Example 9.4

Takeaway point 9.4: Learn to build credible "slippery slope” arguments, which show courts that permitting a fairly modest action in one case would open the door to drastic consequences in the future.

Another common policy argument is based on the "slippery slope” — the idea that reaching a decision in onecase will lead to more dangerous and extreme results in future cases. We see below a version of this argument from the case in which police, without a valid warrant, attached a GPS device to a suspect’s jeep to track his movements for an entire month. The passage also shows how to rebut the other side’s policy arguments.

Criminal defendant’s brief in, 132 S. Ct. 945 (2012).

This brief rebuts the other side’s suggestions that there is no evidence of actual harm and that courts should not restrain the government based on hypothetical risks.

The vintage of these opinions hints that this principle might be less compelling to modern courts because the scope of the Fourth Amendment has contracted since the late 1960s. But these cases are far better than nothing, and they enable the lawyers to quote the Supreme Court rather than asserting an unsubstantiated policy claim. Where possible, let courts or legislatures make your policy arguments.

These lawyers lack concrete evidence that the government has abused GPS technology. But they use the government’s silence to imply that GPS technology has already been abused. Then they point out that the government has admitted that its use of GPS technology has recently increased; the huge number of law enforcement officials in the country hints ominously at the risks of giving investigators unfettered power to use GPS to track citizens.

This footnote citing Orin Kerr shows the importance of knowing your judge: the lawyers probably predicted that Justice Kennedy would break a 4-4 tie in this case, and Professor Kerr is a former Kennedy clerk, making it more likely that Justice Kennedy would value his conclusions. Also, the source — a libertarian journal — is designed to signal tacitly to the Court’s conservative Justices that excessive governmental monitoring is a greater long-term risk than allowing a few petty criminals to go free. Profile your judges: study their opinions, their articles, their speeches, and their backgrounds to figure out which policy arguments will persuade them.

In Kyllo v. United States, the Court prevented the government from using thermal readings to detect unusually warm homes in order to locate and prosecute marijuana growers. The case presumably lacked a pithy, helpful quote, but the lawyers extracted something even more helpful: a concise and clear principle that helps their client. This approach is also recommended in Example 4.4.

Following one of this book’s most important principles, the lawyers already had built Jones’s affirmative case by this point. Only then do they counter the other side’s arguments. The first party to file a motion or brief usually gets a chance to file a reply, so that party’s opening filing does not need to predict and rebut the other side’s arguments, except for the key points. But the second party, (typically the appellee or the respondent) will ordinarily file only one brief, so it needs to counter all of the arguments raised by the other side. Rebuttals should generally be concise: a single sentence that fells the adversary’s point is better than fifteen middling points.