Logical Transition Examples—To Concede a Point or to Preempt a Counterargument

Get ahead in your case by using the phrases below to block or preempt potential counterarguments before opposing counsel can raise (and frame) them. 

• Case citations have been replaced by “. . .” to shorten these passages and to allow you to digest them more easily.

All the same

1. Example from Justice Sotomayor: “But, as the Court explains, that reading does not resolve the surplusage problem, because even such repossession agencies engage in a means of collecting debts ‘indirectly’—which means that they are similarly situated to entities pursuing nonjudicial foreclosures after all. . . . All the same, this is too close a case for me to feel certain that Congress recognized that this complex statute would be interpreted the way that the Court does today.”
2. Example from Justice Gorsuch: “Instead, they are left to guess what some executive official might ‘reasonably’ decree the law to be today, tomorrow, next year, or after the next election. ‘[E]very relevant actor may agree’ that the agency’s latest pronouncement does not represent best interpretation of the law, yet all the same each new iteration ‘carries the force of law.’ Kavanaugh 2151. Fair notice gives way to vast uncertainty.”
3. Example from Justice Breyer: “The First Amendment violation in this case is even more apparent. In Hurley, the Veterans Council had merely ‘combin[ed] multifarious voices’ of disparate groups without bothering to ‘isolate an exact message,’ yet the First Amendment protected its message from government compelled distortion all the same. . . . Respondents in this case have done the Veterans Council one better. They have carefully constructed a cogent message and marshaled their clearly identified foreign affiliates to express it across the globe.”

Although

1. Example from Justice Scalia: “We based our conclusion on ‘the efficiency and economy of litigation which is a principal purpose of [Fed. Rule Civ. Proc. 23 class actions].’ . . . Although we did not employ the term ‘legal tolling,’ some federal courts have used that term to describe our holding on the ground that the rule ‘is derived from a statutory source,’ whereas equitable tolling is ‘judicially created.’”
2. Example from Chief Justice Roberts: “First, all parties agree that a Federal Exchange qualifies as ‘an Exchange’ for purposes of Section 36B. . . . Section 18031 provides that ‘[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.’ . . . Although phrased as a requirement, the Act gives the States ‘flexibility’ by allowing them to ‘elect’ whether they want to establish an Exchange. §18041(b).”
3. Example from Justice Kagan: “And in any event, Brulotte did not hinge on the mistake Kimble identifies. Although some of its language invoked economic concepts, . . . , the Court did not rely on the notion that post-patent royalties harm competition.”

At least

1. Example from Justice Kagan: “If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this. Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible, rather than a prohibited, ground.”
2. Example from Justice Sotomayor: “His Soup Cans series targets the logo. That is, the original copyrighted work is, at least in part, the object of Warhol’s commentary. It is the very nature of Campbell’s copyrighted logo—well known to the public, designed to be reproduced, and a symbol of an everyday item for mass consumption—that enables the commentary. Hence, the use of the copyrighted work not only serves a completely different purpose.”
3. Example from Justice Gorsuch: “Nor does the complaint allege facts plausibly suggesting that out-of-state consumers indifferent to pork production methods will have to pick up the tab (let alone explain how petitioners might sue to vindicate their interests). Instead, at least one declaration incorporated by reference into the complaint avers that some out-of-state consumers will ‘not value these changes and will not pay an increased price.’”

