Example 7.3

Takeaway point 7.3: Organize textual arguments like doctrinal arguments: build your affirmative case and then rebut the other side’s position.

Once you explain the textual arguments that support your client, you need to rebut textual arguments that disfavor your client.

We see below an example of how to respond to the other side’s reliance on a canon. A number of hedge funds wanted to hide their coordinated attempt to seize control of a major railroad. Federal law, however, appeared to require the hedge funds to alert the target railroad that they were working with other groups to seize control of the company. The funds failed to do so. (Think of the hedge funds as wolves slipping as close to their prey as possible before springing their attack.) The railroad used the funds’ failure to disclose their plan to try to block the wolf pack from voting its shares. The hedge funds’ argument turns on the phrase “beneficial owner,” which they argue renders the next section of the statute superfluous. But courts generally refuse to read statutes in a way that renders any term meaningless, which is called the canon against superfluity. The following passage attacks that canon.

Source: Brief for hedge funds from CSX Corp. v. Children’s Investment Fund Management (UK) LLP, 292 Fed. App’x 133 (2d Cir. 2008).

This metaphor — based on the point that a belt renders suspenders superfluous — is a common term among lawyers who draft contracts.

The lawyers realize that, to win, they need to make superfluity seem normal and common: that will render their argument plausible. So they focus on well-known examples, even though the subject matter of the authorities that they cite is totally different. All judges will be familiar with aiding and abetting, and there’s really no debate over whether the meanings of these terms overlap. This passage demonstrates how a well-known example can help to rebut your adversary’s argument, even when the example has nothing to do with the case’s subject matter.

While this language is dicta, the quotation is directly on point from the Supreme Court. Using it reflects stellar research and excellent instincts, as the lawyers realize that a good citation will add vital credibility to an argument that might otherwise seem implausible. The lawyers recruit to their cause both recent and time-tested cases. Case law supports their textual argument.