Logical Transition Examples—To Draw a Contrast

Want to sharpen your legal writing transitions? Here are choice examples of how to preempt your opponent, contrast facts, and distinguish contrary authority.

• • Case citations have been replaced by “.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

At the same time

1. 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.”

1. 1. Example from Justice Kagan: “The revised §922(d) prevents a private person from knowingly selling a gun to an ineligible owner no matter when or how he acquired the weapon: It thus applies not just to a straw purchaser, but to an individual who bought a gun for himself and later decided to resell it. At the same time, §922(d) has nothing to say about a raft of cases §922(a)(6) covers, including all the (many) straw purchases in which the frontman does not know that the actual buyer is ineligible.”

1. 1. Example from Justice Sotomayor: “The first factor may still favor the copyist, even if the fourth factor is shown not to. At the same time, other forms of straight copying may be fair if a strong showing on the fourth factor outweighs a weak showing on the first.”

But

1. 1. Example from Justice Scalia: “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.”

1. 1. Example from Justice Kagan: “Abramski objects that because Alvarez could own a gun, the statute’s core purpose—‘keeping guns out of the hands’ of criminals and other prohibited persons—’is not even implicated.’ . . . But that argument (which would apply no less to the alias scenario) misunderstands the way the statute works. As earlier noted, the federal gun law makes the dealer ‘[t]he principal agent of federal enforcement.’”

1. 1. Example from Justice Barrett: “I agree with the Court’s analysis of the ordinary meaning of the word ‘occasion’ and its conclusion that Wooden’s burglaries count only once under the Armed Career Criminal Act. But I do not share the Court’s view that Congress ratified the Solicitor General’s brief confessing error in United States v. Petty, 798 F. 2d 1157 (CA8 1986), when it amended the Act to add the occasions clause.”

By contrast

1. 1. 

      Example from Chief Justice Roberts: “The Court distinguished Myers on the ground that Myers concerned ‘an officer [who] is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is.’ . . . By contrast, the Court characterized the FTC as ‘quasi-legislative and quasi- judicial’ rather than ‘purely executive,’ and held that Congress could require it ‘to act . . . independently of executive control.’”

1. 1. Example from Justice Kagan: “The mail fraud law contains two phrases strung together in a single, unbroken sentence. By contrast, §1344’s two clauses have separate numbers, line breaks before, between, and after them, and equivalent indentation—thus placing the clauses visually on an equal footing and indicating that they have separate meanings.”

1. 1. Example from Justice Sotomayor: “A use that shares the purpose of a copyrighted work, by contrast, is more likely to provide ‘the public with a substantial substitute for matter protected by the [copyright owner’s] interests in the original wor[k] or derivatives of [it],’ . . . , which undermines the goal of copyright.”

Despite

1. 1. Example from Justice Scalia: “Although the dissent criticizes us for having to develop a system of stays and dismissals, it should be obvious that the omnibus tolling solution will require the same. Despite the existence of the new tolling rule, some (if not most) plaintiffs will nevertheless file suit before or during state criminal proceedings.”

1. 1. Example from Lisa Blatt: “Courts, for example, prevented infringing uses in a newspaper’s name . . . a movie title . . . and comic strips . . . among many others, . . . . Despite enjoining uses in indisputably ‘expressive works,’ none of these courts even mentioned the First Amendment.”

1. 1. Example from Justice Thomas: “And Halberstam’s six factors for ‘substantial assistance’ call for the same balancing that courts had undertaken previously between the nature and amount of assistance on the one hand and the defendant’s scienter on the other. . . . Despite that deep-rooted common-law basis, the Ninth Circuit appears to have understood JASTA’s approval of Halberstam’s “legal framework” as requiring it to hew tightly to the precise formulations that Halberstam used.”

For all that

1. 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.”

1. 1. Example from Justice Scalia: “And even if that abstract ‘increased difficulty’ sufficed for injury in fact (which it does not), the existence of even that is pure speculation. For all that appears, no owner of a processing plant would have been willing to sell to Snake River at any price that Snake River could afford—and the impossible cannot be made ‘more difficult.’”

1. 1. Example from Justice Souter: “But he is wrong; Heck did not hold that a released prisoner in Spencer’s circumstances is out of court on a § 1983 claim, and for reasons explained in my Heck concurrence, it would be unsound to read either Heck or the habeas statute as requiring any such result. For all that appears here, then, Spencer is free to bring a § 1983 action, and his corresponding argument for continuing habeas standing falls accordingly.”

Instead

1. 1. Example from Chief Justice Roberts: “When the Government conducts an activity, ‘NEPA itself does not mandate particular results.’ . . . Instead, NEPA imposes only procedural requirements to ‘ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.’”

