Section 12.5 Multiple Questions
Takeaway point 12.5: You can raise multiple issues in a brief, but avoid raising more than four.
What if your case has multiple, distinct issues? List multiple Questions. Adding too many Questions, however, will frustrate judges and make them skeptical of your position, so avoid including more than four of them, even if adhering to this limit requires you to bundle and merge your issues.
Beyond that number, judges report that they presume that your arguments probably lack merit. We see below a case implicating several distinct issues, so the lawyers, sensibly, posed three separate questions to the Court. Pay attention to the sequence: which issue would provide the biggest payoff? Which entailed the greatest chance of winning? If the order of these Questions were reversed, would the broader legal claims seem less credible?
| Example 12.5.a | 1. Whether the First Circuit correctly held that the Massachusetts Burma Law, Mass. Gen. Laws ch. 7, §§ 22G-22M — which was undisputedly enacted to condemn the Nation of Myanmar and to influence the conduct of its government — unconstitutionally infringes upon the federal government’s exclusive authority to regulate foreign affairs. |
| 2. Whether the Massachusetts Burma Law, which discriminates against foreign commerce, violates the “speak-with-one-voice” principle, and seeks to regulate extraterritorial activity in a foreign nation, violates the Foreign Commerce Clause. | |
| 3. Whether the Massachusetts Burma Law, which upsets the delicate balance established by federal Myanmar sanctions, is preempted by federal law. |
The above Questions about the Massachusetts law place the two broadest arguments before the narrower issue.
First, they argue that there is a categorical constitutional prohibition against states’ meddling in foreign affairs (whether or not Congress acts). The Supreme Court had largely evaded that issue for two centuries, so the Court probably did not want to declare a broad ban on state power. The second question is also broad: Massachusetts sought to avoid doing business with any company that dealt with Myanmar, so this issue sought to impose broad restrictions on how states spend their own money. But the third question is narrower and would apply only to this specific law and other instances in which Congress had imposed sanctions. (If you were frustrated by the unfamiliar information in these Questions — what’s the Massachusetts Burma Law? What’s the “speak-with-one-voice” principle? — consult Chapter 16, Tip 8, to learn how to avoid using terms that readers will not know.)The lawyers won this case unanimously based on the argument in Question 3. Did the lawyers nearly bungle the case by putting their winning argument last? Hardly.
Admittedly, many lawyers offer advice like this: “In a case involving multiple issues, put the strongest issues first.” That advice is alluring — and often correct — but you also need to attune yourself to the flow of your arguments, to the relative payoff of each argument, and to the iterative nature of making multiple arguments. Making a narrow (but strong) argument early all but admits that a subsequent, big argument is preposterous. And the potential rewards of fairly weak argument might be too great to place the strongest argument first: as Learned Hand observed with his famous B > PL formulation, probability matters, but so does the potential payout. Thus, you might place a long-shot $100 million argument before a rock-solid $50,000 argument simply because you want the Court to focus on the claim that would allow your client to buy a yacht. Rather than raising your strongest arguments first, begin with the argument with the highest expected payoff for your client — whether that payoff is economic, doctrinal, injunctive or some other form of victory.
Similarly, you might need to deal first with some threshold issue (such as jurisdiction, standing, mootness, ripeness, abstention doctrines, immunity from suit, or the political question doctrine). And some losing arguments set up winners; for instance, if you have an argument that is precluded by law but that makes a reader want you to win, you might put it before the more viable, but less compelling argument. The sequence of Questions, as discussed in Chapter 11, is a mix of art and science.The three Questions about Massachusetts’s Burma Law comply admirably with this advice. Placing the biggest arguments before the narrower Question made the broad arguments more credible. And placing the bigger arguments first probably made the Court eager to avoid allowing states to tamper with foreign affairs. Resolving the case on the third Question was the narrowest way to prevent states from embroiling the nation in showdowns and skirmishes with foreign nations. The first two Questions thereby motivated the justices to resolve the case based on preemption, the third Question.
When possible, each Question Presented should present an independent basis for victory — a series in which any of the issues, answered in your client’s favor, will sink an opponent’s case. The above Questions comport with this principle. Cases often buckle when each Question depends on a favorable resolution of the prior Question. Do your best to spare your client from needing to prevail on multiple issues. One is hard enough sometimes.
Finally, you will rarely ask a court to overrule itself. If you do that more than once or twice in your career, you’re either too precocious or you have a wonderful and challenging legal practice. But here’s an example of an outright request to abandon a prior opinion; this approach has the advantage of putting a court on notice that you’re trying to overturn (and not merely escape the tug of) a precedent. And it, too, shows a sensible sequencing of the arguments.
| Example 12.5.b | 1. Whether Petitioners’ criminal convictions under the Texas “Homosexual Conduct” law — which criminalizes adult, consensual same-sex intimate behavior, but not identical behavior by different-sex couples — violate the Fourteenth Amendment right to equal protection of the laws? |
| 2. Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? | |
| 3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled? |
Had the third Question appeared first, the brief would have basically admitted that the defendant could not win under existing case law. Instead, the brief first tries to win under existing law. Only then does it call on the Court to overrule its prior opinion.