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LAW4511
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You Think You Have Issues?
The Art of Framing Issues in Legal Writing
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INTRODUCTION –
Legal Issue and Legal Analysis
• The crucial first step of the legal analysis process -
identifying the ISSUE/S or “spotting the issue/s” or
the QUESTION/S PRESENTED by the fact situation.
• It is the foundation and key to effective legal
analysis.
• Reasons: It informs the reader of the issues before
she begins reading the analysis or argument.
• Additionally, in trial motions and appellate briefs,
the question presented encourages your reader to
accept your position early on.
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Hence:
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SOME DEFINITIONS
What is an issue?
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ISSUE TYPES
• Issues can be broken into three
broad categories:
o A question of which law applies;
o A question of how a law applies;
o A question of whether a law
applies at all.
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ELEMENTS INVOLVED IN ISSUE
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•The LEGAL QUESTION
o This refers to the precise legal issue
concerning the law governing the dispute,
raised by the facts of the dispute.
o It informs reader the nature of the dispute.
• The Legally SIGNIFICANT FACTS or KEY FACTS
o This refers to those facts that impact the
outcome of the case, and are not ‘merely
explanatory or coincidental’.
o They are facts that raise the legal question of
how or whether the law governing the
dispute applies. 11
Legally Significant Facts - Example
• A good example is the age of a criminal defendant
charged with the unlawful possession of alcohol.
• In this case, the defendant’s age would be a legally
significant fact because criminal liability is predicated on
his being under a certain age, namely 21 years of age.
• If the defendant were under the age of 21 and
possessed alcohol, he would be guilty; conversely, if he
was 21 or older, his actions would be legal.
• The age of the defendant changes the outcome of the
case in this example.
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Nature of Issue
• The THREE ELEMENTS (controlling law, legal
question, key facts) make statement of issue
as either
o comprehensive – when it includes the
specific law and key facts.
o narrow or specific – when it includes
detailed facts: the more facts included, the
more specific (or narrow) the legal question
becomes.
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Examples
• Comprehensive:
Under the Wills Act 1959, (Controlling Law), is a will valid
(Legal Question) if it is handwritten by a neighbour at the
direction of the testator, but not written in the testator’s
handwriting (Key Facts)?
• Narrow:
Under Malaysian tort law (Applicable Law), does a battery
occur (Legal Question) when law enforcement officers, while
making a lawful arrest, encounter resistance, use force to
overcome that resistance, and continue to use force after
resistance ceases (detailed Key Facts)?
14
FAILURE TO INCLUDE THE ELEMENTS
• Failure to include these elements results in an
abstract question, a broad statement of the
issue that is missing the legal (applicable law)
and factual context.
• Examples:
o Was the will valid?
o Did the police commit a battery?
• Hence, question presented should not only
pose the question.
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Importance
• Importance of focusing on the elements of
the issue and identifying the issue in terms
of the elements is critical.
• It
o reduces the chance of misidentifying the
question presented by the facts; and
o helps guide the researcher/writer,
o thereby saving time and effort.
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WHY ISSUE SHOULD NOT BE TOO BROAD
"Did the security guard at the shopping mall falsely imprison Bo Rong
when the guard held Bo Rong’s arm, preventing him from leaving the store
until the police arrived?"
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ORGANIZING ISSUE/S
A. STEP 1: Identify each type of cause of action
Identify each type of cause of action and area of
law possibly involved.
• The purpose is twofold:
o To identify in general terms the issues involved.
o To provide a starting point for the identification
and clarification of each specific issue that
must be resolved in the case.
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WHAT IS CAUSE OF ACTION?
• A CAUSE OF ACTION is a combination of facts
giving rise to
o a claim/right to sue in civil law; or
o a right to prosecution under criminal law.
• In short, ‘what might bring the parties into
court ‘.
• It provides the basis for commencing court
proceedings in order to obtain an appropriate
remedy or sanction by law.