1. 1. Example from Lisa Blatt: “Here, VIP did not use Jack Daniel’s marks in the title or content of an artistic work. Instead, VIP imitated Jack Daniel’s marks to identify the source of its dog toy.”

1. 1. Example from Justice Sotomayor: “If it had been, the Court could have made quick work of the first fair use factor. Instead, meaning or message was simply relevant to whether the new use served a purpose distinct from the original, or instead superseded its objects. That was, and is, the ‘central’ question under the first factor.”

However

1. 1. Example from Justice Scalia: “But the difference is that we do not maintain that ‘against’ alters the meaning of ‘bear arms’ but merely that it clarifies which of various meanings (one of which is military) is intended. Justice Stevens, however, argues that ‘[t]he term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.”’”

1. 1. Example from Justice Kagan: “In essence, the employees ask us to treat those words as stray marks on a page— notations that Congress regrettably made but did not really intend. Our practice, however, is to ‘give effect, if possible, to every clause and word of a statute.’”

1. 1. Example from Justice Kavanaugh: “In sum, I would not invite the inconsistency, unpredictability, and unfairness that would result from expanding the rule of lenity beyond its very limited place in the Court’s case law. I would, however, continue to vigorously apply (and where appropriate, extend) mens rea requirements, which as Justice Robert Jackson remarked, are ‘as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.’”

In contrast

1. 1. Example from Lisa Blatt: “In contrast to VIP’s front-only label containing poop humor, Jack Daniel’s bottle has a three-sided label that conveys numerous messages. The front label reminds consumers ‘Every Drop Made in Lynchburg Tennessee,’ and boasts ‘Quality & Craftsmanship Since 1866.’ One side depicts Jack Daniel’s portrait (a work of art in itself) and explains that the whiskey is still filtered through maple charcoal. . . . Beneath is his ‘charge’: ‘Every day we make it, we’ll make it the best we can.’ The other side explains Jack Daniel’s production—‘Mellowed’ though sugar maple charcoal, ‘Matured’ in handcrafted barrels, and ‘Tasted’ by master distillers before sale. The label mentions that the whiskey has been awarded seven gold medals since 1904.”

1. 1. Example from Solicitor General Prelogar: “First, Massachusetts involved the threatened loss of territory owned by and subject to the sovereignty of the State—a harm that this Court has long treated as distinctive and legally cognizable. . . . This case, in contrast, involves ‘indirect fiscal burdens’ that allegedly flow from the Guidelines—a ‘humdrum feature’ of federal policies.”

1. 1. Example from Neal Katyal: “A court may not need to check the standing of those additional plaintiffs unless and until there is any indication that they intend to act separately from the plaintiff with standing. Prospective intervenors, in contrast, necessarily seek the right to invoke the district court’s authority in some way distinct from the existing parties, and so must establish their standing at the outset.”

In the meantime

1. 1. Example from Chief Justice Roberts: “A court concluding that the Navy is required to prepare an EIS has many remedial tools at its disposal, including declaratory relief or an injunction tailored to the preparation of an EIS rather than the Navy’s training in the interim. . . . In the meantime, we see no basis for jeopardizing national security, as the present injunction does. Plaintiffs confirmed at oral argument that the preliminary injunction was ‘the whole ball game,’ . . . , and our analysis of the propriety of preliminary relief is applicable to any permanent injunction as well.”

1. 1. Example from Peter Stris: “The district court has repeatedly enlarged the time to perfect service. . . . Yet no end of Sudan’s delays is in sight. In the meantime, the Kumar plaintiffs have paid nearly $40,000 in additional fees to the State Department to serve process under subsection (a)(4).”

1. 1. Example from Seth Waxman: “The LTA thus sets forth not a settlement of the parties’ dispute, but a framework for resolving it through litigation, namely a declaratory judgment action. . . . In the meantime, Medtronic is not obligated to make the disputed royalty payments to MFV, but only to maintain the disputed amount and to certify to MFV that the funds are available.”

Nevertheless

1. 1. Example from Justice Thomas: “Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations. . . . Nevertheless, the Court of Appeals permitted not one, but two constitutional damages actions to proceed against a U.S. Border Patrol agent: a Fourth Amendment excessive-force claim and a First Amendment retaliation claim.”

1. 1. Example from Justice Sotomayor: “Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original.”

1. 1. Example from Solicitor General Prelogar: “Even if Section 706(2) authorized vacatur, Section 1252(f)(1) would nevertheless bar lower courts (but not this Court) from granting that relief in this context.”

