App
Ad Notes
Using persuasive techniques
The
law is the important thing. Writing the
statement of facts and the question presented each help you write the other
one. To cite to the Appendix to the
Petition for Writ of Certiorari, do “Pet. App. 12” or something. It’s best to have a citation to the record
for every fact, or at least every fact that’s significant to your argument. What legal conclusions do you want your
reader to draw? What facts are relevant
to each of those legal conclusions? Make
them feel like they thought of it. Don’t
argue with the facts in the statement of facts.
The
reader is not a computer. They will make
inferences from the facts you provide. Also,
their own biases and prejudices will come into it. How can you use your facts to overcome
prejudices? You can use
juxtaposition. You put together two
facts that, taken together, will make you infer something. Don’t use this technique to create an
impression that you know is wrong. You
might not want to use adverbs. You can
characterize the facts a certain way if the facts themselves support the
characterization.
Brainstorm
about facts that are bad for our side: She is using marijuana. She’s allergic to THC. She didn’t grow the marijuana herself. She has resorted to buying it off the street
before. How can we make a “buddy fact”
for each of the two bad facts? She is a
state-sanctioned, tightly controlled pot smoker and she’ll die without it. It’s not used recreationally. She’s not the stereotypical pot smoker, or at
least we think she’s not.
What
about questions presented? Courts look
at these questions first. These
questions give the court a “picture” of your case. They want to see the issue, facts, and legal
context. You can also use persuasive
techniques. The end is the position of
emphasis. You also can’t assume the element
at issue. Put in facts that will make
them start inferring things that are good for you. Don’t write a question that provides an
inaccurate depiction of the facts. It
can be technically correct but still misrepresent the facts. You need a theme in your oral argument.
Adjunct meeting
Standard
of review can be before the argument or in it.
We should include the standard of review for preliminary injunctions
(look up Supreme Court cases). If it’s
in your argument, have a title: “standard of review”, and no more than a
paragraph. It’s trendy, but not
required, to have another level that’s “intro” before the standard of
review. This could be repetitive with
the summary of the argument. You might
put your heavy-hitting policy stuff and setting the tone in this section.
So
the outline goes:
I.
Intro
II.
Standard of Review
III.
Preliminary Injunction
a. Likelihood of success on the
merits (most important) – Commerce Clause (Lopez
categories, get to third one: substantial effects test, four factors)
b. One or three preliminary
injunction elements (depending on which case you use) – you could put them all
here or split them up. You don’t need a
whole lot here. You might find a case
that defines irreparable harm. The
others are harder to research. Balance
of burdens, and public policy are the other two.
Before
the argument, you have TOC, TOA, summary of argument, facts, (standard of
review), then argument. The standard of
review is abuse of discretion. There is
a preliminary injunction case based on the constitutionality of a statute. So you can get the standard and the setup
there. It will come up if you put in “preliminary
injunction” close to “standard of review”.
When you’re looking up standard of review for future cases, put in your
procedural setup, then within, for example, 15 of “standard” and 15 of
review. You could do the same with “summary
judgment”, for example.
Look
at circuit court cases trying to work with Lopez
and Morrison. For example, McCoy. And there are a bunch
more that come down on both sides. They
tried to use “economic endeavor”. Find
language that tells you that. Look in
circuit court cases for what language they pick out. Use them as examples. They are helpful.
How
about the link between interstate and intrastate commerce? If it’s an economic activity, then you can
aggregate for purposes of determining a link between interstate and
intrastate. Consider Wickard where they piled on wheat, a
national commodity, therefore an economic endeavor. Once they say it’s an economic endeavor, they
can go to great lengths to find an interstate connection. You could say there is no economic endeavor,
or assume, arguendo, that there is an
economic endeavor, but say that there is too much attenuation.
What
about the “but for” test? “But for” the
local activity, the interstate market would not exist. That’s how Morrison put it together. “But
for the local marijuana use, the national market for marijuana would not exist.” This wasn’t found in McCoy. If people didn’t eat
and grow wheat locally, there wouldn’t be a national market in it. We’re not looking for the medical necessity defense
because it wasn’t raised below here. It
can’t be, because marijuana users are suing the government, not the other way
around. We’re also not using Ninth and Tenth
Amendment arguments. You can use them in
general federalism arguments (like related to findings, etc.) but we don’t need
a separate section for the Ninth or Tenth Amendment.
Only
do a little research on the last three elements of preliminary injunction. Mostly look at the merits.
Here
are some picky things. Don’t say “so and
so person believes such and such”, just say “such and such is true”. Don’t use words like “believe” and “feel”.
For
table of authorities, use alphabetical or separated by courts, then
alphabetical.