Take the passage below, from Chief Justice John Roberts' opinion in Biden v. Texas. It has no legalese, passive voice or long sentences.
Yet imagine if instead of beginning with "in short," he used "by way of summary."
In short, we see no basis for the conclusion that section 1252(f )(1) concerns subject matter jurisdiction. It is true that section 1252(f )(1) uses the phrase "jurisdiction or authority," rather than simply the word "authority." But "[j]urisdiction ... is a word of many, too many meanings." ... And the question whether a court has jurisdiction to grant a particular remedy is different from the question whether it has subject matter jurisdiction over a particular class of claims. ... Section 1252(f )(1) no doubt deprives the lower courts of "jurisdiction" to grant classwide injunctive relief. ... But that limitation poses no obstacle to jurisdiction in this Court.[8]
Also consider the effects of the following substitutions:
"Utilizes" instead of "uses";
•
• "In lieu of" instead of "rather than";
• "Nevertheless" instead of "but" at the start of the third sentence;
• "Furthermore" instead of "and" at the start of the fourth sentence;
• "Whether or not" instead of "whether";
• "Regarding a particular class of claims" instead of "over a particular class of claims";
• "Doubtlessly" instead of "no doubt";
• "But such limitation" instead of "but that limitation."
Point made?
8. Deepen your advocacy by contextualizing public law, the common law, or both.
The example above from Justice Barrett shows the value of explaining why and how a result makes sense. But it can be just as effective to explain the basis for the governing law itself.
In Concepcion v. United States, for example, Justice Sonia Sotomayor highlights the links between a particular statute — the First Step Act — and a particular approach to sentencing that she seek to invoke. With that context in mind, she's able to frame the act in a way that bolsters the broader arguments she's about to make: There is a longstanding tradition in American law, dating back to the dawn of the Republic, that a judge at sentencing considers the whole person before him or her "as an individual." ... In line with this history, federal courts today generally "exercise a wide discretion in the sources and types of evidence used" to craft appropriate sentences. ... [W]hen a defendant's sentence is set aside on appeal, the district court at resentencing can (and in many cases, must) consider the defendant's conduct and changes in the Federal Sentencing Guidelines since the original sentencing. ...
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