Logical Transition Examples—To Give an Example

All the Greats convey complex legal problems through simple but evocative examples. You can begin to do so too by incorporating the phrases below into your daily brief writing.  

• Case citations have been replaced by “.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

As an example

1. Example from Don Verrilli: “The letter observed that the Senate might foreclose the President’s use of recess-appointment authority by declining to go into recess for more than three days. . . . As an example, it added-in one sentence and without further analysis—that the Senate declined to recess for more than three days for an extended period beginning in late 2007, in evident reference to the Senate’s practice of convening pro-forma sessions during that period.”
2. Example from Paul Clement: “The reality is that those other provisions fall, if at all, not because of an independent defect that must be supported by independent standing, but as a remedial consequence of the earlier action. To take the insurance market provisions as an example, insurance companies certainly have standing to challenge the guaranteed issue and community rating provisions, but they have little incentive to challenge the individual mandate.”
3. Example from Kannon Shanmugam: “The court of appeals further suggested that the government could circumvent the territorial-jurisdiction limitation simply by using a listening post in the issuing judge’s jurisdiction. . . . Taking this case as an example, the court speculated that, ‘if law enforcement had wanted to obtain a wiretap order from a judge in Nebraska, law enforcement could use a listening post in Nebraska even though none of the underlying events or suspected co-conspirators bore any connection to Nebraska.’”

As in

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   Example from Chief Justice Roberts: “Consequently, it is unnecessary to resolve whether the Vienna Convention is itself ‘self-executing’ or whether it grants Medellin individually enforceable rights. . . . As in Sanchez-Llamas, . . . , we thus assume, without deciding, that Article 36 grants foreign nationals ‘an individually enforceable right to request that their consular officers be notified of their detention, and an accompanying right to be informed by authorities of the availability of consular notification.’”

2. Example from Justice Thomas: “In articulating those limits, courts simultaneously began to crystalize the framework for aiding and abetting that Halberstam identifed and applied. . . . As in Halberstam, that framework generally required what the text of § 2333(d)(2) demands: that the defendant have given knowing and substantial assistance to the primary tortfeasor.”
3. Example from Solicitor General Prelogar: “DHS has been forced to halt all implementation of the Guidelines, and thousands of ICE officers around the country have been told that they may not rely on the Secretary’s instructions. Just as in Aleman Gonzalez, therefore, the court’s order ‘require[s] officials to . . . refrain from actions that,’ ‘in the Government’s view,’ ‘are allowed by’ Sections 1226(c) and 1231(a).”

By way of example

1. Example from Justice Gorsuch: “In Gibbons v. Ogden, Chief Justice Marshall recognized that the States’ constitutionally reserved powers enable them to regulate commerce in their own jurisdictions in ways sure to have ‘a remote and considerable infuence on commerce’ in other States. . . . By way of example, he cited ‘[i]nspection laws, quarantine laws, [and] health laws of every description.’”
2. Example from Don Verilli: “By way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage. . . . In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.”
3. Example from Justice Sotomayor: “Consider, by way of example, a hypothetical version of Beckles’ own sentencing proceeding in which the commentary played no clarifying role. Beckles was convicted of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and sentenced to 360 months in prison. That sentence sat at the bottom end of the applicable Guidelines range, factoring in the career-offender Guideline: 360 months to life. But had the career-offender Guideline not applied to Beckles, the Guidelines range calculated by the District Court would have been significantly lower: 262 to 327 months. . . . Absent that Guideline, Beckles would have been sentenced to between 33 and 98 fewer months in prison. The District Court admitted as much, explaining that had the Guideline not applied, she ‘would not have imprisoned Beckles to 360 months’ in prison.”

First, Second, Third, etc.