At the same time

1. Example from Chief Justice Roberts: “It is not clear that articulating the incorrect standard affected the Ninth Circuit’s analysis of irreparable harm. Although the court referred to the ‘possibility’ standard, and cited Circuit precedent along the same lines, it affirmed the District Court’s conclusion that plaintiffs had established a ‘near certainty’ of irreparable harm. . . . At the same time, however, the nature of the District Court’s conclusion is itself unclear.”
2. Example from Neal Katyal: “When necessary, amici have been permitted to file briefs and otherwise apprise the court of concerns and interests the parties might otherwise have overlooked. This limited form of participation ensures that a court fully understands the contours of a controversy. At the same time, because an amicus’s participation is tightly limited, the court and the other parties are spared the extra expense of time, energy, and money imposed by an intervenor as of right in the district court.”
3. Example from Kannon Shanmugam: “This Court initially addressed the question of who should decide arbitrability—the court or the arbitrator—in the context of labor arbitration, which is governed not by the Arbitration Act but by federal common law. . . . In that context, the Court concluded that ‘the question of arbitrability is for the courts to decide.’ . . . At the same time, however, the Court stated that parties could agree to delegate the authority to decide arbitrability to an arbitrator, . . . , by ‘clearly and unmistakably’ expressing that desire in the arbitration agreement[.]”

Even assuming

1. Example from Justice Kagan: “Its claims come in two forms—one relating to the goals of SLUSA as a whole and the other relating to the aims of the except clause. Even assuming clear text can ever give way to purpose, Cyan would need some monster arguments on this score to create doubts about SLUSA’s meaning. The points Cyan raises come nowhere close to that level.”
2. Example from Kannon Shanmugam: “As a result, under respondent’s reading of the Arbitration Act, a party could obtain a stay pending arbitration even if the claim of arbitrability were ‘wholly groundless,’ but it could not obtain an order compelling arbitration of that claim. Thus, even assuming respondent were correct that the ‘wholly groundless’ exception is an intended feature of the Arbitration Act, adopting respondent’s purported textual justification for the exception would ‘make it trivially easy . . . to undermine the Act, . . . because a party could avoid the “wholly groundless” exception through the simple expedient of seeking a stay (unless the Court were to read a similar limitation into Section 3).’ That is all the more reason to reject respondent’s outlandish interpretation of Section 4.”
3. Example from Lisa Blatt: “Moreover, as respondent observes, the common law would not permit this suit if it conflicted with the objectives of the 340B Act. . . . Petitioners consistently have argued that common law suits would conflict with Congress’s judgment to vest exclusive enforcement authority with the Secretary and would disrupt the administration of both the 340B and Medicaid Rebate Acts. . . . Thus, even assuming a common law action may proceed in the absence of an implied right of action, the decision below should be reversed.”

Even if

1. Example from Justice Scalia: “The Act therefore limits the comparison class for challenges under those provisions. Even if the jurisdiction treats railroads less favorably than residential property, no violation of these subsections has occurred.”
2. Example from Justice Kagan: “This Court has long rejected the notion that ‘whatever furthers the statute’s primary objective must be the law.’ . . . Even if Congress could or should have done more, still it ‘wrote the statute it wrote— meaning, a statute going so far and no further.’”
3. Example from Justice Sotomayor: “AWF’s licensing of the Orange Prince image thus ‘supersede[d] the objects,’ . . . , i.e., shared the objectives, of Goldsmith’s photograph, even if the two were not perfect substitutes.”

Even so

1. Example from Solicitor General Prelogar: “The mother in Linda R.S., for example, had ‘an interest in the support of her child.’ . . . Even so, she lacked standing to ‘contest the policies of the prosecuting authority’ because she was ‘neither prosecuted nor threatened with prosecution.’ The same logic applies here.”
2. Example from Seth Waxman: “Only a handful of patent decisions before 1952 addressed laches as a defense at law because actions at law were rare and patent damages were predominantly awarded in equity. Even so, decisions at law also recognized laches as an available defense.”
3. Example from Don Verrilli: “Indeed, the court of appeals’ contrary reading is such a dramatic break with long-settled practice that records have not even been kept in a fashion that consistently shows whether it was satisfied. Even so, nearly all Presidents have demonstrably made at least some, and often many, appointments that the court of appeals would deem unconstitutional. And, although the court of appeals believed that its view was consistent with the ‘earliest understanding of the Clause’ (Pet. App. 38a), there was in fact no such settled understanding before 1823.”

