04Litigation playbooks

Build the record for the result you want.

The challenger and government should litigate the same four objects: application, universe, proof, and proposed judgment.

Shared discipline

Draft the proposed judgment early. If the requested operative language is difficult to state precisely, the claim may still be underdefined.

For challengers

Plaintiff’s architecture

01
Plead nested theories
Preserve the facial claim and a fact-specific as-applied fallback. State how the requested relief differs.
02
Define the application universe
Use statutory text, authoritative constructions, regulated actors, and enforcement mechanics.
03
Build an application record
Examples, declarations, enforcement history, and administrability evidence matter more than adjectives.
04
Name the exception
If relying on overbreadth or vagueness, brief its distinct threshold, denominator, and institutional rationale.
05
Offer a remedy ladder
Plaintiff relief, class relief, partial invalidation, severance, and only then total invalidation.
06
Account for CASA
Explain the lawful basis for every person protected by the proposed injunction.

For government

01
Lead with the strongest application
Rahimi shows how one historically and factually grounded application can defeat a facial attack.
02
Demand the complete map
Under Moody, the challenger’s heartland example is not the full universe.
03
Separate real from imaginary
Use Grange to expose speculation, while respecting Patel’s limit on independent authority.
04
Supply narrowing law
Authoritative constructions can shrink the universe; litigation promises usually cannot.
05
Brief severability early
Show the clean line, the legislature’s likely preference, and the administrable remainder.
06
Contest remedial reach
Standing, complete relief, Rule 23, federalism, and equitable tradition remain independent defenses.

Record checklist

Text

The exact provision, definitions, cross-references, severability clause, and authoritative constructions.

Applications

A defensible taxonomy of regulated actors, conduct, settings, procedures, and enforcement mechanisms.

Evidence

Plaintiff-specific facts plus proof supporting or rebutting the frequency and significance of other applications.

Relief

A proposed order whose operative terms identify the law, conduct, people, and conditions covered.