1. Example from Chief Justice Roberts: “Justice Ginsburg contends that if the Tribal Court has jurisdiction over the Longs’ other claims, it is hard to understand why jurisdiction would not also extend to the discrimination claim. . . . First, we have not said the Tribal Court has jurisdiction over the other claims: That question is not before us and we decline to speculate as to its answer. Moreover, the claims on which the Longs prevailed concern breach of a loan agreement, . . . , and bad faith in connection with Bureau of Indian Affairs loan guarantees, . . . The present claim involves substantive regulation of the sale of fee land.”
2. Example from Justice Kagan: “First, a district court may not ‘award[ ] attorney’s fees as a matter of course’; rather, a court must make a more particularized, case-by-case assessment. . . . Second, a court may not treat prevailing plaintiffs and prevailing defendants any differently; defendants should be ‘encouraged to litigate [meritorious copyright defenses] to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement.’ . . . In addition, we noted with approval ‘several nonexclusive factors’ to inform a court’s fee-shifting decisions: ‘frivolousness, motivation, objective unreasonableness[,] and the need in particular circumstances to advance considerations of compensation and deterrence.’”
3. Example from Justice Sotomayor: “I join the Court’s opinion, which makes a coherent whole of a thorny section of statutory text. I write separately to make two observations: First, this is a close case, and today’s opinion does not prevent Congress from clarifying this statute if we have gotten it wrong. Second, as the Court makes clear, ‘enforcing a security interest does not grant an actor blanket immunity from the’ mandates of the Fair Debt Collection Practices Act (FDCPA)[.]”

For example

1. Example from Chief Justice Roberts: “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by § 5 than it is nationwide.”
2. Example from Justice Kagan: “In others, courts found those rules to comport with the applicable contract term. For example, in Svea Assurance Co. v. Packham, . . .—the case McCutchen calls his best, . . .—the court viewed the double-recovery rule as according with ‘the intention’ of the contracting parties; ‘[b]road as [the] language is,’ the court explained, the agreement ‘cannot be construed to’ give the insurer any greater recovery.”
3. Example from Justice Kavanaugh: “I would not upset our rule of lenity case law by making the ambiguity trigger any easier to satisfy. For example, I would not say that any front-end ambiguity in the statute justifies resort to the rule of lenity even before exhausting the tools of statutory interpretation.”

For instance

1. Example from Justice Kagan: “Some of the Reform Act’s provisions made substantive changes to the 1933 and 1934 laws, and applied even when a 1933 Act suit was brought in state court. For instance, the statute created a ‘safe harbor’ from federal liability for certain ‘forward-looking statements’ made by company officials.”
2. Example from Justice Sotomayor: “As the Court of Appeals observed, the ‘examples are easily understood,’ as they contemplate the use of an original work to ‘serv[e] a manifestly different purpose from the [work] itself.’ . . . Criticism of a work, for instance, ordinarily does not supersede the objects of, or supplant, the work. Rather, it uses the work to serve a distinct end.”
3. Example from Justice Jackson: “The majority’s rule also prevents courts from crafting case-specific solutions to balance all the interests at stake. Under the traditional discretionary-stay rule, for instance, a judge could allow the parties to conduct only the forms of discovery that would also be permitted in arbitration. That would save time and leave nobody worse off even if, as the majority fears, the dispute ultimately heads to arbitration.”

For one (thing)

1. Example from Justice Scalia: “The parentheses cannot bear that much weight, given the compelling textual evidence to the contrary. For one thing, the terms reappear later in the same sentence sans parentheses—in the phrase ‘such valuation or adjusted basis.’”
2. Example from Justice Barrett: “I am surprised that the Court is moved by this administrative guidance. For one thing, even Bittner concedes that the materials do not speak directly to the question presented in this case: whether additional penalties may accrue when a person fails to report multiple accounts on a single form.”
3. Example from Justice Jackson: “We detect multiple problems with the Special Master’s reasoning. For one, the Special Master did not explain why the statute uses the amorphous phrase ‘third party bank check’ to capture specific financial instruments that, according to the Special Master, were well known at the time of the enactment of the statute.”

Imagine

1. Example from Justice Scalia: “An example will illustrate just how illusory the proposed line between ‘jurisdictional’ and ‘nonjurisdictional’ agency interpretations is. Imagine the following validly-enacted statute: . . . .”
2. Example from Neal Katyal: “Imagine some examples. You are a poet considering the title ‘Having a Coke with You,’ . . . , a novelist considering the title ‘Breakfast at Tiffany’s,’ . . . , or a songwriter considering the title ‘Barbie Girl’ for a song meant to ‘poke fun at Barbie and the values [you] contend she represents,’ . . . . Can you use those titles?”
3. Example from Justice Kagan: “The HEROES Act, as Congress designed it, would give him the identical power to address similar terrorist attacks in the future. So imagine the horrific. A terrorist organization sets off a dirty bomb in Chicago. Beyond causing deaths, the incident leads millions of residents (including many with student loans) to flee the city to escape the radiation. They must find new housing, probably new jobs. And still their student-loan bills are coming due every month. To prevent widespread loan delinquencies and defaults, the Secretary wants to discharge $10,000 for the class of affected borrowers. Is that legal? Of course it is; it is exactly what Congress provided for.”

