, the inconsistent
reasoning, conflict with precedent(will help you focus on thesis andanalyze topic critically).
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Step 3Research-close to
complete What sources might you be looking for? Statutes and regulations: U.S. & foreign
Treaties, Conventions, Protocols Cases Secondary sources: academic
perspective, practical perspective
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Step 4-Drafting: How Do
the Materials Fit Together? Organize your materials into issues,
lines of cases and commentary, pro andcon
If you have a good grasp of a thesis,start with an outline
Try a non-linear outline if you cantdecide how concepts fit together
If youre not ready for an outline, dofreewritingjust dump all thethoughts you have onto the paperfrom there you can derive an outline
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writing anywhereend with 4parts
Scholarly papers have a basic four-partstructure
Introduction Background Analysis
Conclusion
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Introduction
Goal--persuade people to readfurther
Introduce topic & why its important Describe subject of paper
Give enough background to make
significance of your subject obvious State your claim Provide an explicit roadmap
5-7.5% of paper
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Background: Two parts incasenote General background
Genesis of subject Changes during development Reasons for changes How things are now
Specific case description
Issue court considered Facts as relevant to the issue Each separate opinion
Decision
Reasoning
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Background: Both Parts
Have to assume law-educated reader isrelatively uninformed in the area
Not tedious with detail but specific as towhat is necessary for topic
Be comprehensive judiciously
Synthesize precedents No commentary, critique
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Background: Generalsection
Topically re issue/strand ofanalysis
Chronologically w/in topicJurisdictionally w/in topic
Courts Branches of government
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Analysis
The most important section (1) original thoughts (2) tightly, logically, and
creatively reasoned Keep readers interest Build to a conclusion
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Analysis
Your critique and commentary Assess development of
relevant case law: how law gotwhere it is, where it should go,why, how?
Usually several strands ofanalysis
Background & Analysis 85-90%of paper: split 40/60 up to
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Prove your thesis
Prove your prescriptive proposalboth doctrinally and as a matter of
policy. Be concrete. Confront other sides arguments,
but focus on your own.
*Volokh, supra, at 35-38.
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Organization of Analysis
Large-scale Divide into major issues/strands of analysis
use informative headings Subdivide--subheadings Order logicallyheadings & subheadings
should be logical outline
Small-scale Introduce and conclude on each issue Focus on your arguments Rebut major opposing arguments
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Different OrganizationalPatterns in AnalysisAlternating Pattern
Thesis Statement
Overview -- big picture4. Point 1
Alternative AAlternative B
7. Point 2
Alternative A
Alternative B
3. Point 3Alternative A
Alternative B
Comparison & Evaluation ofAlternatives
Divided Pattern
Thesis Statement3. Alternative A
n Point 1n Point 2n Point 3n Comparative overview
of points
4. Alternative Bn Point 1n
Point 2n Point 3n Comparative overview
of points
Comparison & Evaluationof Alternatives
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Conclusion
Restate thesis Summarize major points [M]ay suggest related issues or
ramifications, inviting the reader tofurther reflection.*
5-7.5% of paper
*Fajans & Falk at 9.
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Step 5More Research
As you write, research to fillanalytical gaps, provide examples,etc.
Continuous process Dont let research prevent or
interrupt writing
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New Plagiarism Policy
A failure to review and familiarize yourself withthese guidelines and how they apply to theassignment you have before turning in even a
draft ofa covered paper constitutes a violationof the University of Houston Law Center HonorCode, and that is so even if the paper ends upnot violating this policy. In other words, there
is no acceptable excuse for preparing a papecovered by this policy without having firstreviewed this policy carefully and determininghow it applies to the project in which you areengaged.
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Plagiarism Policy
[A] writer may not appropriate inhis writing either the language or
the ideas of another without givingdue credit to the source of suchlanguage or ideas, except as
otherwise specifically provided [inthe policy].
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Giving Due Credit tothe Source
What constitutes giving credit tothe source of borrowed language
or ideas in a way that clearlyindicates the nature and extent ofthe sources contribution to the
students work varies according tothe circumstances . . . [,] and thePlagiarism Policy has examples.