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Examples:
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C. STEP 3: Determine the Key Facts
• Determine which of the facts of the client’s case
apply to establish or satisfy the elements of
each cause of action—the key facts.
• If there are no facts that satisfy or establish an
element, there probably is no cause of action or
issue.
D. STEP 4: Assemble the elements in the Issue
• Gather and assemble the elements of the issue
from the law and key facts identified in steps 2
and 3.
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E. Step 5: Address Multiple Issues and
Sub-issues
• Identify all potential issues and apply
the four-step process to each.
• NOTE: A single issue may have
multiple parts or sub-issues. Each part
or sub-issue should be separately
considered and addressed.
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DRAFTING ISSUE STATEMENTS
• There is no single way to write the issues.
• Memo writers often use one of several conventions.
• All the conventions share certain key features. They:
o alert the reader to the 3 ELEMENTS:
relevant law,
questions that will be discussed;
legally significant facts
o are stated in a neutral or non-conclusionary
fashion.
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Be Neutral, No Conclusion!
• The Statement of Issue or Question Presented must be framed in a
neutral form to the point that either side might have written the same
question.
• This applies even in predictive writing.
• This means that the factual elements (or the key facts) components
must never contain legal conclusions or “beg the question.
• Otherwise, your reader could assume your analysis is not objective and
may only reflect one side of the issue.
Example
This would not be a neutral question because the key issue (was he
falsely imprisoned?) is stated as conclusion.
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Further Examples:
CONCLUSORY QP: Under Malaysian law, can Ringo be
convicted of armed robbery when he displayed a toy
gun during the course of a robbery?
[This QP concludes that a robbery was, in fact, committed.]
NEUTRAL QP: Under Malaysian law, can Ringo be
convicted of armed robbery when he displayed a toy
gun while taking items from a store without paying
for them?
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Issue Drafting is Challenging!
• Expressing the issues accurately is one of the most difficult
aspects of opinion writing.
• Writers face the challenge of how detailed to make the
issue statement, how many issues to include, and whether
issues should be stated separately or as sub-questions.
• Experienced legal writers expect to redraft the issue
section as they rework the discussion section.
• While the initial version of the issues helps the writer
structure the discussion, the iterative process of thinking
and writing often changes the content and structure of the
legal issue.
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Formulating Issues Steps
• Identify claim, crime, defense or elements
• Summarize necessary facts related to the dispute
• Pose a question that identifies the disputed issue
• Phrasing of the issues should strongly suggest the
answers you want.
• Count the Issues.
• Number of issue statements must match the parts in the
discussion
• Organize and list the question(s) in the same order of the
discussion.
• Can have either specific references to client or general
references - better practice is to use parties’ names.
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Styles of Drafting Statements of Issue
• What style to adopt is determined by the type of writing
the writer undertakes: Non-Predictive or Predictive
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Non-Predictive Writing Issue Formats
1. Straight forward presentation of the Legal Question.
Examples: “What…”
o "What is the current state of the law on false imprisonment?”
o “What is the scope of activity that has been permitted by the
Bar Council or courts considering the practice of ‘marketing’
by advocates and solicitors in Peninsular Malaysia?”
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Continue…
• Example: “Does….”
o “Does the Malaysian Bar rule concerning
advertising by lawyers apply to advertising
for legal services on the Internet?”
• Example: “Can…”.
o “Can squatters in a residential property be
evicted by the owner under the National
Land Code?”
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Continue… Non-Predictive Writing Issue Formats
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Examples
o “Whether squatters in a residential property can
be evicted by the owner under the National Land
Code.”
o “Whether the Malaysian Bar rule concerning
advertising by lawyers applies to advertising for
legal services on the Internet.”
o “Whether a conspiracy to commit extortion
requires that the conspirators agree to obtain
property from someone outside the conspiracy.”
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Critiques of Whether Formats
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Predictive Writing Issue Formats
• PREDICTIVE WRITING involves PREDICTION BASED
ON CLIENT FACTS.
