Participant's Guide: Listing the Cited Cases

Listing the Cited Cases

Just as you transcribed the codes referenced by the board in discussion, you must also transcribe the referenced cases into tables.

The tables of referenced cases go just beneath the code tables. Once again, they are used to transcribe the precedents used to support the conclusion, the precedents that conflict with the conclusion, and the precedents in the board's discussion that neither directly support nor directly conflict with the board's conclusion.

Each table has seven columns that detail how each case was used in the discussion.

Case

This column simply lists each case cited by the board. These case numbers are listed at the top of the case, so you can just copy them and paste them into the table, each starting its own row.

Citation Type

Use this column to record how the case was cited, whether as an analogous precedent, as a distinguishing precedent, or as a relevant, but not controlling case.

Analogous Precedent: An analogous precedent is a cited case that, by certain similarity to the current fact situation, argues for the same conclusion in both. A cited case should be labelled as an analogous precedent when: (1) the board cites it because it is very similar, at a thematic or perhaps detailed level, to the current fact situation and (2) the board argues that the conclusion in the cited case (i.e., ethical or unethical) should be followed in the current case. (Important Note: Notice that by this definition a cited case can be an analogous precedent even if its facts are quite different from the current case. The key is that the cases are similar at a conceptual or abstract level.) (Examples: 77-11 [cited cases 76-5, 75-15], 79-2 [cited case 63-6], 88-1 [cited case 69-13-C])
Distinguishing Precedent: A distinguishing precedent is a cited case that essentially provides a counter-example to the current fact situation; it supports an opposite conclusion. A cited case should be labelled as a distinguishing precedent when: (1) the board cites it because it is similar, at either a detailed or thematic level, to the current case, (2) despite the similarities, the board notes at least one key distinction between the cases, and (3) the board argues that the conclusion in the cited case (i.e., ethical or unethical) should not be followed in the current case. (Examples: 79-5 [cited case 72-11], 83-1 [cited case 77-11], 88-1 [cited case 85-6])
Relevant, But Not Controlling: A Relevant, But Not Controlling case is an earlier case that is relevant, in some way, to the current case but not to the extent that it "controls" or directly supports the board's decision in the current case. The earlier and current cases may share a general issue, principle, or perhaps some facts. However, with a "Relevant, But Not Controlling" citation the board does not argue that the current case should or should not follow the earlier conclusion. Typical situations in which to use this designation are: cases cited in passing, cases cited to illustrate a general point, and cases cited for any reason other than as analogous or distinguishing precedents. (Important Note: You should only use the "Relevant, But Not Controlling" tag in the transcript section with the heading: "... information that neither directly supports nor directly conflicts with their conclusion." By definition, "Relevant, But Not Controlling" cases can neither directly support nor directly conflict with the board's conclusion.) (Examples: 72-4 [cited cases 62-10, 62-18, 64-9], 85-4 [cited cases 76-3, 82-2, 82-6])
Unknown: If you cannot tell from the discussion that one of the above terms is more appropriate you can enter this value.

You may also need to include special status modifiers to indicate the relative importance of cited cases. If the board's discussion cites several cases (and/or codes), but one of the cases seems to have more bearing than the others (or other codes), include the "More Importance" modifier in the "Citation Type" column. If one or more of the cited cases seem to have less bearing, include the "Less Importance" modifier. These importance values are optional. They should only be used when the relative importance of cases is made obvious in the board's discussion. (Examples: 71-4 [cited case 63-6])

How Cited

There are two possible values for this column.

Explicitly Discussed: If the board cites the case, and also discusses its relevance to the case, enter this value in the "How Cited" column. (Examples: 92-9 [cited case 77-3], 92-4 [cited case 88-6])
Referenced Only: If the board cites the case, but does not discuss its relevance to the case, enter this value in the "How Cited" column. This can occur when the board cites a case in passing but then does not discuss it, other than to broadly categorize it. (Example: 67-1 [cited cases 62-7, 62-21, 63-5])

Grouped With

If the case is mentioned along with other cases, list the numbers of those cases here. If the case is not grouped with others, enter "None" in this column. (Examples: 92-4 [cited cases 65-12, 82-5], 92-6 [cited cases 89-7, 90-5])

Q #

The cited case usually will be cited as part of the discussion concerning a particular questioned fact. List the number of the questioned fact in this column.

Why Relevant?

Since for cases there is no analogue to the code representation, you will need to write a statement (or statements) in your own words that expresses the relevancy of this case to the current case. These statements should have the same structure and style as the statements from the code representation, and they should be placed between the two caret characters (i.e., "^") provided in the transcript template. Also, as before, text you create yourself should be surrounded by percentage signs (i.e., "%"); place the percentage signs around each individual statement.

After the statement of relevancy, indicate in brackets (i.e., "[" "]") the numbers of the facts that support your choice.

If you are unable to determine why the case was cited (often this occurs in the third, "neither supports nor conflicts", table) enter "Unknown" in this column. This may be because the code was erroneously cited by the board, or cited briefly with insufficient discussion.

After each statement, indicate in brackets (i.e., "[" and "]") the numbers of the facts that support it. If no fact from the chronology table directly supports it, but it is supported by text in the discussion, one of three values can go in the brackets instead of a number (note that these are the same values that can be used with cited codes):

Hypo: Use this value when the board makes an explicit assumption in their analysis. There must be some text in the discussion section that supports the idea that this is an assumption. Keys to look for are the words "assuming that ...", "provided that ...", and "if we assume ..." etc. If you use the "Hypo:" value, you must also include the portion of the discussion that includes the assumption. Copy the relevant quote from the case, and paste it inside the brackets, after the value "Hypo:". You may edit the quote to remove parts of the discussion that are not relevant. (Examples: 65-9 [cited case 63-6], 79-2 [cited case 65-9])
Unstated assumption: Use this value when it appears that the board may have made an assumption, but did not explicitly state the assumption in the discussion section. In this kind of situation, you may infer that the board has made an "unstated assumption" that allows the case to be relevant, violated, or not violated. (Examples: 79-2 [cited case 65-9], 88-7 [cited case 63-6])
Inference based on facts: Use this value when it appears that the board inferred a new fact or facts based on existing facts. Inside the brackets, list the facts that act as the basis for this inference, followed by the "Inference based on facts" designation. (Examples: 72-4 [cited case 62-10], 77-11 [cited case 75-15])

Why Distinguished or Analogous?

Following the statement of relevancy are statements delineating how a cited case is similar (analogous) or different (distinguished) from the current case.

Again, you will need to write a statement (or statements) in your own words that expresses the distinguishing or analogous points. These statements should have the same structure and style as the statements from the code representation, and they should be placed between the two caret characters (i.e., "^") provided in the transcript template. Also, don't forget to surround each individual statement with percentage signs (i.e., "%").

After the statement, indicate in brackets (i.e., "[" "]") the numbers of the facts that support your statement. Alternatively, you can indicate one of the three values discussed in the previous section (i.e., Hypo, Unstated assumption, Inference based on facts).

If the cited case is tagged as "Relevant, But Not Controlling," there likely will not be any points to enumerate here. For these cases, enter "NA" for "Not Applicable" in this column.

Before you continue, you should save your transcript file.

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