WALKTHROUGH
The Principles
START
LEVEL UP YOUR WRITING WALKTHROUGH
gerow v. Walters Justice Elena Kagan
Interactive Walkthrough
W1: The Principles
Cassirer v. Thyssen-Bornemisza Collection
– Justice Elena Kagan
Page 1
Page 2
Page 3
Page 4
APRIL TERM, 2022
(Slip Opinion)
SUPREME COURT OF THE UNITED STATES
CASSIRER, V. THYSSEN-BORNEMISZA COLLECTION FOUNDATION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
Justice KAGAN delivered the opinion of the Court. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1602 et seq., a foreign state or instrumentality is amenable in specified circumstances to suit in an American court. In this case, the plaintiffs brought such a suit to recover expropriated property. The question presented is what choice-of-law rule the court should use to determine the applicable substantive law. The answer is: whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party. Here, that means applying the forum State’s choice-of-law rule, not a rule deriving from federal common law. Although the legal issue before us is prosaic, the case’s subject matter and background are anything but. At issue is the ownership of an Impressionist painting depicting a Paris streetscape: Camille Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain. Pissarro’s agent sold the painting in 1900 to Paul Cassirer, a member of a prominent German Jewish family owning an art gallery and publishing house. Some quarter century later, Lilly Cassirer inherited the painting and displayed it in her Berlin home (as also pictured in the appendix).
-1-
APRIL TERM, 2022
(Slip Opinion)
But in 1933, the Nazis came to power. After years of intensifying persecution of German Jews, Lilly decided in 1939 that she had to do anything necessary to escape the country. To obtain an exit visa to England, where her grandson Claude Cassirer had already relocated, she surrendered the painting to the Nazis. The underlying question in this case—which this opinion will not resolve—is whether the Cassirer family can get the painting back. The post-war search for Rue Saint-Honoré was a long one. Lilly and Claude, who both eventually ended up in the United States, had no success tracking down the painting. After being legally declared the rightful owner, Lilly agreed in 1958 to accept compensation from the German Federal Republic—about $250,000 in today’s dollars. (The painting is now thought to be worth tens of millions.) In fact, Rue Saint-Honoré was nearby: Like the Cassirers, the painting had also arrived in the United States after the war, and sat in a private collection in St. Louis from 1952 to 1976. In that year, the Baron Hans Heinrich Thyssen-Bornemisza (descended from the founder of a German steel empire) purchased the painting and brought it back to Europe. Rue Saint-Honoré hung at his residence in Switzerland until the early 1990s. At that time, the Baron sold much of his art collection, including Rue Saint-Honoré, to an entity the Kingdom of Spain created and controlled, called the Thyssen-Bornemisza Collection Foundation. In addition to financing the $300 million-plus purchase, the Spanish Government provided the Foundation with a palace in Madrid to serve as a museum for the collection. The museum, as museums do, published a catalogue of its holdings.
-2-
APRIL TERM, 2022
(Slip Opinion)
The complaint here asserted that the statute’s expropriation exception applied. That
exception removes immunity for cases involving “rights in property taken in violation of international law.” §
1605(a)(3). At a prior stage of this litigation, the courts below held that the Nazi confiscation of Rue Saint-Honoré brought Claude’s suit against the Foundation within the expropriation exception. That determination, which is no longer at issue, meant
that the suit could go forward. (Claude, though, would not live to see anything further; he passed away in
2010, and his heirs became the plaintiffs.) But go forward pursuant to what law? The courts had to decide whose property law (Spain’s?
California’s?) should govern
the suit, and thus determine the painting’s rightful owner. Resolving that question required application of
a choice-of-law rule—a means of selecting which jurisdiction’s law governs the determination of liability. Yet
there another issue lurked. For the parties contested which choice-of-law rule should apply—serving up, so
to speak, a choice of choice-of-law principles. The Cassirer plaintiffs urged the use of California’s choice-of-law
rule; the defendant Foundation advocated a rule based in federal common law. The courts below, relying
on a minimally reasoned Ninth Circuit precedent, picked the federal option. That federal choice-of-law rule, they further held, commanded the use of Spanish
(not Californian) property law to resolve the ownership issue. Finally, the courts below determined after a trial that under Spanish law the Foundation was the
rightful owner, because it purchased Rue Saint-Honoré without knowing the painting was stolen and had held
it long enough to gain title through possession.