Even still

1. Example from Gregory Garre: “Depriving contractors like Campbell-Ewald of derivative immunity also ultimately would cause contractors to pass through to the government the risk of liability and litigation through higher prices. . . . Even still, the risk that contractors like Campbell-Ewald could be left ‘holding the bag,’ in whole or part, for carrying out the government’s work will undermine the effectiveness of the services that the government receives and make outside experts ‘think twice before accepting a government assignment,’ . . . , including military recruiting campaigns that seek to harness modern communications technology.”
2. Example from Justice Sotomayor: “Nor was all such conduct innocent, as the statute required an individual to act ‘corruptly.’ . . . Even still, ‘[h]ad Congress intended’ to sweep so far, ‘it would have spoken with more clarity than it did.’”
3. Example from Justice Stevens: “In my view, the Court badly misconstrued the Second Amendment in linking it to the value of personal self-defense above and beyond the functioning of the state militias; as enacted, the Second Amendment was concerned with tyrants and invaders, and paradigmatically with the federal military, not with criminals and intruders. But even still, the Court made clear that self-defense plays a limited role in determining the scope and substance of the Amendment’s guarantee.”

Even though

1. Example from Chief Justice Roberts: “The evidence at the certification stage thus shows an efficient market, on which the alleged misrepresentation had no price impact. And yet under EPJ Fund’s view, the plaintiffs’ action should be certified and proceed as a class action (with all that entails), even though the fraud-on-the-market theory does not apply and common reliance thus cannot be presumed. Such a result is inconsistent with Basic’s own logic.”
2. Example from Justice Kagan: “The justification the Government offers for departing from that principle fails: Section 2401(b) is not a jurisdictional requirement. The time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.”
3. Example from Justice Sotomayor: “Moreover, the copying use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith’s photograph, as the District Court found, this Court agrees with the Court of Appeals that, in the context of the challenged use, the first fair use factor still favors Goldsmith.”

Even under

1. Example from Justice Scalia: “Yet Section 2 makes clear that Congress, in petitioners’ words, ‘conferred interpretive power on the agency’ with respect to Section 1. . . . Even under petitioners’ theory, then, a court should defer to the Agency’s interpretation of the terms ‘common carrier’ and ‘unreasonable condition’—that is to say, its assertion that its ‘jurisdiction’ extends to regulating Internet Service Providers and setting prices.”
2. Example from Neal Katyal: “The President infringes that right, just as surely as any other officer, by releasing an order blocking the issuance of immigrant visas based on nationality. In any event, EO-3 fails even under the Government’s cramped reading. The proclamation carries out its discrimination by directing ‘consular officers and other government officials’ to deny visas to nationals of particular countries. . . . EO-3 thus requires discrimination by the very persons the Government admits are bound to adhere to the statute.”
3. Example from Lisa Blatt: “And the avoidance canon is particularly apt here, where the religious entanglement inherent in defining ‘church’ motivated Congress to pass the 1980 amendment. . . . Nor does it matter that, even under petitioners’ interpretation, courts must decide whether the entity with which a religious organization claims affiliation is a ‘church.’ . . . This is a red herring. The likelihood of any dispute is slim to nonexistent. No one disputes, for example, that the Catholic Church, the UCC, or the ELCA are ‘churches.’”

For all that

1. Example from Justice Kagan: “He may not have brought the gun to the drug deal himself, but because he took part in that deal knowing a confederate would do so, he intended the commission of a §924(c) offense—i.e., an armed drug sale. For all that to be true, though, the §924(c) defendant’s knowledge of a firearm must be advance knowledge—or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice.”
2. Example from Justice Kennedy: “In this case respondents have established nothing more than a fleeting and insubstantial connection with Thompson’s home. For all that appears in the record, respondents used Thompson’s house simply as a convenient processing station, their purpose involving nothing more than the mechanical act of chopping and packing a substance for distribution.”
3. Example from Justice Sotomayor: “As for the prosecution’s second purported justification—that his questionnaire responses ‘were poor,’ . . .—it is impossible to know what winning arguments the defense could have raised because the questionnaire itself is missing from the record.⁵ Indeed, for all that is known, counsel may have had a compelling argument that Olanders D.’s answers were cogent and complete.”

