Slippery-slope arguments often invite guffaws, but they can still pack a punch. Conceding that your points have limits can stymie your opponent's plans to alarm the court with a parade of horribles. A plaintiff asking for big damages can explain why they're not infinite. And a defendant asserting that there's no breach of contract can conjure up a set of facts that would suggest otherwise. Take now-retired Justice Stephen Breyer's opinion in Torres v. Texas Department of Public Safety. Sure, he could have stopped at "you can't sue a nonconsenting state." But by revealing three other ways to sue a state, he makes the restriction on citizens seem more reasonable: Basic tenets of sovereign immunity teach that courts may not ordinarily hear a suit brought by any person against a nonconsenting State. ... States still remain subject to suit in certain circumstances. States may, of course, consent to suit. ... Congress may also enact laws abrogating their immunity under the Fourteenth Amendment. ... [and] States may be sued if they agreed their sovereignty would yield as part of the "plan of the Convention."[3]
4. Improve flow by starting a new paragraph with a nod to the end of the one before.
With so much legal writing copied and pasted and reordered these days, getting long passages to flow cohesively is tough. Sprinkling in logical signposts like "even so" or "in any event" can help. So can numbering and bullet points.
But one of the best ways to improve flow is to begin a paragraph not with a brand-new point but with something the reader will recall from the paragraph before.
Justice Neil Gorsuch is especially good at this technique. In Kennedy v. Bremerton School District, for example, he begins the second paragraph below with a question he imagines the reader might have had at the end of the first. And then in the third paragraph he uses the phrase "a different understanding" to sharpen the contrast he is about to draw: [T]he District argues that its suspension of Mr. Kennedy was essential to avoid a violation of the Establishment Clause. ... The Ninth Circuit pursued this same line of thinking, insisting that the District's interest in avoiding an Establishment Clause violation "'trump[ed]'" Mr. Kennedy's rights to religious exercise and free speech. ... But how could that be? It is true that this Court and others often refer to the "Establishment Clause," the "Free Exercise Clause," and the "Free Speech Clause" as separate units. ... A natural reading of that sentence would seem to suggest the Clauses have "complementary" purposes, not warring ones where one Clause is always sure to prevail ....
The District arrived at a different understanding this way. It began with the premise ....[4]
5. Imagine speaking to your reader, adding logical cues and even using second- person direct reference.
In an interview at Harvard Law School a few years ago, Justice Elena Kagan distinguished
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