Example 11.6

Takeaway point 11.6: Your Table of Contents can and should reflect arguments in the alternative.

Your Table of Contents can signal to judges that you are making an argument in the alternative.

This Table of Contents comes from a famous recent case: the dispute at the Supreme Court over the Affordable Care Act, or “Obamacare.” The Affordable Care Act requires millions of Americans to buy health insurance or pay a penalty that increases their tax liability. The Act was challenged as exceeding Congress’s powers. Below, we see the skeleton of the government’s arguments from the key brief in the case, which raised two alternative theories as to why Congress acted within its constitutional powers.

Source: The federal government’s “minimum coverage provision” brief in HHS v. Florida, 132 S. Ct. 2566 (2012).

Court rules differ about which sections must appear in a brief. In addition to checking the rules, study other lawyers’ recent or similar briefs (or motions) filed in the same court to spot problems with your own filing. This specific section is perfunctory; the detailed discussion of the case’s procedural history appears at the end of the statement.

As we saw in Chapters 1, 2, 3, and 6, facts can argue. Here, the facts begin by recounting the problems that necessitated the Affordable Care Act.

Notice that the brief forgoes chronological order: it discusses the law that Congress enacted and then discusses prior efforts.

Chapter 13 discusses how to prepare a strong Summary of Argument.

The term “minimum coverage provision” might be unfamiliar to some readers; avoid using unfamiliar terms in your headings. In this case, however, the Justices were quite familiar with this legal issue.

WARNING! Ideally, every heading should be easily comprehensible. The phrase “the financing of participation” is hard to absorb because it is a double “nomi- nalization” — it uses the gerund “financing” and the noun “participation” rather than telling readers who acted. See Chapter 16, Tip 6 (discussing nominalizations). This subheading, however, does a lovely job of camouflaging a policy argument.

Avoid using case names in a heading unless the cases are likely to be familiar to the court (as these two would be) or unless a particular case so governs your dispute that the court will need to consider it.

This heading may be the most important line in any brief filed in this millennium. The government lost on its primary argument, but won on this one. Notice that the second argument is consistent with the first: the government argues that it wins on both grounds.

The language in these two subheadings is complicated. Try instead to mimic the light, simple writing in subheading II.A of this brief.

This brief raises only two arguments, but numerous other arguments in the case were briefed separately. When a case becomes complicated, remember that courts have the discretion to schedule a case in stages. If your case is getting too complicated, consider filing a motion that asks the court to separate the proceedings or to stagger the briefing schedule. Resist passivity and press courts to administer cases in a way that favors your clients. (That process is easiest with trial courts.)