Structure is essential to a good brief.  It enables you to arrange systematically the related parts that are
scattered throughout most cases, thus making manageable and understandable what might otherwise
seem to be an endless and unfathomable sea of information.

        A.  Format
 After reading the case, think about the legal character and procedural status of the case, including
how the case arose (i.e. what was the form of action (e.g.,criminal, procedural, etc.), then think about
the type of proceeding (e.g., appeal from a summary judgment), and the type of relief sought (e.g.,
damages, injunction).  This first entry should be kept brief.  Use the court’s terminology if it will help
you understand the case, use your own language as if you were trying to explain it to a friend.  This
will enhance your understanding of the court’s decision.   Remember: This is not supposed to be a
typing exercise!  It should be an exercise in critical thinking.

Facts:  A synopsis of the essential facts of the case, i.e., those facts bearing upon or leading up to the
issue, in a logical sequence.  While some cases conveniently state the facts at the beginning of the
decision, in other instances the salient facts will have to be culled from their hiding places throughout
the text and even from the concurring and dissenting opinions you will find clues about the facts!

The facts entry should be a short statement of the events and transactions that led one party to initiate
legal proceedings against another in the first place.  Some of the “facts” will be in dispute and this
should be so noted.  “Hard” facts must be included.  Both kinds of facts, however, must be relevant in
order to be listed in the facts entry.  Do not judge which facts are relevant until you have read over the
entire case, as the ultimate determination of the rights and liabilities of the parties may turn on
something buried deep in the opinion.

It is often helpful to identify the role played by a party in a given context, again, where relevant.  For
example, in many of our cases you will need to know what governmental entity (federal or state
agency, etc.) is involved.  It is always helpful, and a good general practice, to identify the “plaintiff”
and the “defendant” or the “appellant” and the “appellee”.   Bear in mind that the party presently
seeking something from this court may not be the plaintiff, and that sometimes only the cross-claim of
a defendant is treated in the excerpt in the textbook.  Confusing or misaligning the parties can ruin your
analysis and understanding of a case.

Be sure to pay attention to what laws are in conflict, or how different parties are relying up on the same
law and reaching a different interpretation.

Issue:  A statement of the general legal question answered by or illustrated in the case.  For clarity, the
issue is best put in the form of a question capable of a “yes” or “no” answer.  In reality, the issue is
simply the rule of law put in the form of a question.  Though the complexity of issues will vary, a
concise, single-sentence question will sum up the issue.  If a case presents more than one issue, you
should express each issue separately in a single-sentence question.

As with finding the rule of law, the problem here is discerning what is the issue raised in the  case.  A
case will purport to raise and answer several questions.  Still, except for rare cases, only one such
question is really the issue in the case.  Questions not central to resolving the matter in controversy are
treated by the court in language known as dictum.  While this may be incorporated elsewhere in the
brief, it has no place under the issue heading.  To find the issue, ask who wants what and then go on to
ask why that party succeeded or failed in getting it.  Once this is determined, the “why” should be
turned into a question.

Reasoning: This is the most important section of your brief.You should note which Justice is the
author. Think about the policy and legal issues at stake in the court’s decision.  What are the policy
ramifications of the Court’s decision to favor one party over another.  What rules of law is the Court
clarifying for other attorneys and judges?  Why is the Court adopting one particular interpretation over
other potential interpretations?  How does the Court reconcile the present decision with prior case law
that has been established?  Be sure to pay attention to the case law that the Court relies on?  Be sure to
incorporate that case law into your brief to show how the Court is interpreting that particular case.
How does the Court distinguish cases that contradict the present decision.  Create the links between the
Court’s interpretation and the decision to favor one party over another.  Ultimately, what interpretation
of the law does the Court favor and why?

Holding and decision:  A succinct explanation of the court’s rationale in arriving at its decision.  In
distilling the reasoning of the court, always include an application of the general rule or rules of law to
the specific facts of the case.  Bring to light in this entry the court’s implicit justifications, i.e., the
reasons for the state of the law, the Justice’s prejudices and biases, the public policies, the things which
influence the Justices’ thinking and, ultimately, the outcome of the case.

Include the concise rule of law.  This should be a statement of the general principle of law which the
case illustrates.  Be careful in selecting the rule of law from the case.  Cases typically present more
than one legal ruling.  How to find the decisive rule of law?  If a particular legal ruling is only a step in
the court’s overall argument, then most likely it is not the decisive rule of law you seek.  A rule of law
is decisive when it is the court’s final conclusion or final statement of the law.  A good starting point is
to check the chapter heading in your textbook where the case appears.

