10.1 FIND YOUR “KEVINBACON”

Several years ago, Craig Fass, Michael Ginelli, and Brian Turtle created the game “Six Degrees of Kevin Bacon.” The game is based on the concept at the heart of the 1990 John Guare play, Six Degrees of Separation: We are all connected to everyone else in the world through no more than six people.

Oprah Winfrey was in The Color Purple with Danny Glover, Danny Glover was in Places in the Heart with Sally Field, Sally Field was in Punchline with Tom Hanks, and Tom Hanks was in Apollo 13 with Kevin Bacon.

Now, what does all of this have to do with legal writing? Every legal document should have a “Kevin Bacon” element — something that is the “center of the universe” to which everything else in the document connects. With a well-written legal document, the reader should be able to throw a dart at any sentence in the document and get back to the document’s focus just as easily as we moved from Oprah Winfrey to Kevin Bacon in the previous paragraph. When writing a brief, you should decide what the center of your brief’s “universe” is: That’s your “Kevin Bacon.”

In Minnesota v. Carter, 525 U.S. 83 (1998), for example, one of the petitioner’s dispositive arguments was that people who come to an apartment for the sole purpose of bagging cocaine cannot invoke Fourth Amendment protections. The focus of that brief, as for all petitioners’ briefs, would be the assertion that the decision below should be reversed. If we throw a theoretical dart at the brief, we find the assertion that “the respondents were in the apartment solely to conduct commercial activity.” The reader could use “Bacon links” to connect that point back to the ultimate assertion this way:

Respondents were in the home only to conduct illegal commercial activity;

Because the activity was an illegal commercial activity, it is not an activity that is recognized as valuable by society; Because their activity is not recognized as valuable by society, Respondents can have no legitimate expectation of privacy when conducting that activity; Because Respondents have no legitimate expectation of privacy when conducting that activity, they cannot invoke the Fourth Amendment; and Because Respondents cannot invoke the Fourth Amendment, this Court must reverse.

Thus, in a brief, the “Bacon links” in the Six Degrees of Legal Writing game are the assertions that you are focusing on in the various sections of your document, and the main focus is your ultimate conclusion. Knowing that the links are there is only half the battle, however. You must make the connections between the links explicit in the text of your brief so that the reader is as aware of the connections as you are.

For example, the following paragraph from a petitioner’s brief in Minnesota v. Carter does not make the links explicit: BAD EXAMPLE Because society does not value the Respondents’ illegal business activity, this Court must reverse.

Most readers would not immediately grasp the connection between respondents’ illegal business activity and the conclusion that the court must reverse. Instead of making this unmoored statement, the writer should connect the point about illegal business activity to the conclusion that the court must reverse by making the connections explicit:

GOOD EXAMPLE

Thus, Respondents, who were conducting a purely commercial activity, were not visitors to a “home” and were not engaging in longstanding social customs that serve functions recognized as valuable by society. While Respondents may have been legitimately in the apartment, in the sense that Thompson permitted their presence, Respondents did not have any legitimate expectation of privacy in the apartment because they were present only to conduct illegal business. Because Respondents’ expectation of privacy was not one that society recognizes as reasonable, they cannot claim the Fourth Amendment’s protections, and this Court must reverse.

Although the example above shows a connection-conclusion paragraph, an equally important location for making links explicit is in the beginning of a section or subsection.

B. Respondents had no legitimate expectation of privacy because any subjective expectation they might have had while temporarily in another’s home for the sole purpose of conducting illegal business was not one society recognizes as reasonable....

1. The Olson rule dictates that only overnight guests have a connection to premises that gives rise to a legitimate expectation of privacy.

2. Even if the Olson rule extends to non-overnight guests, Respondents’ expectation of privacy is unreasonable because they were present only to conduct illegal business that is not valuable to society.

If Olson does not stand for the proposition that only overnight guests may assert a Fourth Amendment challenge, it at least stands for the proposition that only a very limited category of guests may do so. The limited category includes only those guests whose connections to the home give rise to an expectation of privacy that society is prepared to recognize as reasonable. See Olson, 495 U.S. at 95. Respondents failed to demonstrate that their expectation of privacy was one society is prepared to recognize as reasonable.

The Minnesota Supreme Court found that Respondents demonstrated an expectation of privacy that society is prepared to recognize as reasonable because they were present in the apartment “to conduct a common task.” State v. Carter, 569 N.W.2d 169, 176 (Minn. 1997). This Court should reverse the decision of the Minnesota Supreme Court because (1) the distribution of drugs is not a longstanding social custom that serves functions recognized as valuable by society, and (2) Respondents were not “guests” in a home but rather were business invitees on the property for a purely commercial purpose, and therefore lost the Fourth Amendment protection normally associated with the home.

a. Illegal drug distribution is not a longstanding social custom that serves functions recognized as valuable by society. b. Respondents were present for a purely commercial purpose and were not entitled to the Fourth Amendment protection associated with the home.

When you revise, consider how each section of your document relates to the other sections and to your overall thesis. If the connection is not obvious, see if you can make the connection obvious by adding a sentence or a paragraph in which you make the connection explicit. If you cannot figure out how to connect the point to your overall thesis, consider whether the section really belongs in your argument.

One of the most effective ways to make connections explicit is by repeating significant words and concepts. Just as you repeat the names of the various actors when you play the Kevin Bacon game, you should repeat significant words (often, phrases-that-pay) when making Kevin Bacon connections in your writing. Doing so makes it easy for your reader to understand how your ideas connect to each other.³

In connection-conclusions, for example, you should connect the points in each section to the other relevant points and, when necessary, to your overall thesis. By doing so, you save the reader’s time and effort and increase his or her understanding of your argument.