-3-
4-5
APRIL TERM, 2022
(Slip Opinion)
The Cassirers sought our review, limited to a single issue: whether a court in an FSIA case raising
non-federal claims (relating to property, torts, contracts, and so forth) should apply the forum State’s choice-of-law rule, or instead use a federal one. We granted certiorari because that question has generated a split in the Courts of Appeals. The Ninth Circuit
stands alone in using a federal choice-of-law rule to pick the applicable substantive law. All other Courts
of Appeals to have addressed the issue apply the choice-of-law rule of the forum State. We agree with that
more common approach, and now vacate the judgment below. The FSIA, as indicated above, creates a uniform body of federal law to govern the amenability of
foreign states and their
instrumentalities to suit in the United States. The statute first lays down a baseline
principle of foreign sovereign immunity from civil actions. It then lists a series of exceptions
from that principle (including the expropriation exception found to apply here). The result is to spell out, as a matter of federal law, the suits against foreign sovereigns that
American courts do, and do not, have power to decide. Yet the FSIA was never “intended to affect the substantive law determining the
liability of a foreign state or
instrumentality” deemed amenable to suit. ... The path of our decision has been as short as the hunt for Rue Saint-Honoré was long; our ruling is as simple as the conflict over its rightful owner has been vexed. A foreign state or instrumentality in an FSIA suit is liable just as a private party would be. That means the standard choice-of-law rule must apply.
-4-
W1: The Principles
Start Over
The courts had to decide whose property law (Spain’s? California’s?) should govern the suit, and thus determine the painting’s rightful owner. The best legal writers constantly look for places to define terms or clarify concepts so that readers need to work as little as possible to get the point. Here, the Justice added a parenthetical so that readers wouldn’t possibly struggle to remember which laws we are talking about here—with bonus points for cutting legalese and just using a name and a question mark for a breezy conversation tone.
Guiding Constantly
At a prior stage of this litigation, the courts below held that the Nazi confiscation of Rue Saint-Honoré brought Claude’s suit against the Foundation within the expropriation exception. Using visual, concrete language to convey concepts is incredibly helpful for readers. It’s just so much easier for them to follow. A simple tool here is your verbs: Use active verbs that convey an easy-to-imagine action. Justice Kagan in this snippet is using a structure you should regularly steal from: The verbs convey movement (bringing something within something else). It’s easy to see and understand.
Visual Verbs
For the parties contested which choice-of-law rule should apply—serving up, so to speak, a choice of choice-of-law principles. You may wonder if wordplay is worth it. After all, we legal writers are busy. And sloppy wordplay is guaranteed to tarnish your credibility, not elevate it. But rhetorical style—like the clever wordplay at work in this snippet—can be worth the effort. Why? Because people remember it. So while most of us can’t craft every sentence with eloquence (and if we tried, it would quickly get ugly): Occasionally with a point that matters a lot to your document, it is worth brainstorming some ways to build a sentence that readers will remember. You’re not likely to forget the Justice’s “choice of choice-of-law” quip. And because you will remember that, the document actually gets a lot easier to understand. Because that’s what the whole legal issue is about: Choosing the choice-of-law.
Unusual Style
The courts below, relying on a minimally reasoned Ninth Circuit precedent, picked the federal option. That federal choice-of-law rule, they further held, commanded the use of Spanish (not Californian) property law to resolve the ownership issue. This snippet packs in several excellent style tools to learn from. First, notice how the Justice created a novel noun to add style flare to her sentence and make it memorable. We would normally write about a court using minimal reasoning to reach a decision. But the Justice surprises us by turning the verb into a noun: a “minimally reasoned Ninth Circuit” case. Surprises (done well and not as a distraction) engage us humans. Second, the Justice sticks to the label she set up earlier in the case, so we always know what she means by “choice of law” rule. Finally, she offers parentheticals with helpful tidbits again, reminding us of the dueling choice-of-law forums—because we are busy and distracted, so we probably don’t remember.
