Logical Transition Examples—To Draw an Analogy or Compare

Here are a few examples of how the Greats analogize and compare cases, facts, and contexts.

• Case citations have been replaced by “.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

As in X, Y

1. 

   Example from Seth Waxman: “The Federal Circuit reasoned that the relevant ‘act of infringement’ under §271(e)(2)(C) must be the submission of an application ‘coupled’ with the failure to provide the required disclosures—and therefore that §271(e)(4) specifies the exclusive remedies for a breach of §262(l)(2)(A). . . . But that reading of the statute is incorrect. As in the Hatch-Waxman context, the artificial act of infringement created by §271(e)(2)(C) is the submission of the application.”

2. Example from Neal Katyal: “As in CIGNA, the substitutionary monetary decree and deficiency judgment the Plan seeks are exclusively equitable and thus available under Section 502(a)(3).”
3. Example from Lisa Blatt: “Today, the valid verdicts from the 2011 trial—the verdicts of acquittal for conspiring and travelling to violate § 666—are entirely consistent with each other. They reflect no irrationality. As in Yeager, the government seeks to question the rationality of those acquittals—this time, by relying on the vacated convictions. And by pursuing a retrial, the government seeks to create irrationality—to convince a second jury to reach final, valid verdicts of conviction that the government concedes would be at odds with the first jury’s acquittals. Powell’s refusal to disturb existing inconsistent final verdicts hardly suggests that this Court should adopt a rule encouraging their creation.”

As with X, Y

1. Example from Paul Clement: “Rather, as with its Article II claim and its challenge to the amalgamation of functions in a single-agency body, Axon’s challenge to the clearance process goes to the very existence of the process and raises ‘standard questions’ of constitutional law that ‘do not require technical considerations’ of antitrust policy and that ‘courts are at no disadvantage in answering.’”
2. Example from Justice Jackson: “Just as with the money orders in Pennsylvania, the company holding the proceeds of the Disputed Instruments (MoneyGram) does not keep adequate records of creditor addresses as a matter of business practice.”
3. Example from Seth Waxman: “The same reasoning applies to the materiality predicate. If a misstatement is not material, there is no basis for presuming a market-price distortion upon which plaintiffs could have commonly relied, and thus the reliance question cannot be resolved for all class members ‘in one stroke.’ . . . As with the other predicates, therefore, plaintiffs must prove that a misstatement is material before class certification.”

By analogy

1. Example from Lisa Blatt: “Respondent, citing by analogy the False Claims Act (“FCA”), . . . , argues that private enforcement suits are ‘well-suited’ to enhance the Secretary’s enforcement efforts.”
2. Example from Walter Dellinger: “The majority’s attempt to draw support by analogy to the First Amendment also fails. . . . On a fundamental level, the analogy is inapt. Regulating dangerous weapons is at the heart of any government’s traditional police power.”
3. Example from David Frederick: “One commentator, analyzing Clause (1), has noted that ‘[r]eal property law, which confers the right to exclude on some occupiers of land . . . , offers a useful benchmark . . . . Whether a place is “open to the public” effectively turns on whether the viewer or listener can exclude the public from the particular space in which he is viewing or listening to the performance.’ . . . By analogy, as the government previously has acknowledged, the performances transmitted using Aereo’s equipment are not ‘public’ because no user may ever access the recording made by another.”

By extension

1. Example from Walter Dellinger: “North Carolina had materially similar wording. . . . These provisions were coupled with declarations that standing armies are ‘dangerous to liberty’ and should not be ‘maintained’ or ‘kept up.’ . . . Other state constitutions did not address arms possession directly but stressed the need for militia—and, by extension, privately owned military arms—for the common defense in place of a standing army.”
2. Example from Don Verilli: “Yet respondents miss the essential point of those decisions. The vibrant religious pluralism that the First Amendment (and, by extension, RFRA) protects is a guarantee of freedom of conscience for all.”
3. Example from Justice Jackson: “Thus, we should be celebrating the fact that UNC, once a stronghold of Jim Crow, has now come to understand this. The flagship educational institution of a former Confederate State has embraced its constitutional obligation to afford genuine equal protection to applicants, and, by extension, to the broader polity that its students will serve after graduation. Surely that is progress for a university that once engaged in the kind of patently offensive race-dominated admissions process that the majority decries.”

Here

1. Example from Justice Kagan: “We think ATF’s old position no more relevant than its current one—which is to say, not relevant at all. Whether the Government interprets a criminal statute too broadly (as it sometimes does) or too narrowly (as the ATF used to in construing §922(a)(6)), a court has an obligation to correct its error. Here, nothing suggests that Congress—the entity whose voice does matter— limited its prohibition of a straw purchaser’s misrepresentation in the way Abramski proposes.”
2. Example from Neal Katyal: “Respondents foresee a parade of horribles that would follow a holding that specific jurisdiction requires a causal connection. This Court has rejected similar doomsaying before.  . . . Here, at least eight federal courts of appeals covering 37 States, as well as the majority of state high courts to have addressed the issue, already require a causal connection. . . . And those jurisdictions have escaped respondents’ apocalypse.”
3. Example from Paul Clement: “Again, Free Enterprise Fund is instructive. Here, as there, . . . , the relevant statute provides for judicial review of only certain agency actions. Here, as there, there is no guarantee that the agency will ever take the kind of action that the statute’s administrative-review procedures cover.”