Including

1. Example from Justice Kagan: “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.”
2. Example from Justice Sotomayor: “People’s tribute, like Condé Nast’s, honors the life and music of Prince. Other magazines, including Rolling Stone and Time, also released special editions. . . . All of them depicted Prince on the cover. All of them used a copyrighted photograph in service of that object. And all of them (except Condé Nast) credited the photographer.”
3. Example from Justice Thomas: “In other words, the defendant has to take some ‘affirmative act’ ‘with the intent of facilitating the offense’s commission.’ . . . Such intentional participation can come in many forms, including abetting, inducing, encouraging, soliciting, or advising the commission of the offense, such as through words of encouragement or driving the getaway car.”

In that regard

1. Example from Justice Kagan: “It thereby prevents election officials from flouting, circumventing, or discounting Section 2’s command not to discriminate. In that regard, the past offers a lesson to the present. Throughout American history, election officials have asserted anti-fraud interests in using voter suppression laws.”
2. Example from Justice Kavanuagh: “Judges may likewise disagree about the severity of the jurisprudential or real-world consequences caused by the erroneous decision and, therefore, whether the decision is worth overruling. In that regard, some judges may think that the negative consequences can be addressed by narrowing the precedent (or just living with it) rather than outright overruling it. Judges may also disagree about how to measure the relevant reliance interests that might be affected by an overruling. And on top of all of that, judges may also disagree about how to weigh and balance all of those competing considerations in a given case.”
3. Example from Justice Ginsburg: “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.”

Like

1. Example from Justice Kagan: “So-called revocation-on divorce statutes treat an individual’s divorce as voiding a testamentary bequest to a former spouse. Like the old common-law rule, those laws rest on a ‘judgment about the typical testator’s probable intent.’”
2. 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.”
3. Example from Justice Gorsuch: “Alternatively, they would have us prevent a State from regulating the sale of an ordinary consumer good within its own borders on nondiscriminatory terms—even though the Pike line of cases they invoke has never before yielded such a result. Like the courts that faced this case before us, we decline both of petitioners’ incautious invitations.”

Say

1. Example from Justice Jackson: “Take, for example, a case in which crucial evidence would be lost if discovery is delayed. Say a witness is on her deathbed. Under the majority’s rule, if an interlocutory arbitrability appeal under §16(a) is pending, discovery must be stayed and the evidence must be lost.”
2. Example from Deepak Gupta: “The answer—and criminal liability—hinges on how the prices are communicated. . . . Say that the sandwich costs $10 with a $0.20 credit-card surcharge, and the answer is $10. Say that it costs $10.20 with a $0.20 cash discount, and the answer is $10.20. Say that it costs $10 for cash and $10.20 for credit, and the answer (maybe?) depends on how an employee characterizes the difference in a conversation.”
3. Example from Justice Kagan: “You are a party in a case going to trial; let’s say you have filed suit against the government for violating one of your legal rights. The judge bangs his gavel to call the court to order, asks a minister to come to the front of the room, and instructs the 10 or so individuals present to rise for an opening prayer. The clergyman faces those in attendance and says: ‘Lord, God of all creation,…. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength … from his resurrection at Easter. Jesus Christ, who took away the sins of the world, destroyed our death, through his dying and in his rising, he has restored our life. Blessed are you, who has raised up the Lord Jesus, you who will raise us, in our turn, and put us by His side…. Amen.’ . . . The judge then asks your lawyer to begin the trial.”

Such as

1. Example from Justice Kagan: “If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.”
2. Example from Justice Kavanaugh: “Coinbase concedes that the district court may still proceed with matters that are not involved in the appeal, such as the awarding of costs and attorney’s fees.”
3. Example from Justice Jackson: “Thus, the FDA naturally applies to prepaid instruments, such as money orders, given that those instruments are of a type likely to implicate the FDA’s escheatment rules.”