Of course

1. Example from Justice Scalia: “While we have relied on similar documents in the past, . . . , our more recent precedents disapprove of that practice. Of course the Blue Book, like a law review article, may be relevant to the extent it is persuasive. But the passage at issue here does not persuade.”
2. Example from Justice Kagan: “The bank’s involvement in the scheme is, indeed, wholly fortuitous—a function of the victim’s paying the fraudster by (valid) check rather than cash. Of course, the bank would not have disbursed funds had the misrepresentation never occurred, and in that sense, the lie counts as a but-for cause of the bank’s payment. But as we have said, §1344(2)’s ‘by means of’ language requires more, . . .: It demands that the defendant’s false statement is the mechanism naturally inducing a bank (or custodian) to part with its money.”
3. Example from Justice Sotomayor: “And here, the undisputed facts reveal that the Foundation sought to use its image as a commercial substitute for Ms. Goldsmith’s photograph. Of course, competitive products often differ in material respects and a buyer may find these differences reason to prefer one offering over another. . . . But under the first fair-use factor the salient point is that the purpose and character of the Foundation’s use involved competition with Ms. Goldsmith’s image.”

On the other hand

1. Example from Justice Kagan: “If the Commission finds no ‘reasonable cause’ to think that the allegation has merit, it dismisses the charge and notifies the parties. The complainant may then pursue her own lawsuit if she chooses. See §2000e–5(f)(1). If, on the other hand, the Commission finds reasonable cause, it must first ‘endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.’”
2. Example from Justice Thomas: “Thus, Hamilton did aid and abet Welch in burglarizing Halberstam’s home—and, as noted above, killing Halberstam was a foreseeable consequence of that burglary. . . . On the other hand, defendants overstate the nexus that § 2333(d)(2) requires between the alleged assistance and the wrongful act. To start, aiding and abetting does not require the defendant to have known ‘all particulars of the primary actor’s plan.’”
3. Example from Justice Barrett: “Because he failed to report 272 accounts, the Government concluded that he violated the law 272 times and assessed a penalty for each violation. Bittner, on the other hand, argued that he violated the law just five times—once for each annual form that he failed to file.”

Otherwise

1. Example from Chief Justice Roberts: “That suggests that Section 18041 authorizes the Secretary to establish an Exchange under Section 18031, not (or not only) under Section 18041. Otherwise, the Federal Exchange, by definition, would not be an ‘Exchange’ at all.”
2. Example from Justice Sotomayor: “But Campbell cannot be read to mean that §107(1) weighs in favor of any use that adds some new expression, meaning, or message. Otherwise, ‘transformative use’ would swallow the copyright owner’s exclusive right to prepare derivative works.”
3. Example from Neal Katyal: “It is well-established that the defendant must ‘form’ the first link of this relationship—between the defendant and the forum—through its own conduct. . . . It follows that the second link—between the forum and the litigation—must be a continuation of the same causal chain; otherwise, there would be no common connection between ‘the defendant, the forum, and the litigation.’”

Still

1. Example from Justice Kagan: “District 12, for its part, had no need for significant total-population changes: It was overpopulated by fewer than 3,000 people out of over 730,000. . . . Still, Rucho, Lewis, and Hofeller decided to reconfigure the district, further narrowing its already snakelike body while adding areas at either end—most relevantly here, in Guilford County.”
2. Example from Don Verrilli: “Disapproval may also be the product of longstanding traditions or sincerely held beliefs. . . . Still, while ‘[p]rivate biases may be outside the reach of the law, . . . the law cannot, directly or indirectly, give them effect.’”
3. Example from Neal Katyal: “As the Court recently explained, this statute does not even ‘present a jurisdictional bar’ to claims challenging the detention of an alien in removal proceedings. . . . Still less does it render a challenge ‘effectively unreviewable’ when it is asserted against a policy of exclusion and separately from removal proceedings.”