More Style
Resolving that question required application of a choice-of-law rule—a means of selecting which jurisdiction’s law governs the determination of liability. This is another example of writing for busy readers. You might think, well of course your readers know what a “choice of law rule” is. And maybe they do. But usually we assume are readers—even sophisticated legal readers—know more than they do. Or at least know more than they are likely to remember when quickly skimming through a brief. Reminding folks what terms of art or jargon means is just downright helpful. And if your readers are familiar with the concept, then great, they can skip it. But usually they appreciate the reminders.
Defining and Clarifying Redux
The question presented is what choice-of-law rule the court should use to determine the applicable substantive law. When you’ll be returning to a legal concept—particularly a confusing or complex one—consider giving it a descriptive shorthand so that readers can easily follow along. Here, Justice Kagan gives us a quick shorthand rather than drowning us in confusing legalese (like “the question presented is which law governing the choice of the appropriate remedy should...”).
Label What Matters
Rue Saint-Honoré in the Afternoon, Effect of Rain.... Don’t be tempted to define every term with a parenthetical and quotation marks—briefs aren’t drafting contracts. Justice Kagan will go on to mention this painting throughout the opinion. But she never sets up a defined term like (“The Painting”). She just uses the first few words, because she only talks about one painting named anything like this: so she knows no one is getting confused. Here is a reference on the next page: “The post-war search for Rue Saint-Honoré was a long one.”
Label What Matters
After being legally declared the rightful owner, Lilly agreed in 1958 to accept compensation from the German Federal Republic—about $250,000 in today’s dollars. (The painting is now thought to be worth tens of millions.) In fact, Rue Saint-Honoré was nearby: Like the Cassirers, the painting had also arrived in the United States after the war, and sat in a private collection in St. Louis from 1952 to 1976. Here we see more excellent storytelling techniques at work. Why does the Justice tell us the value in today’s dollars? Because we are curious! And it creates more buy-in for her audience who now is really paying attention to what should happen to this multi-million-dollar painting. Notice also how the Justice makes the painting a character, moving around and arriving places—personified to the point that its compared to people.
The Story
The answer is: whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party. Here, that means applying the forum State’s choice-of-law rule, not a rule deriving from federal common law. The introduction is your elevator pitch: What do you want your reader to understand? Justice Kagan is a master at distilling what matters into a quick sentence or two. Here, she uses conversational, simple language to break down all the legal analysis coming into a sentence: You apply the same choice-of-law rule to foreign states that gets applied to private parties. How easy was that?
Simple Takeaways
The post-war search for Rue Saint-Honoré was a long one. Usually you’re smart to start your sentences with a concrete subject, followed by a concrete action. But telling stories is one good reason to occasionally depart from that advice. Here, the Justice doesn’t want to focus on who was doing the searching (the real actor in the sentence). She wanted to focus on the pure span of time that passed on its own. So she made the search the subject (which brings along a the state-of-being verb “was” and a passive construction).
Passive on Purpose
Collection Foundation. In addition to financing the $300 million-plus purchase, the Spanish Government provided the Foundation with a palace in Madrid to serve as a museum for the collection. The museum, as museums do, published a catalogue of its holdings. Here we see more excellent storytelling techniques at work. Why do we need to know that this painting was given a palace to live in? It’s more storytelling magic: It’s the story about this painting and its life. It’s nearly all about engaging readers at this point. The story is so vivid, the Justice took what could be some bland procedural details about what was done to the painting, and turned it into a narrative. The upshot is we will actually remember these details when we get to the analysis later.
Details Readers Want
But in 1933, the Nazis came to power. After years of intensifying persecution of German Jews, Lilly decided in 1939 that she had to do anything necessary to escape the country. To obtain an exit visa to England, where her grandson Claude Cassirer had already relocated, she surrendered the painting to the Nazis. The underlying question in this case—which this opinion will not resolve—is whether the Cassirer family can get the painting back. Stories sell—there is rarely a case when you shouldn’t turn your factual background into a compelling story. Justice Kagan shows off several storytelling skills in this snippet: 1. A short sentence that sets the setting for this part of the story. 2. Using narrative to convey the passage of time. 3. Giving us details we are curious about because we are human readers: Like the reason that Lilly picked a particular location (to be close to family). 4. Understanding we would want to know who gets the painting—so taking a moment to make sure we aren’t distracted by waiting for an answer, and letting us know we aren’t getting it!