• Writer is asked to research on the applicable rule/s of
law to a set of facts and predict a result (whether
rules support or otherwise client’s position).
• In this format, 2 critical components are:
a) a brief quote from the element of the law in
contention (the legal element/s), and
b) several of the important facts relevant to
that contention (the factual element).
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Predictive Writing - Issues Drafting Steps
To draft the Issue for the research memo, follow these three steps:
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The Law:
Libel is defined as (i) a public and malicious
imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status or
circumstance (ii) tending to discredit or cause the
dishonor or contempt of (iii) a natural or juridical
person, or (iv) to blacken the memory of one who is
dead.
The following elements constitute libel:
(a) imputation of a discreditable act or condition to
another;
(b) publication of the imputation;
(c) identity of the person defamed; and,
(d) existence of malice. 47
The Issue in this case might be written this way:
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How Much Facts?
• A typical question presented or issue statement begins
by stating the legal question and ends by describing
the factual situation.
• Example:
“Is the owner of a motorcar liable if someone borrows
the motorcar and subsequently causes an accident?”
• Note: It is rarely possible to include all of the relevant
facts in the question presented, though you should try
to include the most important ones.
• Thus, for example, one might add “and the owner
knew that the driver was intoxicated” at the end of
the previous example. 49
Possible Issue Stetement Formats
1. Legal question + concise statement of
relevant facts
2. Under [controlling law], Does [legal
question], When [legally significant
facts] format – (with 2 further sub-
styles)
3. ‘Multi-Statement’ or ‘Deep Issue
Statement’ Format
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NO 1. “Legal question + concise statement”
Format
The LEGAL QUESTION can begin with any of the
listed Common Verbs and the KEY FACTS can be
connected with the appropriate Transitions.
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Example
• Your client, Loh See Mah, learned that a bank employee had snooped
into his banking information for personal reasons. There are no cases
in your jurisdiction claiming damages for invasion of personal privacy.
Here is an example of an issue statement on whether your
jurisdiction will adopt a new cause of action.
Format used:
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Limitations of the Format
• Like ‘whether’ format, this format
also adopts a one-sentence
structure..
• While it states the legal question, it
lacks facts, especially when the fact
situation is complex, and details on
the law.
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NO 2. “Under/Does/When” Format
• Under [insert rule of law] + does [insert question] + when [insert legally
significant facts]
(or alternatively)*
• Under [insert rule of law] + can [insert question] + when [insert legally
significant facts]
(or alternatively)*
• Under [insert rule of law] + did [insert question] + when [insert legally significant
facts]
(or alternatively)*
• Under [insert rule of law] + was [insert question] + when [insert legally significant
facts]
(or alternatively)*
• Under [insert rule of law] + is [insert question] + when [insert legally significant facts]
(or alternatively)*
• Under [insert rule of law] + would [insert question] + when [insert legally significant
facts]
(or alternatively)*
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Notes
• Some legal writing experts recommend this format
because the structure acts as a checklist. If you follow
the format you will be sure to cover the law, the facts,
and the question to be answered.
• When using this format, consider whether you are
addressing an issue that is ongoing, has occurred, or
may occur in the future, and adjust the language
accordingly.
• Use of “did” or “would” is appropriate in place of
“does” for past and future issues, respectively.
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Two Variations of the Format
1. SINGLE-SENTENCE structure format.
• It makes a general reference to the applicable rule of law or
cause of action, with material facts and the legal question. It
adopts SINGLE-sentence structure.
Example:
"Under the common law, does Loh See Mah have a claim for
invasion of privacy when the bank employee looked at her
bank records for personal reasons?“
In this example:
o under introduces the law being applied
o does asks the legal question
o when sets out the material facts
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Continue…
Example:
Under the Malaysian contract law that
recognizes an agreement made without
consideration if it is expressed in writing,
registered, and the parties stand in near
relation to each other, can there be an
enforceable contract when a woman on her
deathbed expressed her intention to leave all
her properties to her four adopted children?