Suppose

1. Example from Chief Justice Roberts: “This restriction makes no sense, and can readily lead to bizarre results. Suppose a defendant at the certification stage submits an event study looking at the impact on the price of its stock from six discrete events, in an effort to refute the plaintiffs’ claim of general market efficiency. All agree the defendant may do this. Suppose one of the six events is the specific misrepresentation asserted by the plaintiffs. All agree that this too is perfectly acceptable. Now suppose the district court determines that, despite the defendant’s study, the plaintiff has carried its burden to prove market efficiency, but that the evidence shows no price impact with respect to the specific misrepresentation challenged in the suit. 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: “An analogy may help show the weakness of Abramski’s argument. Suppose a would-be purchaser, Smith, lawfully could own a gun. But further suppose that, for reasons of his own, Smith uses an alias (let’s say Jones) to make the purchase. Would anyone say ‘no harm, no foul,’ just because Smith is not in fact a prohibited person under §922(d)? We think not.”
3. Example from Neal Katyal: “Take a couple of examples. Suppose a motorist traveling from New York to Massachusetts hits a pedestrian in Massachusetts, and the pedestrian sues in Connecticut on the theory that but for the motorist’s use of Connecticut’s roads, he never would have arrived in Massachusetts. Or suppose a lawyer commits malpractice in Virginia, and the client sues in Massachusetts, arguing that if the lawyer had not gone to law school in Cambridge, he never would have become an attorney. Under a but-for-only approach, the ‘arise out of or relate to’ requirement would be satisfied in each of these cases, even though the defendant’s contacts with the forum have only the most attenuated connection with the plaintiff’s claims.”

Take

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   Example from Justice Scalia: “The zone-of-interests test is not the only concept that we have previously classified as an aspect of ‘prudential standing’ but for which, upon closer inspection, we have found that label inapt. Take, for example, our reluctance to entertain generalized grievances—i.e., suits ‘claiming only harm to [the plaintiff’s] and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large.’”

2. Example from Justice Kagan: “And under those rules, as we have shown, §1425(a) demands a means-end connection between a legal violation and naturalization. . . . Take 1015(a)’s bar on making false statements in connection with naturalization—the prototypical §1425(a) predicate, and the one at issue here. If such a statement (in an interview, say) has no bearing at all on the decision to award citizenship, then it cannot render that award—as §1425(a) requires—illegally gained.”
3. Example from Lisa Blatt: “And product labels on commercial products routinely tell stories. Take this case. Jack Daniel’s is every bit as, if not more, expressive than Bad Spaniels.”

To illustrate

1. Example from David Frederick: “In a revenue-sharing arrangement, a mutual fund pays a portion of the fees it charges investors to an entity that provides administrative services to a retirement plan. To illustrate, an employer that sponsors a retirement plan might hire an outside firm to provide administrative services to the plan. If the plan included as an investment option a mutual fund that offers revenue sharing, the outside service provider would receive revenue-sharing payments from that fund.”
2. Example from Don Verilli: “The problem is thus not amenable to the kind of simplistic proportionality approach the court of appeals thought unambiguously required, and the Act provides no indication that Congress intended to dictate that methodology. To illustrate, first consider a downwind nonattainment area (Area A) that receives relatively equal amounts of pollution contributions from three upwind States, X, Y, and Z. A strict proportionality requirement would compel the EPA to identify the portion of the problem attributable at one specific point in time to each upwind State and then divide the upwind share among States X, Y, and Z ‘in proportion to the size of their contributions to the downwind State’s nonattainment.’ . . . The court of appeals built its proportionality interpretation of the good neighbor provision entirely on its application to such a scenario.”
3. Example from Justice Thomas: “Although the terms, in isolation, may have been somewhat ambiguous, that ambiguity does not preclude respondents from having learned their correct meaning—or, at least, becoming aware of a substantial likelihood of the terms’ correct meaning. To illustrate why, consider a hypothetical driver who sees a road sign that says ‘Drive Only Reasonable Speeds.’ That driver, without any more information, might have no way of knowing what speeds are reasonable and what speeds are too fast. But then assume that the same driver was informed earlier in the day by a police officer that speeds over 50 mph are unreasonable and then noticed that all the other cars around him are going only 48 mph. In that case, the driver might know that ‘Reasonable Speeds’ are anything under 50 mph; or, at the least, he might be aware of an unjustifiably high risk that anything over 50 mph is unreasonable.”