The Story
Under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1602 et seq., a foreign state or instrumentality is amenable in specified circumstances to suit in an American court. In this case, the plaintiffs brought such a suit to recover expropriated property. Welcome readers into your document by answering a simple question: What would a brand-new reader need to know to make sense of this document? You can see that Justice Kagan starts here by giving readers helpful context for the specific issue forming the crux of the case—there is a statute that allows people to sue foreign countries. The truth is, many readers probably don’t even know that’s a thing. You’ll also notice the Justice didn’t just give you a bunch of legalese or quotes from the statute: She just told you what it does.
Welcome Busy Readers
The Cassirers sought our review, limited to a single issue: whether a court in an FSIA case raising non-federal claims (relating to property, torts, contracts, and so forth) should apply the forum State’s choice-of-law rule, or instead use a federal one. Two tools really shine here, and they both work wonders for legal readers. First, offering a quick set of examples or hypothetical to illustrate a concept when spelling it out would be cumbersome. In the first highlighted snippet here, the Justice could have explained what non-federal claims were at length. But that didn’t really matter to the analysis. So she just gives us a few concrete examples in a parenthetical so that we instantly get a flavor. Second, the Justice didn’t need a comma in this class phrase. There isn’t a subject in it, and it’s not modifying the first part of the sentence. But she added the comma stylistically to set off the last point—as a contrast. People often struggle with commas in situations like this. When it will genuinely help readers, it’s not ungrammatical to add an extra comma like this. Just have a good reason!
Examples and Structure
The complaint here asserted that the statute’s expropriation exception applied. That exception removes immunity for cases involving “rights in property taken in violation of international law.” One of the easiest way to smoothly transition from sentence to sentence is to tell readers what word or concept from the last sentence is the main topic of the next sentence. You see Justice Kagan doing that here by beginning her second sentence with the “exception” she just ended her last sentence with. It’s as easy as that.
Echoing to Transition
The Ninth Circuit stands alone in using a federal choice-of-law rule to pick the applicable substantive law. All other Courts of Appeals to have addressed the issue apply the choice-of-law rule of the forum State. When you sit down to write a brief or motion (or opinion) you generally know where you want readers to end up. So spend some time considering how you can frame your points persuasively to prime readers for where you’re going. Here, the Justice is going to end up with the majority approach. So she primes us by highlighting this sole court “standing alone” in its position. We’re thinking, “well we don’t want to side with this lone court when all the other courts are going another direction.” It’s emotionally pushing us towards a goal before we even know where we’re going. Bonus points for the story-telling tool of personification: Courts can’t “stand alone” literally, but it’s a visual description.
Priming and Framing
The statute first lays down a baseline principle of foreign sovereign immunity from civil actions. It then lists a series of exceptions from that principle (including the expropriation exception found to apply here). The Justice smartly does two things in this passage: She chooses a subject she cares about and (even though it’s a statute) uses active verbs to carry out the action. She also stays consistent, sticking with that same subject from sentence to sentence so readers can follow along. This is particularly important when the subject isn’t a person.
Subjects Doing Things
The path of our decision has been as short as the hunt for Rue Saint-Honoré was long; our ruling is as simple as the conflict over its rightful owner has been vexed. A foreign state or instrumentality in an FSIA suit is liable just as a private party would be. That means the standard choice-of-law rule must apply. Don’t end with formalisms and useless patter. Readers pay attention to the conclusion (assuming you’ve kept them engaged this far, at least). Justice Kagan pulls out rhetorical moves—a metaphor that connects the decision with its subject matter, which is a master move. Then she sums up the thrust of the opinion in two sentences that make the bottom line easy to digest. Invest in your conclusions like this so that they add value and build your credibility.