In each case

1. Example from Chief Justice Roberts: “The other case Medellin cites for the proposition that the judgments of international courts are binding, . . . , and the cases he cites for the proposition that this Court has routinely enforced treaties under which foreign nationals have asserted rights, similarly stand only for the principle that the terms of a treaty govern its enforcement. . . . In each case, this Court first interpreted the treaty prior to finding it domestically enforceable.”
2. Example from Justice Kagan: “The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States ‘shall be forever barred’ unless it is presented to the ‘appropriate Federal agency within two years after such claim accrues’ and then brought to federal court ‘within six months’ after the agency acts on the claim. . . . In each of the two cases we resolve here, the claimant missed one of those deadlines, but requested equitable tolling on the ground that she had a good reason for filing late. The Government responded that §2401(b)’s time limits are not subject to tolling because they are jurisdictional restrictions. Today, we reject the Government’s argument and conclude that courts may toll both of the FTCA’s limitations periods.”
3. Example from Justice Gorsuch: “And in United Haulers, a plurality upheld the challenged law because it could not “detect” any discrimination in favor of instate businesses or against out-of-state competitors. . . . In each of these cases and many more, the presence or absence of discrimination in practice proved decisive.”

In like manner

1. Example from Don Verilli: “An Exchange is a state-specific marketplace, and Section 36B(b)(2)(A) uses the phrase ‘Exchange established by the State under [Section 18031]’ because it is referring to the Exchange in the specific State mentioned earlier in the same sentence: The formula for tax credits depends on the cost of one or more insurance plans ‘offered in the individual market within a State . . . which were enrolled in through an Exchange established by the State under [Section 18031].’ . . . In like manner, the other references to an ‘Exchange established by the State’ in the relevant Titles of the Act refer to the Exchange in a specific State, typically one identified elsewhere in the same provision.”
2. Example from Justice Alito: “That authority obviously goes well beyond the prohibition of ‘Practices inconsistent with’ the ‘Peace’ and ‘Safety’ (or ‘Licentiousness’). . . . In like manner, State Constitutions and other declarations of rights commonly proclaimed that government should pursue broader goals, such as the promotion of ‘prosperity’ and ‘happiness.’”
3. Example from Justice Kagan: “And so we have granted relief under Strickland in diverse contexts without ever suggesting that doing so required a new rule. . . . In like manner, Padilla would not have created a new rule had it only applied Strickland’s general standard to yet another factual situation—that is, had Padilla merely made clear that a lawyer who neglects to inform a client about the risk of deportation is professionally incompetent.”

In the same way

1. 

   Example from Seth Waxman: “If the legitimate countervailing interest in Wyeth did not turn FDA’s judgments into a regulatory ‘ceiling,’ it is impossible to conclude that FDA’s food labeling regulations do so here. In the same way that state laws offer ‘an additional, and important, layer of consumer protection that complements FDA regulation,’ . . . , the Lanham Act provides a layer of competitor and consumer protection that the FDCA does not address.”

2. Example from Neal Katyal: “Laroe gets no help from cases cautioning that an appellate court may only be certain of its own jurisdiction by checking the jurisdiction ‘of the lower courts in [the] cause under review.’ . . . Appellate courts fulfill this task in the same way they decide their own jurisdiction: by ensuring that at least one party in the lower court had standing to press the ‘cause under review.’”
3. Example from Lisa Blatt: “‘By relying on hung counts to question the basis of the jury’s verdicts, the Government violates the very assumption of rationality it invokes for support.’ . . . The government’s argument in this case would violate the assumption of rationality in the same way.”

Just as X, so Y

1. Example from Justice Scalia: “That principle has ancient and durable roots. Just as the distinction between the home and the open fields is ‘as old as the common law,’ . . . , so too is the identity of home and what Blackstone called the ‘curtilage or homestall,’ for the ‘house protects and privileges all its branches and appurtenants.’”
2. Example from Justice Kagan: “This Court, needless to say, also plays a role in clarifying rights. Just as that purpose may justify an appellate court in reaching beyond an immunity defense to decide a constitutional issue, so too that purpose may support this Court in reviewing the correctness of the lower court’s decision.”
3. Example from Seth Waxman: “It noted other factors only as subsidiary considerations. Id. Just as FDA’s finding of deception in that case was not ‘based on’ the juice names, . . . , so too Pom would be permitted to argue to the jury, among other things, that Coca-Cola’s label is misleading for displaying the words ‘Pomegranate Blueberry’ in ‘large, bold lettering.’”