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Plagiarism
intent not required
plagiarism is still plagiarism, evenwhen it is inadvertent product ofcareless research (i.e., save those
pages from which you expect toquote, note pinpoint cites)
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What is a paraphrase?
Putting anothers ideas and words intoyourown words
Not just changing a few words here and
there, even if you cite the sourceif youchange only a few words, you still need toquote the authors words
Write your paraphrase relying on yourmemory, without looking at the original.
Then compare for content, accuracy, andmistakenly borrowed phrases.*
*http://owl.english.purdue.edu/handouts/research/r_plagiar.html (10/01/02)
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Footnotes have threefunctions:
provide authority for assertions
attribute borrowed ideas & wordsto a source
Provide discursive commentary tosupplement text
A th it F t t
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Authority Footnotes--the general rules
substantiate every proposition in textnotyour own ideas and opinions No common knowledge in legal writing background sections need fewer and more
general footnotes see generallyand see, e.g.,
use appropriate signals when necessary
be sure signal choice is not misleading
do not quote work out of context
use parenthetical explanations to makeclear the relevance of citations
--
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--Quotes, Concepts, &Principles
Only rights that are specifically enumerated in theConstitution or that are "'so rooted in the traditions andconscience of our people as to be ranked as fundamental"'qualify for this level of analysis. [FN81] Otherwise, courtsapply rational basis review, under which a law affecting
property or nonfundamental liberties is presumed valid andwill survive judicial scrutiny if it is "rationally related to alegitimate state interest." [FN82]
[FN81].Griswold v. Connecticut, 381 U.S. 479, 487 (1965)(Goldberg, J., concurring) (citing Snyder v. Massachusetts, 291U.S. 97, 105 (1934)).
[FN82]. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,440 (1985).
Material illustrating types of footnotes in these footnote slides is quoted fromAdrienne Butcher, Note, Selective Constitutional Analysis in Lawrence v.
Texas: an Exercise in Judicial Restraint or a Willingness to ReconsiderEqual Protection Classification for Homosexuals?, 41 Hous. L. Rev.1407 (2004).
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Attribution FootnotesStatements, Ideas,& Structure
--the general rules
footnote for borrowed language, facts or ideas 7 consecutive words use quotation marks if distinctive language use quotation marks
50 or more words follow block quote rules footnote citing or quoting source A thatin
turn quotes or cites B Only one level of quoting or citing is
necessary, unless second level particularly
relevant. Rule 10.6.2 reference source and significance as you
introduce a quote The Shasta dissent criticized the majoritys
construction of the phrase, remarking: . . . .
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Textual Footnotes--how do I use them?
Supplement your text clarify or qualify an textual assertion
raise potential criticisms or complications relate anecdotes pertinent to text
Use textual footnotes to enrich the
theme of your argument
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Citation Placement inFootnotes Citation Sentences
If the unlicensed individual answers difficult ordoubtful legal questions, she has committed theunlawful practice of law.Gardner v. Conway, 48 N.W.2d 788, 796 (Minn.
1951). Citation Clauses
If the unlicensed individual answers difficult ordoubtful legal questions, she has committed theunlawful practice of law.Gardner v. Conway, 48 N.W.2d 788, 796 (Minn.1951).The courts have suggested that the draftingof a testamentary will by a nonlawyer is theunauthorized practice of law,Peterson v. Hovland,42 N.W.2d 59, 63 (Minn. 1950), as is thepreparation of complicated tax returns, Gardner v.Conway, 48 N.W.2d 788, 796 (Minn. 1951).
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What Requires Citation?