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Transcript
WALKTHROUGH
The Principles
START
LEVEL UP YOUR WRITING WALKTHROUGH
gerow v. Walters Justice Elena Kagan
Interactive Walkthrough
W1: The Principles
Cassirer v. Thyssen-Bornemisza Collection
– Justice Elena Kagan
Page 1
Page 2
Page 3
Page 4
APRIL TERM, 2022
(Slip Opinion)
SUPREME COURT OF THE UNITED STATES
CASSIRER, V. THYSSEN-BORNEMISZA COLLECTION FOUNDATION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
Justice KAGAN delivered the opinion of the Court. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1602 et seq., a foreign state or instrumentality is amenable in specified circumstances to suit in an American court. In this case, the plaintiffs brought such a suit to recover expropriated property. The question presented is what choice-of-law rule the court should use to determine the applicable substantive law. The answer is: whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party. Here, that means applying the forum State’s choice-of-law rule, not a rule deriving from federal common law. Although the legal issue before us is prosaic, the case’s subject matter and background are anything but. At issue is the ownership of an Impressionist painting depicting a Paris streetscape: Camille Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain. Pissarro’s agent sold the painting in 1900 to Paul Cassirer, a member of a prominent German Jewish family owning an art gallery and publishing house. Some quarter century later, Lilly Cassirer inherited the painting and displayed it in her Berlin home (as also pictured in the appendix).
-1-
APRIL TERM, 2022
(Slip Opinion)
But in 1933, the Nazis came to power. After years of intensifying persecution of German Jews, Lilly decided in 1939 that she had to do anything necessary to escape the country. To obtain an exit visa to England, where her grandson Claude Cassirer had already relocated, she surrendered the painting to the Nazis. The underlying question in this case—which this opinion will not resolve—is whether the Cassirer family can get the painting back. The post-war search for Rue Saint-Honoré was a long one. Lilly and Claude, who both eventually ended up in the United States, had no success tracking down the painting. After being legally declared the rightful owner, Lilly agreed in 1958 to accept compensation from the German Federal Republic—about $250,000 in today’s dollars. (The painting is now thought to be worth tens of millions.) In fact, Rue Saint-Honoré was nearby: Like the Cassirers, the painting had also arrived in the United States after the war, and sat in a private collection in St. Louis from 1952 to 1976. In that year, the Baron Hans Heinrich Thyssen-Bornemisza (descended from the founder of a German steel empire) purchased the painting and brought it back to Europe. Rue Saint-Honoré hung at his residence in Switzerland until the early 1990s. At that time, the Baron sold much of his art collection, including Rue Saint-Honoré, to an entity the Kingdom of Spain created and controlled, called the Thyssen-Bornemisza Collection Foundation. In addition to financing the $300 million-plus purchase, the Spanish Government provided the Foundation with a palace in Madrid to serve as a museum for the collection. The museum, as museums do, published a catalogue of its holdings.
-2-
APRIL TERM, 2022
(Slip Opinion)
The complaint here asserted that the statute’s expropriation exception applied. That exception removes immunity for cases involving “rights in property taken in violation of international law.” § 1605(a)(3). At a prior stage of this litigation, the courts below held that the Nazi confiscation of Rue Saint-Honoré brought Claude’s suit against the Foundation within the expropriation exception. That determination, which is no longer at issue, meant that the suit could go forward. (Claude, though, would not live to see anything further; he passed away in 2010, and his heirs became the plaintiffs.) But go forward pursuant to what law? The courts had to decide whose property law (Spain’s? California’s?) should govern the suit, and thus determine the painting’s rightful owner. Resolving that question required application of a choice-of-law rule—a means of selecting which jurisdiction’s law governs the determination of liability. Yet there another issue lurked. For the parties contested which choice-of-law rule should apply—serving up, so to speak, a choice of choice-of-law principles. The Cassirer plaintiffs urged the use of California’s choice-of-law rule; the defendant Foundation advocated a rule based in federal common law. The courts below, relying on a minimally reasoned Ninth Circuit precedent, picked the federal option. That federal choice-of-law rule, they further held, commanded the use of Spanish (not Californian) property law to resolve the ownership issue. Finally, the courts below determined after a trial that under Spanish law the Foundation was the rightful owner, because it purchased Rue Saint-Honoré without knowing the painting was stolen and had held it long enough to gain title through possession.
