[q]uestions that use an either-or
or an open-ended format are weaker because they appear equivocal . . . .” Fischer, Judith, D., Got Issues? An Empirical Study about Framing Them
, at 22. That being said, I have noted quite a few successful either-or questions in the 2010 Term.
These three examples help show the various argumentative tones a question can take.
Should triple-hearsay evidence be admitted and considered by district courts when sentencing a defendant under the Federal Sentencing Guidelines?
This example is straightforwardly objective. It does not hint at the correct answer. Such questions are acceptable. But check out these questions:
Did the district court err by admitting and then considering triple-hearsay evidence that substantially increased petitioner’s sentence under the Federal Sentencing Guidelines?
Did the district court properly exercise its wide sentencing discretion in admitting triple-hearsay evidence at the sentencing hearing and using that information to construct a sentence within the range set by the Federal Sentencing Guidelines?
The following two examples state the same legal question as the first example, but they lean you toward the favorable answer; one towards defense counsel, the other towards the prosecution. Such questions are preferable, because it places your case in the proper frame.
Now let’s look at the use of these strategies in some of my favorite QP’s from the 2010 Supreme Court Term.
The “simplicity” of the year award goes to Dan Himmelfarb of Mayer Brown. In CSX Transporation Inc. v. McBride, he wrote:
Whether the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60, requires proof of proximate causation.
Very few questions contain such few words and yet remain so easy to understand.
The “I’d like to pleasantly remind the Court that they have unfinished business” award goes to Robert Owen from the University of Texas School of Law in Skinner v. Switzer.
For ten years, Henry W. Skinner has sought access to DNA testing that could prove him innocent of the murders that landed him on Death Row. After the Texas courts arbitrarily turned back his diligent attempts to take advantage of state statutes affording him such relief, he sued in federal court under 42 U.S.C. § 1983 to vindicate his due process right to “‘fundamental fairness in [the] operation’” of Texas’s scheme. Dist. Att’y’s Office v. Osborne, 129 S. Ct. 2308, 2320 (2009) (citation omitted). The district court dismissed Mr. Skinner’s § 1983 suit solely on the ground that his claim sounded only in habeas corpus, and the Fifth Circuit summarily affirmed. The question presented is the same one the Court granted certiorari in Osborne to decide, but left unresolved:
May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?
When the Court grants an issue but fails to decide it and you are raising that identical issue, it is always beneficial to point that fact out. The same strategy worked for Seth Waxman in the 2009 Term.
The “answer seems obvious” award goes to Justice, then Solicitor General, Elena Kagan, who in NASA v. Nelson wrote this QP:
Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.
After reading this QP, one could make the case that NASA v. Nelson could be decided without reading another word. That’s the hallmark of a great QP.
The “let’s squeeze in the lower court conflict” award is split two-ways. Our very own CockleBur Contributor, Dan Ortiz, exemplifies this technique in Borough of Duryea v. Guarnieri.
Whether the Third Circuit erred in holding that state and local government employees may sue their employers for retaliation under the First Amendment’s Petition Clause when they petitioned the government on matters of purely private concern, contrary to decisions by all ten other federal circuits and four state supreme courts that have ruled on the issue.
As does Seth Waxman’s QP in Turner v. Rogers.
Whether the Supreme Court of South Carolina erred in holding–in conflict with twenty-two federal courts of appeals and state courts of last resort—that an indigent defendant has no constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration.
Lower court conflicts are the primary door for cert petitioners to slide through, and if your case raises a split, you should “shout it out loud” throughout your petition, starting with the QP.
Now it’s time for my top three QP’s of the 2010 Term. Coming in at number three is a petition prepared by Peter Keisler and Carter Phillips of Sidley Austin in the American Electric v. Connecticut case. In the QP below, I removed the introductory paragraph and questions two and three.
Whether States and private parties have standing to seek judicially-fashioned emissions caps on five utilities for their alleged contribution to harms claimed to arise from global climate change caused by more than a century of emissions by billions of independent sources.
The genius of this QP is in what it implies: that the lower court’s decision is ridiculous. One of the questions involved in American Electric was standing. Specifically, can Connecticut and the other states show an injury traceable to the petitioners’ utility plants? The Roberts’ Court has a well-known proclivity for preventing litigation that is more properly within the legislative ken, and that is, no doubt, why they added the term “judicially-fashioned” into the QP. The Sidley Austin team also adds the capstone of the entire case: how could global warming be traceable to five utilities out of “more than a century of emissions by billions of independent sources?”
Bravo, Sidley Austin.
The runner-up award goes to Theodore Boutrous, Jr. of Gibson, Dunn & Crutcher. His QP in Wal-Mart v. Dukes is outstanding.
In a sharply divided 6-5 decision that conflicts with many decisions of this Court and other circuits, the en banc Ninth Circuit affirmed the certification of the largest employment class action in history. This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart’s approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Wal-Mart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy.
The questions presented are:
I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.
II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.
Where to start with this one? While the actual questions are rather mundane, the brilliance of this QP is in the setup. The theme the attorneys most wanted to stress was the broad scope of the class certification both in numbers and in historical context. With this QP, they accomplished that goal.
And anyone reading the intro paragraph understands that this case meets all of the Court’s criteria for certiorari. The case involves: 1) a lower court division; 2) a large number of people; 3) a staggering amount of money; and most importantly, 4) the NINTH CIRCUIT.
This QP combines a whole argument section worth of facts and certworthiness arguments into a single paragraph. That is not an easy feat to accomplish.
Mr. Boutrous’ QP was stellar.
But the winner goes to . . .
Former Solicitor General Paul Clement in Bond v. United States.
Petitioner admitted that she tried to injure her husband’s paramour by spreading toxic chemicals on the woman’s car and mailbox. Instead of allowing local officials to handle this domestic dispute, the federal prosecutor indicted petitioner under a federal law, 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ obligations under a 1993 treaty addressing the proliferation of chemical and biological weapons. Facing a sentence of six years in prison, petitioner challenged the statute and her resulting conviction as exceeding the federal government’s enumerated powers and impermissible under the Tenth Amendment. Declining to reach petitioner’s constitutional arguments, and in acknowledged conflict with decisions from other courts of appeals, the Third Circuit held that, when the state and its officers are not party to the proceedings, a private party has no standing to challenge the federal statute under which she is convicted as in excess of Congress’s enumerated powers and in violation of the Tenth Amendment.
The question presented is:
Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.
Once again, the genius of this QP is in the setup. Whereas the QP in Wal-Mart hits you over the head with the unprecedented scope of the certification order, the QP here is more . . . elegant, which is a hallmark of Clement’s writing.
Clement paints a picture of a truly local criminal case transformed into a federal offense—a federalism argument that several of the conservative Justices would find appealing. He also explains—but not overtly so—how the law used to prosecute Bond was enacted for a far different purpose than prosecuting a local dispute involving a scorned lover. And he highlights that lower courts are divided on the issue.
Somehow, the QP and the petition come across as a worthy vehicle of the Court’s time without yelling it. That’s a hard trick to pull off. But Clement did.