David Zimmer, Eric Citron, Edwina Clarke
• Introduction: Framing Possibilities in Niz-Chavez v. Garland
• Questions To Ask In Framing An Appeal
• Incorporating Your Theme Into Briefing And Oral Argument
• Niz-Chavez Redux: What happened?
• Additional Case Studies
• Q&A
• Question Presented
– To initiate removal proceedings, the government must serve “a notice to appear.” The statute requires that the “notice to appear” include specific information, including the “time and place” of proceedings.
– When the statute was passed in 1996, the government interpreted the statute to require that this information all be in one document.
But it turned out to be challenging to provide the “time and place” information in the initial notice, so for years the government used a separate notice.
– The question presented was whether the statute permits multiple notices or requires one notice document.
• Possible themes
– QP has a massive impact focused on the most sympathetic cases: Where removing a noncitizen parent would create “extreme and unusual hardship” to U.S.-citizen children.
– Textual and structural arguments: References to “a notice” and “the notice” imply a specific notice document; other statutory provisions only make sense if there is one notice document.
– Agencies run amok: Government knew what it was supposed to do, found it hard, and thought it could get away with taking an easier path.
• Who are you trying to convince?
– Do you know your judges?
– Which judge(s) are likely already on your side?
– Which judge(s) are likely never going to rule for you?
– What will resonate for the judge(s) you need?
– Cater to swing voters who are persuadable, not votes you already have or will never get.
• Is your story fundamentally a factual one or a legal one?
– Is the law clearly on your side or are you trying to clear up ambiguity?
– How sympathetic are your facts?
– What is the most powerful reason you win?
• What role does the standard of review play?
• Consider what happened below.
• Theme does not need to exactly pair up to a legal argument; can be more a big-picture framing device.
• Theme should come through right away in the opening.
• Try, when possible, to tie as many arguments as possible into theme.
• Don’t abandon strong arguments just because they don’t fit perfectly into the general theme.
Have a couple points you must get out.
1 Open in a way that highlights your theme.
2 Return to your theme when possible, but let judges’ questions be your guide.
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3 Be ready to answer questions on the weaknesses in your case that theme was designed to avoid.
• Recall three possible themes:
– Impact on families with U.S.-citizen kids
– Statutory text/structure
– Agencies run amok and ignoring statute
• Who are you trying to convince?
– Liberal Justices likely on our side.
– Alito and more pragmatic conservative Justices likely against us.
– Gorsuch and other agency skeptics likely key vote
• What is likely to appeal to those judges?
– Not going to be moved by appeals to sympathetic cases.
– Text/structure helpful.
– Story about the law and the agencies’ disregard of it very appealing.
• Decided to focus on third theme.
• Battle to overrule Quill Corp. v. North Dakota.
– Issue: Can States make out-of-state retailers collect and pay the sales tax on items they ship to in-state purchasers?
– Court had said no twice, but noted it was keeping a dubious rule for stare decisis reasons.
– Thematic Question: Why overrule this case now?
– Other side’s argument: This is just too hard.
– Our theme: This is easy in internet age, and the State had worked to make it easier.
– N.B. Other side’s argument in Quill: state supreme courts don’t get to overrule SCOTUS, only SCOTUS can do that.
– Our response: Told SD Supreme Court to rule against us before asking for certiorari.
• Unorthodox approach to briefing.
• Generally, you don’t want your TOC to look like this.
• But I think they are trying: II.A is easy way out; II.B-G + III.A-D the punishment if
II.A not chosen.
• Question: Do sustained overdraft fees count as “interest” under the National Bank Act.
• Regulatory definition of “interest”:
– The term “interest” as used in 12 U.S.C. 85 includes any payment compensating a creditor or prospective creditor for an extension of credit, making available of a line of credit, or any default or breach by a borrower of a condition upon which credit was extended.
• OCC letter suggesting that sustained overdraft fees are not “interest.” Lots of district courts had relied on this letter.
• Plaintiffs focused largely on quibbling about what the letter said and how broadly it stretched, trying to get narrow win.
• Was that the right approach?