-3-
4-5
APRIL TERM, 2022
(Slip Opinion)
The Cassirers sought our review, limited to a single issue: whether a court in an FSIA case raising non-federal claims (relating to property, torts, contracts, and so forth) should apply the forum State’s choice-of-law rule, or instead use a federal one. We granted certiorari because that question has generated a split in the Courts of Appeals. The Ninth Circuit stands alone in using a federal choice-of-law rule to pick the applicable substantive law. All other Courts of Appeals to have addressed the issue apply the choice-of-law rule of the forum State. We agree with that more common approach, and now vacate the judgment below. The FSIA, as indicated above, creates a uniform body of federal law to govern the amenability of foreign states and their instrumentalities to suit in the United States. The statute first lays down a baseline principle of foreign sovereign immunity from civil actions. It then lists a series of exceptions from that principle (including the expropriation exception found to apply here). The result is to spell out, as a matter of federal law, the suits against foreign sovereigns that American courts do, and do not, have power to decide. Yet the FSIA was never “intended to affect the substantive law determining the liability of a foreign state or instrumentality” deemed amenable to suit. ... The path of our decision has been as short as the hunt for Rue Saint-Honoré was long; our ruling is as simple as the conflict over its rightful owner has been vexed. A foreign state or instrumentality in an FSIA suit is liable just as a private party would be. That means the standard choice-of-law rule must apply.
-4-
W1: The Principles
Start Over
The courts had to decide whose property law (Spain’s? California’s?) should govern the suit, and thus determine the painting’s rightful owner. The best legal writers constantly look for places to define terms or clarify concepts so that readers need to work as little as possible to get the point. Here, the Justice added a parenthetical so that readers wouldn’t possibly struggle to remember which laws we are talking about here—with bonus points for cutting legalese and just using a name and a question mark for a breezy conversation tone.
Guiding Constantly
At a prior stage of this litigation, the courts below held that the Nazi confiscation of Rue Saint-Honoré brought Claude’s suit against the Foundation within the expropriation exception. Using visual, concrete language to convey concepts is incredibly helpful for readers. It’s just so much easier for them to follow. A simple tool here is your verbs: Use active verbs that convey an easy-to-imagine action. Justice Kagan in this snippet is using a structure you should regularly steal from: The verbs convey movement (bringing something within something else). It’s easy to see and understand.
Visual Verbs
For the parties contested which choice-of-law rule should apply—serving up, so to speak, a choice of choice-of-law principles. You may wonder if wordplay is worth it. After all, we legal writers are busy. And sloppy wordplay is guaranteed to tarnish your credibility, not elevate it. But rhetorical style—like the clever wordplay at work in this snippet—can be worth the effort. Why? Because people remember it. So while most of us can’t craft every sentence with eloquence (and if we tried, it would quickly get ugly): Occasionally with a point that matters a lot to your document, it is worth brainstorming some ways to build a sentence that readers will remember. You’re not likely to forget the Justice’s “choice of choice-of-law” quip. And because you will remember that, the document actually gets a lot easier to understand. Because that’s what the whole legal issue is about: Choosing the choice-of-law.
Unusual Style
The courts below, relying on a minimally reasoned Ninth Circuit precedent, picked the federal option. That federal choice-of-law rule, they further held, commanded the use of Spanish (not Californian) property law to resolve the ownership issue. This snippet packs in several excellent style tools to learn from. First, notice how the Justice created a novel noun to add style flare to her sentence and make it memorable. We would normally write about a court using minimal reasoning to reach a decision. But the Justice surprises us by turning the verb into a noun: a “minimally reasoned Ninth Circuit” case. Surprises (done well and not as a distraction) engage us humans. Second, the Justice sticks to the label she set up earlier in the case, so we always know what she means by “choice of law” rule. Finally, she offers parentheticals with helpful tidbits again, reminding us of the dueling choice-of-law forums—because we are busy and distracted, so we probably don’t remember.