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More examples under US Law
• Under North Carolina law, the elements for a cause of action under defamation
are (1) defendant made false, defamatory statements about the plaintiff; (2)
those statements were published to a third person; and (3) the statements
caused injury to plaintiff's reputation. Tyson v. L'Eggs Products, Inc., 84 N.C.App.
1, 351 S.E.2d 834 (1987).
• Question #1: Under N.C. law does a person commit the tort of defamation
against a businessman when, at her personal internet web site, (1) she claims
the man had sexual relations with her when she was 16; (2) she claims he had an
affair while married; (3) she claims he made a "pass" at his wife's sister while
married; (4) she claims he is not living up to his divorce settlement; (5) she
claims he has failed to make child support payments; (5) she calls him a "jerk";
(6) she says he is a "mentally unstable monster" and "might resort to violence"?
• Question #2: Under N.C. law, if there has been defamation, are damages
recoverable when a person's business has lost a major account, and when the
person has suffered emotional stress to the point of weight loss, daily therapy
sessions, and prescription anti-depressants?
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Continue… “Under/Does/When” Format
2. TWO-SENTENCE structure format
• It makes a specific reference to the constituent elements/criteria of the
applicable cause of action, the material facts and the legal question. It
adopts TWO-SENTENCE structure.
Example:
Under the Malaysian Penal Code, a person may be convicted of robbery
if, in order to commit theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by the theft, he, for
that end, voluntarily causes or attempts to cause to any person death, or
hurt, or wrongful restraint, or fear of instant death, or of instant hurt, or
of instant wrongful restraint. Did Janiah commit robbery when she
brandished a gun at the sale assistant and threatened to shoot him in the
course of committing theft?
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No 3:‘Multi-Statement’ or ‘Deep Issue Statement’ Format
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• A multi-statement or deep issue statement
format is gaining popularity because it can be
easier to read, is more comprehensive, and is
more concrete.
• This format is essentially a longer version of
the “under, does, when” format spread over
three or four sentences.
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The “Deep Issue” Structure
• Breaking the issue into separate sentences:
o Opening sentence:
“(Rule of law) Under the common law, an action for invasion of privacy can
exist where there is an intentional intrusion into a person's private affairs,
without legal justification, and under circumstances that a reasonable
person would find highly offensive. (Facts - When)The bank employee
admitted that he looked at Loh See Mah's banking records over a period of
10 months for personal reasons, unrelated to the bank's business.
(Questions - Does) Was this act an invasion of Loh See Mah's privacy
entitling her to damages?”
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Continue…
• Under-does-when and multi-statement
formats are tailor-made for mixed question of
law and fact – Predictive Writing
• But these formats may not work well in Non-
Predictive Writing or when the question
concerns only the finding of historical facts.
There is no “under” to address.
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Summary
Issue statements (sometimes referred to as Questions
Presented) should:
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Continue…
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How many sub-issues do I need?
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Example
• The rule is that a defendant commits house-trespass if he
enters into or remains in any building, tent or vessel used
as a human dwelling or any building used as a place for
worship, or as a place for the custody of property and
commits criminal trespass therein.
• Legal Question: Whether the client can be convicted of
“house-trespass” under section 442 Penal Code.
• The issue is then broken into sub-issues by finding each
element or “component part” that may need to be
analyzed.
• The order looks something like this:
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Order of Issue and Sub-Issues
• ISSUE STATEMENT for the MAIN/GLOBAL ISSUE
“Did the client commit house trespass when…(add legally
significant facts)”
o Sub-issue 1: Whether (structure in question) is a
“building…”
o Sub-issue 2: Whether (structure in question) is a human
dwelling.
o Sub-issue 3: Whether the client entered into or remained
in the (structure in question)
o Sub-issue 4: Whether the client committed criminal
trespass in the (structure in question)
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Another Example (under US law)
• The Rule: A person is guilty of criminal sale of a controlled
substance if he makes a knowing sale and the product is any
quantity of a controlled substance.
