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Introductions: When School Marms Attack

I've written here before about the qualities of a great introductory paragraph, how important it is to state your conclusions up front, get to the point and tell the reader the answer, and how a good introduction keeps your reader from feeling like they've been kidnapped. 

Here at the end of the Supreme Court term, when I'm trying to shake off my sloth and catch up on all the opinions that have come out, I must again wag my pedantic and prodigious finger. The Court does not always measure up. 

With a good introduction, I can tell what the case is about, what the issue is, how the issue comes out. 

With an inadequate introduction, I either get a garbled message or I am forced to read further to find out . . . whether I want to read further.

After the break we'll use some recent Supreme Court opinions as object lessons for what works, and what doesn't.

How long should an introduction be? Mrs. Jeffries, My AP English, teacher always said that our writing ought to be "skirt length"--long enough to cover the subject and short enough to be interesting. 

As applied to introductions, that means long enough to do at least three things:

  • Lay out something of the basic area of the law so I know where the battle field is.
  • State the issue, often in a way that signals which way it is (or ought) to be decided.
  • State the resolution of the issue, usually in a way that begins to persuade me that the resolution is correct. 

But does the Supreme Court always do that? Alas, no. Even the Court's best writers sometimes fall short.

There is no clearer writer on the Court than Justice Scalia. And yet, Scalia often does the "page turner" type of introduction--one that merely states the issue and then requires the reader to turn the pages of the opinion as if it were a political thriller to discover the resolution.

Take as an example the introduction to Wal-Mart Stores, Inc. v. Dukes

We are presented with one of the most expansive class actions ever. The District Court and the Court of Appeals approved the certification of a class comprising about one and a half million plaintiffs, current and former female employees of petitioner Wal-Mart who allege that the discretion exercised by their local supervisors over pay and promotion matters violates Title VII by discriminating against women. In addition to injunctive and declaratory relief, the plaintiffs seek an award of backpay. We consider whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2).

Not too long, but other than foreshadowing in the first sentence, it does not tell you how the issue comes out, nor even precisely what the issue is unless you can already quote FRCP 23, chapter and verse. 

Similarly, the introduction to Brown v. Entertainment Merchants Association:

We consider whether a California law imposing restrictions on violent video games comports with the First Amendment.

Uhm, OK. That's it? 

Yep. That's it. If you want more, you'll have to read more. 

On the opposite side of the spectrum is the TMI introduction---Too Much Information. It defines the issue and the resolution, but only after giving unnecessary factual and procedural detail about the case. Justice Ginsberg's introduction in Goodyear Dunlop Tires Operations v. Brown exemplifies that problem:

This case concerns the jurisdiction of state courts over corporations organized and operating abroad. We address, in particular, this question: Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiar- ies in the forum State?

A bus accident outside Paris that took the lives of two 13-year-old boys from North Carolina gave rise to the liti- gation we here consider. Attributing the accident to a defective tire manufactured in Turkey at the plant of a foreign subsidiary of The Goodyear Tire and Rubber Com- pany (Goodyear USA), the boys’ parents commenced an action for damages in a North Carolina state court; they named as defendants Goodyear USA, an Ohio corporation, and three of its subsidiaries, organized and operating, respectively, in Turkey, France, and Luxembourg. Good- year USA, which had plants in North Carolina and regu- larly engaged in commercial activity there, did not contest the North Carolina court’s jurisdiction over it; Goodyear USA’s foreign subsidiaries, however, maintained that North Carolina lacked adjudicatory authority over them.
A state court’s assertion of jurisdiction exposes defen- dants to the State’s coercive power, and is therefore sub- ject to review for compatibility with the Fourteenth Amendment’s Due Process Clause. International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945) (assertion of jurisdiction over out-of-state corporation must comply with “‘traditional notions of fair play and substantial justice’” (quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940))). Opinions in the wake of the pathmarking International Shoe decision have differentiated between general or all- purpose jurisdiction, and specific or case-linked jurisdic- tion. Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414, nn. 8, 9 (1984).
A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so “continuous and systematic” as to render them essentially at home in the forum State. See Interna- tional Shoe, 326 U. S., at 317. Specific jurisdiction, on the other hand, depends on an “affiliatio[n] between the forum and the underlying controversy,” principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation. von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analy- sis, 79 Harv. L. Rev. 1121, 1136 (1966) (hereinafter von Mehren & Trautman); see Brilmayer et al., A General Look at General Jurisdiction, 66 Texas L. Rev. 721, 782 (1988) (hereinafter Brilmayer). In contrast to general, all- purpose jurisdiction, specific jurisdiction is confined to adjudication of “issues deriving from, or connected with, the very controversy that establishes jurisdiction.” von Mehren & Trautman 1136.
Because the episode-in-suit, the bus accident, occurred in France, and the tire alleged to have caused the accident was manufactured and sold abroad, North Carolina courts lacked specific jurisdiction to adjudicate the controversy. The North Carolina Court of Appeals so acknowledged. Brown v. Meter, 199 N. C. App. 50, 57–58, 681 S. E. 2d 382, 388 (2009). Were the foreign subsidiaries nonetheless amenable to general jurisdiction in North Carolina courts? Confusing or blending general and specific jurisdictional inquiries, the North Carolina courts answered yes. Some of the tires made abroad by Goodyear’s foreign subsidiar- ies, the North Carolina Court of Appeals stressed, had reached North Carolina through “the stream of com- merce”; that connection, the Court of Appeals believed, gave North Carolina courts the handle needed for the exercise of general jurisdiction over the foreign corpora- tions. Id., at 67–68, 681 S. E. 2d, at 394–395.
A connection so limited between the forum and the for- eign corporation, we hold, is an inadequate basis for the exercise of general jurisdiction. Such a connection does not establish the “continuous and systematic” affiliation necessary to empower North Carolina courts to entertain claims unrelated to the foreign corporation’s contacts with the State.