More Style
Resolving that question required application of a choice-of-law rule—a means of selecting which jurisdiction’s law governs the determination of liability. This is another example of writing for busy readers. You might think, well of course your readers know what a “choice of law rule” is. And maybe they do. But usually we assume are readers—even sophisticated legal readers—know more than they do. Or at least know more than they are likely to remember when quickly skimming through a brief. Reminding folks what terms of art or jargon means is just downright helpful. And if your readers are familiar with the concept, then great, they can skip it. But usually they appreciate the reminders.
Defining and Clarifying Redux
The question presented is what choice-of-law rule the court should use to determine the applicable substantive law. When you’ll be returning to a legal concept—particularly a confusing or complex one—consider giving it a descriptive shorthand so that readers can easily follow along. Here, Justice Kagan gives us a quick shorthand rather than drowning us in confusing legalese (like “the question presented is which law governing the choice of the appropriate remedy should...”).
Label What Matters
Rue Saint-Honoré in the Afternoon, Effect of Rain.... Don’t be tempted to define every term with a parenthetical and quotation marks—briefs aren’t drafting contracts. Justice Kagan will go on to mention this painting throughout the opinion. But she never sets up a defined term like (“The Painting”). She just uses the first few words, because she only talks about one painting named anything like this: so she knows no one is getting confused. Here is a reference on the next page: “The post-war search for Rue Saint-Honoré was a long one.”
Label What Matters
After being legally declared the rightful owner, Lilly agreed in 1958 to accept compensation from the German Federal Republic—about $250,000 in today’s dollars. (The painting is now thought to be worth tens of millions.) In fact, Rue Saint-Honoré was nearby: Like the Cassirers, the painting had also arrived in the United States after the war, and sat in a private collection in St. Louis from 1952 to 1976. Here we see more excellent storytelling techniques at work. Why does the Justice tell us the value in today’s dollars? Because we are curious! And it creates more buy-in for her audience who now is really paying attention to what should happen to this multi-million-dollar painting. Notice also how the Justice makes the painting a character, moving around and arriving places—personified to the point that its compared to people.
The Story
The answer is: whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party. Here, that means applying the forum State’s choice-of-law rule, not a rule deriving from federal common law. The introduction is your elevator pitch: What do you want your reader to understand? Justice Kagan is a master at distilling what matters into a quick sentence or two. Here, she uses conversational, simple language to break down all the legal analysis coming into a sentence: You apply the same choice-of-law rule to foreign states that gets applied to private parties. How easy was that?
Simple Takeaways
The post-war search for Rue Saint-Honoré was a long one. Usually you’re smart to start your sentences with a concrete subject, followed by a concrete action. But telling stories is one good reason to occasionally depart from that advice. Here, the Justice doesn’t want to focus on who was doing the searching (the real actor in the sentence). She wanted to focus on the pure span of time that passed on its own. So she made the search the subject (which brings along a the state-of-being verb “was” and a passive construction).
Passive on Purpose
Collection Foundation. In addition to financing the $300 million-plus purchase, the Spanish Government provided the Foundation with a palace in Madrid to serve as a museum for the collection. The museum, as museums do, published a catalogue of its holdings. Here we see more excellent storytelling techniques at work. Why do we need to know that this painting was given a palace to live in? It’s more storytelling magic: It’s the story about this painting and its life. It’s nearly all about engaging readers at this point. The story is so vivid, the Justice took what could be some bland procedural details about what was done to the painting, and turned it into a narrative. The upshot is we will actually remember these details when we get to the analysis later.
Details Readers Want
But in 1933, the Nazis came to power. After years of intensifying persecution of German Jews, Lilly decided in 1939 that she had to do anything necessary to escape the country. To obtain an exit visa to England, where her grandson Claude Cassirer had already relocated, she surrendered the painting to the Nazis. The underlying question in this case—which this opinion will not resolve—is whether the Cassirer family can get the painting back. Stories sell—there is rarely a case when you shouldn’t turn your factual background into a compelling story. Justice Kagan shows off several storytelling skills in this snippet: 1. A short sentence that sets the setting for this part of the story. 2. Using narrative to convey the passage of time. 3. Giving us details we are curious about because we are human readers: Like the reason that Lilly picked a particular location (to be close to family). 4. Understanding we would want to know who gets the painting—so taking a moment to make sure we aren’t distracted by waiting for an answer, and letting us know we aren’t getting it!
