Paul Clement Word Of The Day: Speculative

People often cite Paul Clement’s briefs as good examples of thematic brief writing. Part of the reason is that, as Ross Guberstein has pointed out, Clement seizes on powerful words that capture his theme and repeats them throughout the brief. In honor of those briefs, I’ve instituted the “Paul Clement Word of the Day,” which admittedly will not be a daily, weekly, or even monthly feature of this blog.

Today’s word of the day: Speculative.

That’s the thematic buzzword that appears repeatedly in Clement’s cert petition in Exxon Mobil Corp. v. City of New York, in which Clement argues that NYC’s tort suit against Exxon wasn’t ripe because the claim was merely “contingent” and “speculative.” Some form of the word “speculative” (ex. “speculate,” "speculation") appears 33 times in the 36-page petition.

Here’s my favorite part of the petition:

This problem is self-evident in the jury instruction asking if the plaintiff “will be” injured—without any imminence requirement. App. 22. In an Article III court, the proper answer to such a question is not yes or no, but come back when the injury is ripe. E.g., Lujan, 504 U.S. at 560.

Making the suit even more clearly premature, this future-tense instruction stacked speculation upon speculation. The jury speculated:

• whether the City will fulfill its good faith intention to start building a treatment plant in the next 15 years;

• whether, if as speculated the City actually builds a treatment facility, the City will use Station Six as a backup supply within 15 to 20 years;

• whether, if the City uses Station Six, the “pumping scenario” that it actually employs—i.e., the frequency and extent of that speculated backup use, which in turn depends on unpredictable factors including “presently unforeseen infrastructure repairs” and the pumping scenario of other nearby wells causes the Station Six Wells’ “capture zone” to encompass otherwise remote MTBE spills; and

• whether, depending on the size and shape of the speculated capture zone, enough otherwise remote MTBE will be drawn into the Station Six Wells so as even to require treatment.

See App. 15–16, 18–20; App. 22; 189. The District Court thus did not merely allow the jury to find a future injury sufficient, it asked the jury to make a string of predictions about what might (or might not) occur more than 15 years from now, depending on how the City uses wells that it cannot use unless and until it addresses PCE contamination. Indeed, the word “prediction” and its variants appear more than a dozen times in the District Court’s opinion. App. 125, 126, 127, 136, 166, 167, 168, 169, 176, 177. And the jury’s central finding on injury was that MTBE concentrations would peak at 10 parts per billion in the year 2033. App. 23. The consequence of all these predictions was that the City walked away with $104 million to redress an injury that has not yet occurred and may never occur.

Pet. at 21-22 (my emphasis). 

In the underlined/boldened sentence, Clement actually does his own word study, this time of the district court's opinion. It was an effective technique: The court's own reliance on the word "prediction" underscored just how "speculative" the whole suit really was.