        B.  Use both the Briefing Process and the Brief as a Learning Tool

It is important to be economical in reading the case and writing your brief.  This does not mean
“skimming” a case.  Rather, it means reading the case with an eye trained to recognize into which
section of your brief a particular passage or line fits and having a system for quickly and precisely
marking the case so that the passages fitting any one particular part of the brief can be easily identified
and brought together in a concise and accurate manner when the brief is actually written.  Remember
that the brief assignments not only help prepare you for class discussion and exams but also improve
your legal reasoning skills.  The brief distills your understanding of the case into a few basic points,
which in turn enables you to better participate in class discussion and remember data for the exams.
The briefing process forces you to cull and sift the essential facts and reasoning from the court’s
opinion and succinctly express them in your own words.  This helps you develop an essential facet of
legal reasoning--the ability to put complex matters into simple, yet not simplistic, language.

FACTS: Griswold, an Executive Director of the Planned Parenthood League of Connecticut,
and a medical doctor were convicted under a state statute that made counseling of married
persons who sought to take contraceptives a criminal offense.  The state fined each defendant
$100 as accessory to the 1879 state statute prohibiting the dissemination of birth control to
married persons.  The defendants argue that the state law interfered with a right to privacy.
The Court had previously heard a challenge to this same statute in Poe v. Ullman (1961), but
had refused to hear the case because no one had yet been prosecuted.

ISSUE: Is there a right to privacy in marital relationships implicit in the Constitution, despite
the absence of specific language to guarantee the right?  YES

REASONING: (Douglas) There is an initial issue of whether the defendants can challenge this
law because they are not one of the married couples seeking to protect the rights that have
been violated by the state statute.  Because the defendants are charged as accessories, they
have the right to challenge the law--standing is granted.

The Bill of Rights contain penumbras that flow from the explicit guarantees. These penumbral
rights give "life and substance" to the Amendments, and they guarantee "zones of privacy" for
individuals.  These privacy rights are implicit in the First Amendment's right of association,
the Third Amendment's prohibition against the peacetime quartering of soldiers, the Fourth
Amendment's prohibition on unreasonable search and seizure, the Fifth Amendment's self-
incrimination Clause, and the Ninth Amendment's reservation of unenumerated rights.  All of
these Amendments militate in favor of a principle that the Constitution protects individuals
from governmental invasions by the state.

Prior Supreme Court precedent in Meyer v. Nebraska (1923) recognized that there are rights to
marry, raise children, and attain information that is necessary for protecting liberty rights
guaranteed through the Due Process Clause.  The Court extended liberty rights to parents in
Pierce v. Society of Sisters (1925) which invalidated a state law that required students attend
public schools.  The Court struck down the law specifically because it interfered with parental
rights to control their children's education.

Applying those principles here, parents should be able to control decisions regarding birth
control.  Even though the right to privacy is not explicitly mentioned in the Constitution, it
should be extended here as the right to an education was extended in Meyer and in Pierce.

Finally, these restrictions on the reach of a state's power have been incorporated and apply to
the states through the Fourteenth Amendment's Due Process Clause.  The statute interferes
with the marital right to privacy and the relationship between couples and their physicians.

Concurring: (Harlan)  The, court should not focus on the specific provisions of the Bill of
Rights, but should rely exclusively on the Due Process Clause to find that this law violates the
basic values that are "implicit in the concept of ordered liberty."

Concurring: (Goldberg, with Brennan and Warren)
The Ninth Amendment is not an exclusively independent source of rights, but it does suggest
that the list of rights in the first eight Amendments are not exhaustive.  The right of privacy is
"fundamental," and the state cannot justify its intrusion based on some slim idea that the
purpose of the law is to protect marital fidelity.  The Court's decision does not interfere with a
state's proper regulation of issues such as adultery or fornication.

Concurring: (White)  The Due Process Clause should be the test in determining whether a
state has justified the need for a legitimate and substantial state interest.  The standard under
the Due Process Clause is whether the state has arbitrarily and capriciously applied its
lawmaking function.  Here the state has not shown a sufficient state interest, nor a causal
connection between married persons engaging in extramarital sex and the prohibition on the
dissemination of contraceptives.

DISSENT: (Black, with Stewart) The law is offensive, but the neither the Ninth Amendment
nor the Due Process Clause should be used to invalidate it.  The Court is using its own social
values to subjectively determine whether the law should be struck down.  It is impossible to
determine what fundamental rights are under the Court's holding, because the Court is simply
trying to re-write the Bill of Rights.  The only way to find a right to privacy exists is through a
Constitutional Amendment.

DISSENT: (Stewart, with Black) This is an "uncommonly silly law," but the Due Process
Clause should not be used to because there was no claim that the law was vague, nor that the
defendants were denied any procedural rights.  The Ninth Amendment simply restricts the
federal government to a government of express and limited powers.  What is even more
ludicrous is that the Court finds a right to privacy, while the Constitution is silent on such an
issue.

HOLDING: The right of marital privacy, although not explicitly stated in the Bill of Rights is
one of the penumbral rights formed by certain other explicit guarantees.  As such, the right to
privacy is protected against state regulations that interfere with this right.  Additionally, the
law, as is it written, is overbroad and reaches beyond the legitimate scope of state power; it
must be invalidated.