Like X, Y

1. Example from Justice Scalia: “Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff ’s injury be fairly traceable to the defendant’s conduct. Like the zone-of-interests test, . . . , it is an element of the cause of action under the statute, and so is subject to the rule that ‘the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction.’ . . . But like any other element of a cause of action, it must be adequately alleged at the pleading stage in order for the case to proceed.”
2. Example from Justice Kagan: “A few years later, law enforcement officers searched Armstrong’s home as part of a narcotics investigation. They discovered six guns, plus a large quantity of ammunition. Like Voisine, Armstrong was charged under §922(g)(9) for unlawfully possessing firearms.”
3. Example from Justice Gorsuch: “Under that doctrine’s terms, administrative agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.’ . . . Like many parallel clear-statement rules in our law, this one operates to protect foundational constitutional guarantees.”

Likewise

1. Example from Chief Justice Roberts: “In Din, JUSTICE KENNEDY reiterated that ‘respect for the political branches’ broad power over the creation and administration of the immigration system’ meant that the Government need provide only a statutory citation to explain a visa denial. . . . Likewise in Fiallo, we applied Mandel to a ‘broad congressional policy’ giving immigration preferences to mothers of illegitimate children.”
2. Example from Justice Kagan: “In Pereira, the mail fraud case discussed above, we found the requisite intent for aiding and abetting because the defendant took part in a fraud ‘know[ing]’ that his confederate would take care of the mailing. . . .  Likewise, in Bozza v. United States, 330 U.S. 160, 165 (1947), we upheld a conviction for aiding and abetting the evasion of liquor taxes because the defendant helped operate a clandestine distillery ‘know[ing]’ the business was set up ‘to violate Government revenue laws.’”
3. Example from Lisa Blatt: “The hidden arrow between the ‘e’ and ‘x’ in the FedEx mark conveys speed and precision . . . . Amazon’s mark conveys that it carries everything from ‘A’ to ‘Z’ with a smile . . . . Trademarked names likewise express beliefs of non-profit, religious, and political groups. Consider ‘Catholic Charities USA’ (#4,181,985) and the ‘American Civil Liberties Union’ (#1,902,649).”

Similarly

1. Example from Chief Justice Roberts: “Recognition of the class-of-one theory of equal protection on the facts in Olech was not so much a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification, as it was an application of that principle. That case involved the government’s regulation of property. Similarly, the cases upon which the Court in Olech relied concerned property assessment and taxation schemes.”
2. Example from Justice Sotomayor: “Parody, for example, ‘needs to mimic an original to make its point.’ . . . Similarly, other commentary or criticism that targets an original work may have compelling reason to ‘conjure up’ the original by borrowing from it.”
3. Example from Justice Gorsuch: “In Minnesota v. Clover Leaf Creamery Co., the Court found no impermissible burden on interstate commerce because, looking to the law’s effects, ‘there [was] no reason to suspect that the gainers’ would be in-state farms or that ‘the losers [would be] out-of-state farms’ . . . . Similarly, in Exxon Corp. v. Governor of Maryland, the Court keyed to the fact that the effect of the challenged law was only to shift business from one set of out-of-state suppliers to another.”

So too here

1. Example from Chief Justice Roberts: “The order, we explained, ‘warns every carrier, who does not have authority from the Commission to transport those commodities, that it does so at the risk of incurring criminal penalties.” . . . So too here, while no administrative or criminal proceeding can be brought for failure to conform to the approved JD itself, that final agency determination not only deprives respondents of a five-year safe harbor from liability under the Act, but warns that if they discharge pollutants onto their property without obtaining a permit from the Corps, they do so at the risk of significant criminal and civil penalties.”
2. Example from Seth Waxman: “For the same reasons the lower standard for obstacle preemption could not be met in Wyeth, so too here there is no irreconcilable conflict between the Lanham Act and the FDCA.”
3. Example from Paul Clement: “In exercising that authority, this Court said, Arizona has taken the route least likely to cause tension with federal law. . . . So too here, §§ 1357(g)(10), 1373(c), and 1644 expressly reserve to the States the authority exercised by Arizona in Section 2(B) and Section 2(B) avoids tension with federal law by incorporating the status verification procedure of § 1373(c).”

So too with

1. Example from Kannon Shanmugam: “Yet this Court has squarely rejected such reasoning, holding that a court ‘is not to rule on the potential merits of the underlying claims . . . even if [they] appear[] to the court to be frivolous.’ . . . So too with a claim of arbitrability: there, too, a district court ‘ha[s] no business’ looking at the merits of the claim.”
2. Example from Justice Roberts: “The principle of stare decisis has ‘special force’ ‘in respect to statutory interpretation’ because ‘Congress remains free to alter what we have done.’ . . . So too with Basic’s presumption of reliance. Although the presumption is a judicially created doctrine designed to implement a judicially created cause of action, we have described the presumption as ‘a substantive doctrine of federal securities-fraud law.’”
3. Example from Justice Barrett: “The phrase ‘foreign leader’ brings to mind ‘an official of a foreign state, not a team captain of a European football club.’ . . . So too with ‘foreign tribunal.’ ‘Tribunal’ is a word with potential governmental or sovereign connotations, so ‘foreign tribunal’ more naturally refers to a tribunal belonging to a foreign nation than to a tribunal that is simply located in a foreign nation.”