That said

1. Example from Justice Kavanaugh: “For those reasons, I would not alter our rule of lenity case law. That said, I very much agree with Justice Gorsuch about the importance of fair notice in federal criminal law. But as I see it, that concern for fair notice is better addressed by other doctrines that protect criminal defendants against arbitrary or vague federal criminal statutes—in particular, the presumption of mens rea.”
2. Example from Paul Clement: “There is no logical reason for making it easier for state judges to create friction with foreign sovereigns than for Congress to do the same. That said, by allowing make-whole damages for domestic injuries, even when the calculation reflects lost foreign sales or wages, the common-law rule promotes comity. It would hardly further foreign relations for a foreign tourist or diplomat injured in Philadelphia to receive less compensation than a comparably injured Philadelphian just because the foreign victim’s damages award reflects lost wages in a foreign workplace or medical bills from a foreign hospital.”
3. Example from Peter Stris: “Limiting the scope of relief available to fiduciaries in litigation against participants was a sensible balance struck by Congress. Overpayments in cases such as this one, as well as in other settings like disability and pension, could result in the depletion of plan assets. That said, it is hard to believe that plan fiduciaries require the ability to seek judicial imposition of personal liability on participants in order to effectively protect plan assets.”

To be sure

1. Example from Justice Scalia: “Thus, we have repeatedly recognized that contractually required arbitration of claims satisfies the statutory prescription of civil liability in court. . . . To be sure, none of the statutes described above contained a nonwaiver provision, as the statute before us does. But if a cause-of-action provision mentioning judicial enforcement does not create a right to initial judicial enforcement, the waiver of initial judicial enforcement is not the waiver of a ‘right of the consumer,’ . . . .”
2. Example from Justice Kagan: “And on that score, Kirtsaeng has raised serious questions about how fee-shifting actually operates in the Second Circuit. To be sure, the Court of Appeals’ framing of the inquiry resembles our own: It calls for a district court to give ‘substantial weight’ to the reasonableness of a losing party’s litigating positions while also considering other relevant circumstances. . . . But the Court of Appeals’ language at times suggests that a finding of reasonableness raises a presumption against granting fees, . . .—and that goes too far in cabining how a district court must structure its analysis and what it may conclude from its review of relevant factors.”
3. Example from Paul Clement: “The government’s paean to the values served by the finality requirement likewise misses the point. To be sure, there may be ‘“good reason[s]” why parties ordinarily cannot go straight to federal district court any time the FTC takes one of “myriad preliminary steps” that precedes “a final order.”’ . . . But the challenge here (and in Free Enterprise Fund) is not to some preliminary agency action that may or may not get merged into a final agency action.”

True enough

1. Example from Chief Justice Roberts: “Arizona asserts that no ‘candidate or independent expenditure group is “obliged personally to express a message he disagrees with”’ or ‘required by the government to subsidize a message he disagrees with.’. . . True enough. But that does not mean that the matching funds provision does not burden speech.”
2. Example from Justice Kagan: “But that reasoning, taken alone, cannot justify North Carolina’s race-based redesign of District 1. True enough, a legislature undertaking a redistricting must assess whether the new districts it contemplates (not the old ones it sheds) conform to the VRA’s requirements. And true too, an inescapable influx of additional voters into a district may suggest the possibility that its former track record of compliance can continue only if the legislature intentionally adjusts its racial composition. Still, North Carolina too far downplays the significance of a longtime pattern of white crossover voting in the area that would form the core of the redrawn District 1.”
3. Example from Justice Ginsburg: “National Meat is not controlling here. No express preemption provision is involved. The mining ban sets no safety standards for federally supervised milling or tailings storage activities. True enough, the ban makes it far less likely, though not impossible, that such activities will take place in the Commonwealth.³ In that regard, the Commonwealth’s mining ban is more aptly analogized to state bans on slaughtering horses, upheld by courts of appeals and distinguished in National Meat from California’s nonambulatory pig laws.”