When Utah sued the federal government over the 2000 census, a census-taking technique called “hot-deck imputation” was on the hot seat. Utah was none too happy to have lost a representative based on its population estimate, so it argued that “imputation”—inferring who lives in a residence by looking at like neighbors—was essentially “sampling,” which is prohibited by statute.
At the oral argument, the Court seemed receptive to the State’s argument. But then Solicitor General Ted Olson stood up and tossed out the following “metaphor,” as he called it:
[Say] the Court asked the library of this Court to ascertain the number of books […], but sampling was not permitted to do that, so that the librarian could not go to every third shelf, multiply, count the books, multiply by three and get the census.
But if the librarian went to those shelves and counted every particular volume and found that there was a space here on that shelf, a space this big on the next shelf, and a space this big on another shelf, for example, the imputation would be saying, “Well, all the books or the books right next to this are this size, and therefore that space a book is missing, so we know we have a book, and we will impute one book to that space or two books to [that] space.”
So that the sampling technique is completely discrete from the imputation technique.
The Justices’ skeptical tone softened. “I’d like to understand this better,” said Justice Breyer. “In the library, you look and see that everything around the book is a history book and so then you impute the characteristic of being a history book to the one that’s missing. That’s your analogy of what goes on here, is that right?”
As you can guess, the federal government eventually won the case.
Some say you should reserve your best analogies for oral argument, but by then it may be too late. That’s why many of the best-known brief-writers sprinkle in the occasional example or analogy that crystallizes an abstract principle, provokes the reader’s thinking, or both.
Perhaps the boldest and riskiest strategy is to pin your entire case on an analogy, as David Boies and Joshua Rosenkranz do below at the start of their recent Federal Circuit brief for Oracle in Oracle v. Google, a dispute over the Droid smartphone:
Ann Droid wants to publish a bestseller. So she sits down with an advance copy of Harry Potter and the Order of the Phoenix—the fifth book—and proceeds to transcribe. She verbatim copies all the chapter titles—from Chapter 1 (“Dudley Demented”) to Chapter 38 (“The Second War Begins”). She copies verbatim the topic sentences of each paragraph, starting from the first (highly descriptive) one and continuing, in order, to the last, simple one (“Harry nodded.”). She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droid’s Harry Potter 5.0. The knockoff flies off the shelves.
J.K. Rowling sues for copyright infringement. Ann’s defenses: “But I wrote most of the words from scratch. Besides, this was fair use, because I copied only the portions necessary to tap into the Harry Potter fan base.”
Obviously, the defenses would fail.
Defendant Google Inc. has copied a blockbuster literary work just as surely, and as improperly, as Ann Droid—and has offered the same defenses . . . .
Although both Google and the court will no doubt poke holes in this whimsical analogy, the writing still puts Google on the defensive while affording Oracle and its lawyers a vivid and enduring theme. (Oracle’s gambit worked: It won its appeal this May.)
Other times, you might weave an analogy into the body of your argument. Let’s take an example from a brief that some of the then-Justices said was the best they’d ever seen. The brief from Alaska v. EPA was written by Chief Justice Roberts, then just John Roberts, who suggested that deciding which technology is “best” for controlling air pollution under the Clean Air Act is sort of like . . . asking people to pick the “best” car:
Determining the “best” control technology is like asking different people to pick the “best” car. Mario Andretti may select a Ferrari; a college student may choose a Volkswagen Beetle; a family of six a mini-van. A Minnesotan’s choice will doubtless have four-wheel drive; a Floridian’s might well be a convertible. The choices would turn on how the decisionmaker weighed competing priorities such as cost, mileage, safety, cargo space, speed, handling, and so on.
Of course, not all analogies and examples need to strike at the heart of your case. Also consider giving readers a mental landmark for abstractions such as numbers, as Nancy Abell and a Gibson Dunn team did for Wal-Mart here:
[T]he district court concluded that their pay and promotion claims were representative of those that might be asserted under Title VII by each and every female Wal-Mart store employee in the United States over a six-year period—more than 1.5 million women, a group that outnumbers the active duty military personnel in the Army, Navy, Marine Corps, and Air Force combined. The size of the putative class exceeds the entire population of at least 12 of the 50 States.
As Morgan Chu did for the abstract word “products” here in Tessera v. United Test and Assembly Center:
The truth is that United Test and Assembly Center would like to litigate this case in a vacuum, presenting it as a sort of bloodless logic puzzle in which accepting Tessera’s contract interpretation means that UTAC is paying on products (yo-yos? Chia pets?) that have little or nothing to do with any licensed Tessera patents.
And as Senator Ted Cruz, then the Texas Solicitor General, did with a bit of whimsy in a Ten Commandments case here in Van Orden v. Perry:
It is not at all clear how, standing in the midst of the Capitol Grounds’s many stone monuments, an observer would reasonably understand the State to be officially endorsing the command, “Thou shalt not make to thyself any graven images.” Nor is it clear how an observer would reasonably understand the State to be endorsing the command to “Remember the Sabbath day, to keep it holy.” For example, no one would reasonably think that the State has adopted a position, one way or the other, on whether the Dallas Cowboys should continue playing professional football on Sundays or whether the Texas Longhorns should continue playing college football on Saturdays (notwithstanding the seriousness, and even religious fervor, with which Texans approach their football, it would be a stretch to describe the game as “holy”).
Finally, when you want to stress the pragmatic effects of an adverse ruling, examples can help stir a sleeping judge. As Judge Posner has advised, “[Y]ou should explain not only what the case is about and what the background law is about, but also why the case is important (or unimportant)—what if anything turns on the outcome, either for the parties or for some larger community.”
In seeking to get Arthur Andersen’s corporate conviction overturned, for example, Maureen Mahoney drilled down on jury instructions for what it meant to “knowingly corruptly persuade.” She paraded all manner of communications that could be deemed felonies were the government’s approach to prevail:
In addition to the retention policies discussed above, the [jury] instructions given here would make any of the following into a felony:
- A mother’s advice to her son that he should assert his Fifth Amendment privilege not to testify before a grand jury, because his testimony would incriminate him;
- A manager’s instruction to a custodian of records not to comply with a voluntary request for documents from the SEC;
- A CEO’s instruction to her company’s general counsel to assert, not waive, the company’s attorney-client privilege in response to an SEC subpoena;
- An attorney’s advice to her client to answer only the question posed and not to volunteer information; or
- An in-house attorney’s suggested deletions of potentially damaging statements in a draft memorandum prepared by a colleague.
Closer to our own day, Paul Clement took a similar tack in his brief against the Affordable Care Act’s individual mandate:
How much easier, for example, to support the price of wheat by compelling individuals to purchase wheat than to devise an elaborate system of subsidies and quotas and limit on-farm consumption to prevent an indirect effect on prices. And how much easier to stimulate the economy and promote the automobile industry by compelling new car purchases rather than by merely offering incentives, such as “cash for clunkers.”
Originally published as a guest posting at The Volokh Conspiracy.