Not

1. 1. Example from Justice Kagan: “In Bush v. Vera, for example, this Court upheld a finding of racial predominance based on ‘substantial direct evidence of the legislature’s racial motivations’—including credible testimony from political figures and statements made in a §5 preclearance submission—plus circumstantial evidence that redistricters had access to racial, but not political, data at the ‘block-by-block level’ needed to explain their ‘intricate’ designs. . . . Not a single Member of the Court thought that the absence of a counter-map made any difference.”

1. 1. Example from Justice Sotomayor: “Had expert testimony confirmed the obvious fact that 2 Live Crew’s ‘Pretty Woman’ differed in aesthetics and meaning from Orbison’s original, that would have been the end of the dissent’s analysis. . . . Not the Court’s, however.”

1. 1. Example from Justice Jackson: “Indeed, the majority opinion does not identify a single case in which this Court imposed a mandatory general stay of pre-trial and trial proceedings pending an interlocutory appeal. Not in an arbitration case. Not in an analogous case about the proper adjudicatory forum for a dispute. Not in any interlocutory appeal at all.”

Rather

1. 1. Example from Chief Justice Roberts: “Our decision did not, as Lexmark contends, exempt all foreign sales from patent exhaustion. . . . Rather, it reaffirmed the basic premise that only the patentee can decide whether to make a sale that exhausts its patent rights in an item. The American patentees did not do so with respect to the German products, so the German sales did not exhaust their rights.”

1. 1. Example from Justice Sotomayor: “The purpose of Campbell’s logo is to advertise soup. Warhol’s canvases do not share that purpose. Rather, the Soup Cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism, a purpose that is orthogonal to advertising soup. The use therefore does not supersede the objects of the advertising logo.”

1. 1. Example from Justice Thomas: “It thus cautioned—in a typical common-law fashion—that its formulations should ‘not be accepted as immutable components.’ . . . Rather, Halberstam suggested that its framework should be “adapted as new cases test their usefulness in evaluating vicarious liability.”

Unlike (in)

1. 1. Example from Justice Scalia: “Premarket approval, in contrast, imposes ‘requirements’ under the MDA as we interpreted it in Lohr. Unlike general labeling duties, premarket approval is specific to individual devices. And it is in no sense an exemption from federal safety review—it is federal safety review.”

1. 1. Example from Justice Kagan: “But neither party urges that reading here, and for good reason. Unlike its civil analogue, §1425(a) has a companion provision—§1425(b)—that makes it a crime to ‘procure or obtain naturalization’ for ‘[one]self or another person not entitled thereto.’ If obtaining citizenship without legal entitlement were enough to violate §1425(a), then that highly specific language in §1425(b) would be superfluous.”

1. 1. Example from Justice Thomas: “As plaintiffs allege, ISIS and its adherents haveused these platforms for years as tools for recruiting, fundraising, and spreading their propaganda. Like many others around the world, ISIS and its supporters opened accounts on Facebook, YouTube, and Twitter and uploaded videos and messages for others to see. Like most other content on those platforms, ISIS’ videos and messages were then matched with other users based on those users’ information and use history. And, like most other content, advertisements were displayed with ISIS’ messages, posts, and videos based on information about the viewer and the content being viewed. Unlike most other content, however, ISIS’ videos and messages celebrated terrorism and recruited new terrorists.”

Yet

1. 1. Example from Chief Justice Roberts: “The markets for some securities are more efficient than the markets for others, and even a single market can process different kinds of information more or less efficiently, depending on how widely the information is disseminated and how easily it is understood. . . . Yet Basic, Halliburton asserts, glossed over these nuances, assuming a false dichotomy that renders the presumption of reliance both underinclusive and overinclusive: A misrepresentation can distort a stock’s market price even in a generally inefficient market, and a misrepresentation can leave a stock’s market price unaffected even in a generally efficient one. . . . Halliburton’s criticisms fail to take Basic on its own terms.”

1. 1. Example from Justice Sotomayor: “That suggestion refers to Warhol’s works that incorporate advertising logos, such as the Campbell’s Soup Cans series. . . . Yet not all of Warhol’s works, nor all uses of them, give rise to the same fair use analysis. In fact, Soup Cans well illustrates the distinction drawn here.”

1. Example from Justice Thomas: “Plaintiffs also allege that defendants have known that ISIS has used their platforms for years. Yet, plaintiffs claim that defendants have failed to detect and remove a substantial number of ISIS-related accounts, posts, and videos.”

Want to keep honing your transitions game? Check out this legal writing lesson on transitions for conceding points or preempting counterarguments!