Really? Is all that really necessary? I'm sure Justice Ginsberg would get cross with me if I started a brief that way. Why not something like this:

This case concerns the jurisdiction of state courts over corporations organized and operating abroad. We address, in particular, this question: Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum State?

Because the episode-in-suit, the bus accident, occurred in France, and the tire alleged to have caused the accident was manufactured and sold abroad, North Carolina courts lacked specific jurisdiction to adjudicate the controversy. Confusing or blending general and specific jurisdictional inquiries, the North Carolina courts nevertheless exercised jurisdiction based upon unrelated sales and activities in the forum. But a connection so limited between the forum and the foreign corporation, we hold, is an inadequate basis for the exercise of general jurisdiction. Such a connection does not establish the “continuous and systematic” affiliation necessary to empower North Carolina courts to entertain claims unrelated to the foreign corporation’s contacts with the State.

Then there is Justice Thomas, never known for wasting unnecessary words. He hits it just right, giving us the issue, the basics and the resolution, all in a short, terse paragraph, to wit, Janus Capital Group, Inc. v. First Derivative Traders:

This case requires us to determine whether Janus Capital Management LLC (JCM), a mutual fund investment adviser, can be held liable in a private action under Secu- rities and Exchange Commission (SEC) Rule 10b–5 for false statements included in its client mutual funds’ prospectuses. Rule 10b–5 prohibits “mak[ing] any untrue statement of a material fact” in connection with the pur- chase or sale of securities. 17 CFR §240.10b–5 (2010). We conclude that JCM cannot be held liable because it did not make the statements in the prospectuses.

And lest one think that only statutory cases lend themselves to such a terse treatment, witness Chief Justice Roberts in Arizona Free Enterprise Club's Freedom Club PAC v. Bennet. El Jeffe can even boil campaign finance and the First Amendment down to an understandable morsel:

Under Arizona law, candidates for state office who accept public financing can receive additional money from the State in direct response to the campaign activities of privately financed candidates and independent expenditure groups. Once a set spending limit is exceeded, a publicly financed candidate receives roughly one dollar for every dollar spent by an opposing privately financed candidate. The publicly financed candidate also receives roughly one dollar for every dollar spent by independent expenditure groups to support the privately financed candidate, or to oppose the publicly financed candidate. We hold that Arizona’s matching funds scheme substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment.

There it is: (1) what the state law does, (2) what the issue is and (3) how it is resolved. 

These last two are examples of what a court would require of a good brief. If you're going to lay 14,000 words on a busy judge, you'd best tell them where you're going. Unlike Justice Scalia, you can't insist they stay engaged with your prose to find out. And unlike the Goodyear opinion, you can't delay their gratification. The court will expect you to get to the point right off. 

So, when it comes to that next writing project, channel your inner Clarence Thomas or JGR 

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume I, Number 194
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About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm
Partner

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...

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