Friday, January 24, 2014
After my and Tonya's original posts on drafting questions presented, I asked a research assistant to pull all of the questions presented from the merits briefs filed with the Supreme Court during its 2012 term. Basically, I wanted to see what types of QPs parties are submitting to the Court (at least during that limited time frame).
Overall, parties filed 170 merits briefs during the 2012 term. That number includes only the initial merits briefs filed by petitioners and respondents. Here’s a summary of some of the things I found:
- I broke the QPs into two basic categories: (1) single-sentence QPs; and (2) deep-issue QPs. “Single-sentence QPs” are exactly what they sound like. “Deep issue QPs” are QPs that (a) start with facts, law, or facts and law, (b) then pose the question the court is being asked to answer. In this very basic breakdown, 113 of the briefs had single-sentence QPs, 55 had deep-issue QPs, and 2 had no QPs at all.
- For the deep-issue QPs, most resembled the examples found in Gressman et al.’s Supreme Court Practice. Specifically, they included (1) an introductory paragraph that summarized the important facts, law, or facts and law, (2) after the intro paragraph, the statement “The questions presented are:”, and (3) the questions the court was being asked to answer, usually in the “whether” format. Here’s an example from the petitioner’s brief in American Trucking Associations v. City of Los Angeles:
Title 49 U.S.C. § 14501(c)(1), originally enacted as a provision of the Federal Aviation Administration Authorization Act of 1994, provides that “a State [or] political subdivision…may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier…with respect to the transportation of property.” It contains an exception providing that the express preemption clause “shall not restrict the safety, regulatory authority of a State with respect to motor vehicles.” The questions presented are:
Whether an unexpressed “market participant” exception exists in Section 14501(c)(1) and permits a municipal governmental entity to take action that conflicts with the express preemption clause, occurs in a market in which the municipal entity does not participate, and is unconnected with any interest in the efficient procurement of services.
Whether permitting a municipal governmental entity to bar federally licensed motor carriers from access to a port operates as a partial suspension of the motor carriers’ federal registration, in violation of Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 (1954).
- For the single-sentence QPs, the overwhelming majority were “whether” questions (some started with “does” or “under”). Also, I attempted to break the single-sentence QPs into “short, neutral” and “short, aggressive” categories (based on the categories in Noah Messing’s The Art of Advocacy). My attempt here was admittedly unscientific, but I think my categorizations were fairly accurate. Overall, I put 53 of the 113 in the “short, aggressive” category and the remaining 60 in the “short, neutral” category.
- In 8 of the 77 cases heard by the court in the 2012 term, the parties submitted identical QPs.
- Consider this a footnote: I mentioned above that I pulled all of the QPs from the merits briefs. There were a handful of exceptions where I had to look to the cert petition or to the response to the cert petition to get a party’s QP. In other words, sometimes a party would include a QP in the cert petition or response to a cert petition, but not in the merits brief.