Tuesday, March 15, 2016

Transition Ambition

This time every year, when I’m grading student briefs, I’m always reminded that learning the basics of legal analysis and writing isn’t enough to make you a good writer. Being a good writer is also about telling a good story—one that flows logically; one that the reader can follow. Adding transitions won't fix dissonance, but transitions can certainly aid understanding.

Judge Neil Gorsuch
Take the writing of Judge Neil Gorsuch of the Tenth Circuit Court of Appeals. Judge Gorsuch’s writing has many rhetorical flairs, but his transitions are a hallmark. 

Judge Gorsuch likes to start paragraphs with sharp, short sentences. These sentences do double-duty; they both bridge the gap between paragraphs and serve as thesis sentences. Judge Gorsuch’s masterful transitions connect the concepts he’s writing about and vastly increase the reader’s understanding of the facts and law. Let’s take a look at several examples:

The questions presented in Freeman were whether and when an initial sentence imposed (as here) under a Rule 11(c)(1)(C) plea agreement—an agreement in which the defendant and the prosecutor stipulate to a sentence that the court must impose if it accepts the plea agreement—can be said to be “based on” a guidelines range.

Freeman produced a fractured result. Four justices, representing a plurality of the court, indicated that they would “permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement.”

United States v. Fields, 500 Fed. Appx. 755 (10th Cir. 2012).


Any and all § 924(c)(1)(A) sentences Mr. Rentz receives must themselves be served consecutively to, not concurrently with, any sentences associated with his underlying crimes of violence (assaulting the first victim, murdering the second).

Cases like Mr. Rentz's are hardly unusual. In an age when the manifest of federal criminal offenses stretches ever longer, a parsimonious pleader can easily describe a defendant's single use of a firearm as happening “during and in relation to” multiple qualifying crimes. Like when a defendant shoots a potential witness against him—committing at once the separate crimes of murder and the killing of a witness.

United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015).


RLUIPA may be a “super statute,” capable of mowing down inconsistent laws, but to win its application takes no small effort. A plaintiff must carry at least two burdens, and even then can still lose if the government bears two burdens of its own.

Take the plaintiff's burdens first. RLUIPA requires us to ask whether an inmate's (1) religious exercise is (2) substantially burdened by prison policy.

Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014).

I’m a fan of short, zippy transitions (e.g., and, but, so) over clunkier ones that lawyers often favor (e.g., therefore, furthermore, notwithstanding). But Judge Gorsuch takes transitions to a whole new stratosphere. 

I’m working on mimicking them in my own writing! 

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