Example 3.4
Takeaway point 3.4: Your Statement of Facts may explain — in nonargumentative language — your case’s key statutory or regulatory issue.
Facts can contain law. This will strike some lawyers as counterintuitive, but when a case involves a complicated statutory or regulatory scheme (or some other unfamiliar law), you help judges when you explain the relevant law right away rather than forcing them to wait ten, twenty, or even thirty pages until the Argument.
And there’s an additional payoff: your Argument can begin with an actual argument rather than a dry explanation of how the law works. Make your discussion of the law seem even-handed, but frame the law in a way that favors your client. Be wary, however, of using this technique when your case revolves around a well-known legal issue, as your explanation of the law is unlikely to seem helpful to judges.Here, Michigan enacted statutes that required Michigan-based subsidiaries of national banks to register in Michigan, to pay fees to Michigan, and to submit periodic financial statements to Michigan. A national bank, Wachovia, challenged the Michigan statutes, arguing that the National Bank Act and federal banking regulations preempted (i.e., voided because of a conflict) the state legislation. As you read the following excerpt, notice how masterfully Wachovia frames its case within a larger historical framework. The seemingly neutral summary of the banking law not only informs readers but also advances Wachovia’s theory of this case — that letting states burden out-of-state banks is dangerous.
Source: Wachovia’s brief in Watters v. Wachovia Bank, N.A., 550 U.S. 1 (2007).
This is an effective case citation — and it appears in the Statement of Facts.
Wachovia explains the unfamiliar term “visitorial powers”; once again, readers are likely to be grateful for the explanation. Yet the definition also introduces the term in a way that suggests (without saying so) that laws which regulate how a bank conducts business — such as Michigan’s — are preempted by the National Bank Act. The brief plants in readers’ minds a definition of this critical term — visitorial powers — that favors Wachovia. The brief even gilds the lily by adding an old Supreme Court opinion that hints that tradition is on Wachovia’s side, implying that history has shown the perils of letting states regulate national banks.
Wachovia masterfully chooses examples from famous and critical moments in U.S. history to show the perils of letting states regulate banks. Michigan’s laws seem banal — are filing reports really as fearsome as undercutting Union banks during the Civil War? But Wachovia has subtly tapped into the menace that state regulation can pose so that readers will think of the worst-case scenario: an open war by states on out-of-state banks. Separately, Wachovia uses the term “hostile” three times in three sentences, priming readers to think that state banking regulations are anathema to good national banking policy. The brief alludes to the famous holding of McCulloch v. Maryland, 17 U. S. 316 (1819), which struck down a tax that Maryland levied on out-of-state banks. The “theory” of this case is that Michigan’s statutes are a modern-day analogue of the Maryland state tax in McCulloch (and should, similarly, be struck down). Raising the specter of this famous case (and the risks that the McCulloch Court saw in letting states burden out-of-state banks) once again makes a strong subliminal argument. This excerpt is an expert act of weaving law, history, and policy together into a passage that seems fairly neutral.