§ 22. Use the "deep issue" to spill the beans on the first page.



In your own words, state the principal issue decided by a court in a published opinion. Use the deep-issue technique.


Find a judicial opinion that takes several paragraphs before getting to the point. Rewrite the opening paragraph with a more satisfactory opener. If you're part of a writing group or class, bring a copy of both versions for each colleague.


Take a published case that includes a dissenting opinion. Frame the deep issue decided by the majority. Then frame the most nearly corresponding issue that a dissenter would have wanted. If you're working in a group, be prepared to discuss the basic disagreement between the two sides. Below is an example of how you might frame divergent issues on the same point:

#1 Missouri's Spill Bill imposes liability on a "person having control over a hazardous substance" during a hazardous-substance emergency. Binary Coastal, as a landowner, controlled its land when it installed gasoline tanks and then leased the land to a service station. In February 2000, a hazardous-substance emergency occurred on the land. Was Binary Coastal a "person having control"?

#2 Missouri's Spill Bill imposes liability specifically on "a person having control over a hazardous substance" during a hazardous-substance emergency. In January 2000, Binary Coastal leased some land to a service station but had nothing to do with day-to-day operations or with the activities involving hazardous substances. In February, Binary Coastal's lessee experienced a release of hazardous substances. Did Binary Coastal have control of these substances at the time of release?

And here's an example from a published casei--one in which no judge dissented. Yet you might well conclude that the hypothetical dissent (#2) is the better view.

#1 Under principles of statutory construction, when statutes are in conflict, the specific controls over the general. In 1986, the Legislature narrowly tailored the retirement statutes so that a retiree over the age of 55 who decided on a lump-sum payment of benefits would forfeit certain other benefits. The Equal Employment Opportunity Commission now claims that this amendment is impermissible in light of the 1963 age-discrimination statute, which is broadly worded. Which statute controls?

#2 Since 1963, the statutory law of this state has prohibited age discrimination. Yet in 1986, the Legislature amended the retirement statutes in a way that forced retirees over the age of 55 to forfeit some of their benefits if they chose a lump-sum payment--but allowed those under 55 to make this choice with no such penalty. Did the Legislature intend this anomalous reversal of its long-held policy against age discrimination?

i. Nebraska Equal Opportunity Comm'n v. State Employees Retirement Sys., 471 N.W.2d 399 (Neb. 1991).

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