• The Main Issue: Is defendant guilty of criminal sale of a
controlled substance when he … (add legally significant facts)
o Sub-issue A: Did defendant make a sale of a controlled
substance when he … (add legally significant facts)
o Sub-issue B: Did defendant know he made the sale of a
controlled substance when he ... add legally significant facts)
o Sub-issue C: Was the product any quantity of a controlled
substance in that … (add legally significant facts)
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Another Way to Draft Sub-Issues
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Example
DISCUSSION/ANALYSIS
Sub-issue 2: I The second issue is did the client “enter into” the dwelling.
R
(E)
A
C
• CONCLUSION as to GLOBAL ISSUE
Therefore, because of the mini conclusions in the sub-issues, client committed house-trespass.
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Another Example (US Law)
• DISCUSSION
Main Issue: Can the client be guilty of criminal possession of a
controlled substance in the seventh degree?
Under Penal Law § 220.03, “A person is guilty of criminal
possession of a controlled substance in the seventh degree when
he knowingly and unlawfully possesses a controlled substance.”
Sub-Issue 1: Did the defendant possess a controlled substance
when he…?
(proceed with analysis of sub-issue)
Sub-Issue 2: Was the possession unlawful when he …?
(proceed with analysis of sub-issue)
Sub-Issue 3: Did the defendant knowingly possess the
controlled substance when he …?
(proceed with analysis of sub-issue)
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Sub-Issues as Sub-Headings in Discussion
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DISCUSSION
ISSUE 1: Did the defendant commit larceny if…(add legally significant facts)
Whether Defendant is guilty of larceny depends on whether the facts support
the four elements of larceny: (1) taking, (2) carrying away, (3) the property of
another, (4) with intent to permanently deprive the owner of possession. [Cite
law for this definition].
(Subheading):
1. Defendant did "Take" the Purse
The first issue is whether Defendant did "take" the purse. Under the
definition of larceny, a person "takes" property when he or she "lays hold
or grasps it." [Cite law]. There is no dispute that Defendant grasped the
purse in his hands, and thus satisfied the "taking" element.
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(Subheading):
Third, there is no dispute that the purse was the "property of another." Mrs.
Harris will testify that she owned the purse. Defendant in effect admitted he
did not own it when he told the officer he planned to turn it into the police.
(Subheading):
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(Argue prosecution’s case:) Circumstantial evidence supports finding that the
Defendant had the intent to deprive. Before picking up the purse, he looked
around, perhaps to avoid being seen. He did not report the lost purse to the
store manager. He put it into his car and drove away. When stopped by a
policeman, Defendant did not volunteer that he had the purse. These facts
show that Defendant intended to keep the purse, at least until he had a chance
to check its contents.
(Argue the defense case:) On the other hand, Defendant will testify that he
planned to turn the purse into the police. If a jury believes his testimony, then
that evidence alone would be enough to acquit him, because it would show he
lacked the intent to deprive. [Cite law on reasonable doubt raised by
defendant's testimony]. Also, according to the policeman, Defendant left the
purse in plain view and did not deny having the purse when asked. This
evidence shows that Defendant was not hiding the purse, and thus is evidence
showing lack of intent to commit the crime. [Cite law on general intent to
commit crime].
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(Subheading):
93
Sub-issue to Sub-issue?
• As a general rule, do not go below the sub-issue level.
• Two levels of issues are almost always sufficient to parse a
legal question and allow your readers to follow your analysis.
• If you must, use this example, based on Sub-issue 4 above.
Example:
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Thank You
(Issue-finding is challenging and
extremely important to legal
analysis, so you should practice
framing issues as often as possible.)
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Further readings:
• Persuasive Issue Statements at
https://www.law.georgetown.edu/academics/academic-programs/legal-writing-sc
holarship/writing-center/upload/Geenberg-Weingast-Issue-Statement.pdf
• Question Presented at
https://www.law.gwu.edu/sites/www.law.gwu.edu/files/downloads/Ques
tionPresentedTipSheet.pdf
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