The Story
Under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1602 et seq., a foreign state or instrumentality is amenable in specified circumstances to suit in an American court. In this case, the plaintiffs brought such a suit to recover expropriated property. Welcome readers into your document by answering a simple question: What would a brand-new reader need to know to make sense of this document? You can see that Justice Kagan starts here by giving readers helpful context for the specific issue forming the crux of the case—there is a statute that allows people to sue foreign countries. The truth is, many readers probably don’t even know that’s a thing. You’ll also notice the Justice didn’t just give you a bunch of legalese or quotes from the statute: She just told you what it does.
Welcome Busy Readers
The Cassirers sought our review, limited to a single issue: whether a court in an FSIA case raising non-federal claims (relating to property, torts, contracts, and so forth) should apply the forum State’s choice-of-law rule, or instead use a federal one. Two tools really shine here, and they both work wonders for legal readers. First, offering a quick set of examples or hypothetical to illustrate a concept when spelling it out would be cumbersome. In the first highlighted snippet here, the Justice could have explained what non-federal claims were at length. But that didn’t really matter to the analysis. So she just gives us a few concrete examples in a parenthetical so that we instantly get a flavor. Second, the Justice didn’t need a comma in this class phrase. There isn’t a subject in it, and it’s not modifying the first part of the sentence. But she added the comma stylistically to set off the last point—as a contrast. People often struggle with commas in situations like this. When it will genuinely help readers, it’s not ungrammatical to add an extra comma like this. Just have a good reason!
Examples and Structure
The complaint here asserted that the statute’s expropriation exception applied. That exception removes immunity for cases involving “rights in property taken in violation of international law.” One of the easiest way to smoothly transition from sentence to sentence is to tell readers what word or concept from the last sentence is the main topic of the next sentence. You see Justice Kagan doing that here by beginning her second sentence with the “exception” she just ended her last sentence with. It’s as easy as that.
Echoing to Transition
The Ninth Circuit stands alone in using a federal choice-of-law rule to pick the applicable substantive law. All other Courts of Appeals to have addressed the issue apply the choice-of-law rule of the forum State. When you sit down to write a brief or motion (or opinion) you generally know where you want readers to end up. So spend some time considering how you can frame your points persuasively to prime readers for where you’re going. Here, the Justice is going to end up with the majority approach. So she primes us by highlighting this sole court “standing alone” in its position. We’re thinking, “well we don’t want to side with this lone court when all the other courts are going another direction.” It’s emotionally pushing us towards a goal before we even know where we’re going. Bonus points for the story-telling tool of personification: Courts can’t “stand alone” literally, but it’s a visual description.
Priming and Framing
The statute first lays down a baseline principle of foreign sovereign immunity from civil actions. It then lists a series of exceptions from that principle (including the expropriation exception found to apply here). The Justice smartly does two things in this passage: She chooses a subject she cares about and (even though it’s a statute) uses active verbs to carry out the action. She also stays consistent, sticking with that same subject from sentence to sentence so readers can follow along. This is particularly important when the subject isn’t a person.
Subjects Doing Things
The path of our decision has been as short as the hunt for Rue Saint-Honoré was long; our ruling is as simple as the conflict over its rightful owner has been vexed. A foreign state or instrumentality in an FSIA suit is liable just as a private party would be. That means the standard choice-of-law rule must apply. Don’t end with formalisms and useless patter. Readers pay attention to the conclusion (assuming you’ve kept them engaged this far, at least). Justice Kagan pulls out rhetorical moves—a metaphor that connects the decision with its subject matter, which is a master move. Then she sums up the thrust of the opinion in two sentences that make the bottom line easy to digest. Invest in your conclusions like this so that they add value and build your credibility.
Finishing Strong