Friday, April 25, 2014

How To Write a Brief, By Paul Clement

This amicus brief by Paul Clement on behalf of the American Beverage Association (the other, other ABA) in POM Wonderful v. Coca-Cola is a masterpiece. The formal legal question -- on which I express no opinion -- is whether a party can bring a suit under the Lanham Act (which governs false advertising) regarding a label of a product regulated under the Food, Drug, and Cosmetic Act. POM's lawsuit accuses Coca-Cola of mislabeling a drink as "Pomegranate Blueberry" juice when it contains just .3% pomegranate juice and .2% blueberry juice (it is 99% apple and grape juice).

And when you put it that way, it sounds really bad! There's an old saying amongst lawyers that when the law is on your side, pound on the law, and when the facts are on your side, pound on the facts (and when neither is on your side, pound on the table). These facts sound very bad for Coca-Cola (99% juices other than the two prominently displayed on the label), so the conventional wisdom would be to bang on the law and downplay the facts.

My theory of advocacy, however, has always been the opposite -- go on offense where your opponent thinks they're strongest. "Offense" is important -- the strategy only works if you argue that the point they think is their ace really, truly, obviously favors your own side. Even if you don't persuade the audience, it has a neutralizing effect -- it makes it seem like the issue is at best a single or a double for the other side rather than they're home run.

I digress. The point I want to make is that Clement starts with what seem to be awful facts, and deftly explains why labeling juices from the perspective of volume may not make a lot of sense. It is clear, lucid, and intuitive -- no small feat given how incongruous the position seems at first glance.

If one is looking for a model of how to write a brief, this is one to do it. It is a masterclass of the art.

Tuesday, April 22, 2014

JK, Seattle

Some selected passages from Parents Involved v. Seattle School District No. 1:
The present cases are before us, however, because the Seattle school district was never segregated by law. . . . The justification for race-conscious remedies in McDaniel[v. Baressi, 402 U.S. 39 (1971)] is therefore not applicable here. The dissent's persistent refusal to accept this distinction—its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, "devised to overcome a history of segregated public schools," post, at 2825-2826—explains its inability to understand why the remedial justification for racial classifications cannot decide these cases.
127 S. Ct. 2733, 2761 (2007) (plurality).
Seattle has no history of de jure segregation; therefore, the Constitution did not require Seattle's plan.

Though the dissent cites every manner of complaint, record material, and scholarly article relating to Seattle's race-based student assignment efforts, post, at 2839-2841, it cites no law or official policy that required separation of the races in Seattle's schools. Nevertheless, the dissent tries to cast doubt on the historical fact that the Seattle schools were never segregated by law by citing allegations that the National Association for the Advancement of Colored People and other organizations made in court filings to the effect that Seattle's schools were once segregated by law. See post, at 2803-2805, 2812. These allegations were never proved and were not even made in this case. Indeed, the record before us suggests the contrary.
127 S. Ct. 2738, 2771 & n.7 (2007) (Thomas, J., concurring).

As it happens, the history of Seattle schools vis-a-vis segregation also made an appearance in today's Schuette opinion:
Although there hadbeen no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that“permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 807–808 (2007) (BREYER, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure segregation. Specifically,the complaint alleged “that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.” Id., at 810. As part of a settlement with the Office for Civil Rights, the school board implemented the “Seattle Plan,” which used busing and mandatory reassignments between elementary schools to reduce racial imbalance and which was the subject of the state initiative at issue in Seattle. See 551 U. S., at 807–812.
If I were Justice Breyer I'd be inclined to lob a molotov cocktail through the window, but sure, concur in the judgment instead. At least Justice Sotomayor identifies the contradiction in footnote 9 of her dissent (and Justice Scalia does so as well in footnote 2 of his concurrence).

As for me, it's amazing how the much more trusting we are of democratic decision-making on racial issues when the ultimate decision seems to favor White people. The contrast between Schuette, on the one hand, and Parents Involved and Shelby County is so stark as to be blinding. The people, through the democratic process, decide that racism is no longer a serious problem? Democracy in action. The people, through the democratic process, declare the opposite? That's what we have courts for -- to shield powerless majorities from such intolerable insults upon their character. Once again, we can credit Scalia for his honesty -- he puts Carolene Products squarely in his cross-hairs -- possibly the first truly negative citation that venerable footnote has seen since its 1938 inception.