Quoting, paraphrasing, or
otherwise using another'swords or ideas--must credit thesource in a way that clearly
indicates the nature and extentof the original source'scontribution to your article
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Proper Citation Form
The Bluebook: A Uniform System ofCitation (18th Edition)
Locate the Pertinent Rules Use Quick Reference Pages Use the Index Use the Table of Contents
Read the Main Rules Covering YourSource
Consult Applicable Tables
iff f
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Different Parts of aCitation
Typeface: main text, footnote text, andfootnote citation
Abbreviations Source material: case, book, statute,
periodical Date Page: beginning and pinpoint Court/author
ype ace rev a ons:
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ype ace rev a ons:Case names in textualsentence
In main text: In Southern PacificCo. v. Jensen, Justice McReynolds
stressed the value of uniform laws. 244 U.S. 205 (1917).
In footnote text: In Southern PacificCo. v. Jensen, 244 U.S. 205 (1917),
Justice McReynolds stressed thevalue of uniform laws.
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T f & Abb i ti
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Typeface & Abbreviations:Statutes
Rule 12.3: Current Official &Unofficial Codes Large & small caps
Table 1: Abbreviations for federal and state
codes Which code to cite for each state
T f & Abb i ti
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Typeface & Abbreviations:Books
Rule 15.1: Author large & small caps
Rule 15.3: Title no abbreviations large & small caps Rule 8(a):Capitalization in Titles
T f & Abb i ti
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Typeface & Abbreviations:Periodicals
Rule 16.1: Author Ordinary roman
Rule 16.2: Title of article Ordinary roman No abbreviations Italics
Rule 16.3: consecutively paginated
Rule 16.4: nonconsecutively paginated Tables T.10 & T.13: Abbreviations Periodical
Title Large & small caps
El t i M di & Oth
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Electronic Media & OtherNonprint Sources: Rule 18
The Bluebookrequiresthe use andcitation of traditional printed
sources unless: Information cited is unavailable in
traditional printed source or
Copy of source can not be locatedbecause it is so obscure itspractically unavailable
You can cite electronic sourcealone for onl two exce tions :
El t i M di & Oth
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Electronic Media & OtherNonprint Sources: Rule 18
Rule 18.1.1: Cases-unreported butavailable on widely used database
Include case name, docket number,
database identifier, court name, fulldate, unique database identifier
Gibbs v. Frank, No. 02-3924, 2004 U.S.App. LEXIS 21357 (3rd Cir. Oct. 14,
2004). Shelton v. City of Manhattan Beach, No.B171606, 2004 WL 2163741 (Cal. Ct.App. Sept. 28, 2004).
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Internet
Rule 18.2: If available, cite to printsource or widely available commercial
database Use internet
Source unavailable in print or on widelyavailable commercial database
Available in print but Internet versionidentical & will increase access: printcitation with parallel cite to Internet,preceded by available at
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Constitutions and Statutes
Rules 11 and 12 for print sources Rule 18.1.2
After citation through section number,give parenthetically Name of database
Currency of database (rather than year in12.3.2) Publisher, editor, or compiler of database
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Short Forms
General: Rule 4 Cases: Rule 10.9 Statutes: Rule 12.9 Books: Rule 15.9 Periodicals: 16.7 Electronic: Rule 18.7
T bl 6 C N
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Table 6: Case Names(335)
Abbreviations of common words incase names for use in citation
sentences Note rule for plurals-unless
otherwise indicated, add s toabbreviation: Pharmaseutic[s, al]
= Pharm. Note abbreviations may be same
for various forms of a word:
Econom[ic, ics, ical, y] = Econ.
Table 10 Geographical
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Table 10: GeographicalLocations (342)
for case citations, names ofinstitutional authors, periodical
abbreviations, foreign materials,and treaty citations
State abbreviations in table 10 not
the same as postal abbreviations
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Table 13: Periodicals (349)
English language periodicals frequentlycited or difficult to abbreviate
If periodical not in list: abbreviate by looking up each word in title in Table 13
and Table 10 (geographical terms, 342) omit a, at, in, of, the
word not in T.13 or T.10-dont abbreviate Only one word after omitted a, etc., dont
abbreviate
Internal Cross References
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Internal Cross References(63)
Rule 3.5 supra and infra See supra notes 44-47 and
accompanying text. See infra pp. 55-61.