In the category of “Most Powerful Word in Appellate Advocacy,” I respectfully submit the following nomination. This being a made-up competition over which I have unfettered control, I also get to pick my nominee as the winner.
And the winner is: “Because.”
Why, you may ask, does a pedestrian term such as “because” merit such recognition? Let’s answer that question by unpacking this deceptively simple word.
“Because” is the winner because “because” requires the author to make explicit that which often is implicit in briefs and opinions.
In other words, using “because” in key sentences, headings, and issues signals more than just the argument’s destination. This word tells the reader how the destination was reached. More importantly, the legal writer who includes “because” in crucial portions of the document is compelled to confront a sometimes challenging question: Why exactly does the conclusion I want flow from the facts and the law governing this particular case?
If you can’t satisfactorily explain the “because” to yourself, then something is wrong with the argument.
Consider Justice Kagan’s use of “because” at critical junctures in Bowman v. Monsanto Co., No. 11-796, 2013 WL 1942397 (U.S. May 13, 2013).
Bowman addressed whether the doctrine of patent exhaustion allows a farmer who buys patented seeds to reproduce them through planting and harvesting without the patent holder’s permission. A unanimous Supreme Court said no.
The farmer in question, Vernon Bowman, bought Roundup Ready soybean seeds from Monsanto for his first crop of the season under a licensing agreement that prevented him from saving any harvested seeds for replanting or supplying them to anyone else for that purpose. The seeds are unique because they have been genetically engineered to survive exposure to certain herbicides. This feature allows farmers to kill weeds among the soybean plants without killing the plants themselves.
Displaying the grit, determination, and ingenuity for which farmers are justly celebrated, Vernon tried to beat the licensing agreement. Each year he dutifully bought seeds from Monsanto for his first crop of the season, planted them, harvested the soybeans, and sold them to a grain elevator. So far, so good.
For his second crop of the season, Vernon went to his local grain elevator and bought already harvested “commodity soybeans” intended for human or animal consumption. Most of these soybeans came from fellow farmers who also used Monsanto’s genetically modified seeds under a licensing agreement. The second planting thus produced seeds with the same desirable genetic quality, which Vernon saved for use as his second crop the following season. Monsanto discovered the practice and sued Vernon for patent infringement.
“Bowman raised patent exhaustion as a defense, arguing that Monsanto could not control his use of the soybeans because they were the subject of a prior authorized sale (from local farmers to the grain elevator).” Id. at *3. The district court rejected this defense and signed a judgment awarding damages. The Federal Circuit affirmed, and the Supreme Court affirmed the affirmance.
Under the patent exhaustion doctrine, the initial authorized sale of a patented item terminates the patentee’s right to control what the purchaser can do with the item. The Supreme Court concluded that this defense does not extend so far as to let a farmer to make additional patented soybeans without Monsanto’s express or implied permission. Id. at *4-*5. Vernon impermissibly made a new product when he obtained soybeans from the grain elevator, planted them, and harvested more soybeans than he started with. Id.
Said the Court: “Because Bowman thus reproduced Monsanto’s patented invention, the exhaustion doctrine does not protect him.” Id. at *4.
The Court added that the exhaustion doctrine always has excluded reproduction of a patented article even though such reproduction could be considered to be a “use” of the product in a broad sense. Id. at *5. “That is because, once again, if simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention.” Id.
Bowman is worth the read if only because it manages to talk about technical aspects of patent law and genetically modified soybean seeds in an accessible, conversational, and largely jargon-free manner. It stands as proof that an opinion addressing patent issues need not hide behind lengthy quotes and impenetrable terminology.
But the main takeaway for present purposes is that the opinion’s clarity stems in part from its use of a simple but powerful tool. At crucial points in explaining the result, the opinion does not merely make a pronouncement. It makes a pronouncement combined with a short statement of the reason for the pronouncement. Developing the discipline to join conclusions with a “because” followed by reasons leads to more clear and more emphatic writing. Look for opportunities to insert a “because” — in headings, in issues, in openings, and in conclusions.
Because it’s the right thing to do for better legal writing.