Tuesday, October 28, 2014

More Thoughts on the Hobby Lobby Brief

I’ve talked before about strategies employed by the litigants in the Hobby Lobby case, decided by the Supreme Court earlier this year. Today, I’m focusing on some additional techniques employed by Paul Clement in his brief on behalf of Hobby Lobby.

The Conjurer
Hieronymus Bosch
 via Wikimedia Commons
The best advocates work hard to make their briefs interesting and readable and often pepper them with distinctive, memorable words and phrases. In the Hobby Lobby brief, Paul Clement offers some of these gems:

-“The government’s attempt to drive a wedge between the Greens and their businesses—where only the former have rights and only the latter suffer burdens—is a misguided shell game.”
-The “draconian” penalties against the Greens for non-compliance

-The government “offers a fig leaf….”

-The “unadorned term” person applies to both for profit and non-profit corporations.

-The government’s “tortured standard”

-The government’s brief is a “masterpiece of obfuscation.”

-The contraceptive mandate is "honeycombed with religious and secular exceptions."

In Point Made, Ross Guberman talks about adding interest and readability to briefs by including short, pithy sentences. Clement also excels in this strategy:

-“The contraceptive-coverage mandate violates Respondents’ RFRA rights.”

-“Both the Greens and their businesses can sue under RFRA.”

-“Quite obviously that is not true here.”

-“The question is simply whether the law burdens religious exercise.”

Numbers, percentages, and statistics can be powerful tools for writers, but too much of this type of information distracts, rather than enlightens the reader. Clement uses numbers and percentages strategically to make good points:

-“The ACA is an exceptionally complex piece of legislation with many novel, overlapping mandates and exemptions. The Act’s 10 titles stretch over 900 pages and contain hundreds of provisions.”

-“Based on the government’s own estimates, the contraceptive-coverage requirement presently does not apply to tens of millions of people. (55% of large employer plans would retain grandfathered status in 2013); (36% of Americans covered through their employers were in grandfathered health plans in 2013).”

-“Respondents face fines of $100 per affected individual per day, which could total over $1.3 million per day, or close to $475 million per year. If Respondents drop insurance altogether, they would face annual penalties of $2,000 per employee, or more than $26 million.”

Next week I’ll examine some strategies employed by HHS in its brief.

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