Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, May 19, 2022

Writing like Justice Kagan, part I

Inspired by Ross Guberman, who has a long-running series like this, I am going to try my hand at highlighting some effective writing techniques that I noticed while reading Justice Kagan's opinion in Gundy v. United States this term. 

1., 2. Syllogistic open and bottom line up front: "The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government. This case requires us to decide whether 34 U.S.C. § 20913(d), enacted as part of the Sex Offender Registration and Notification Act (SORNA), violates that doctrine. We hold it does not. Under § 20913(d), the Attorney General must apply SORNA’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment. That delegation easily passes constitutional muster."

An effective legal syllogism--usually used in questions presented--has a little bit of law, a few choice facts, and a conclusion that is either express or implied. Here, Justice Kagan gives a little law on the nondelegation doctrine, outlines a few facts that show this case does not fit that law, then tells the reader the conclusion. Also, as a practitioner, I appreciate getting the court's conclusion as soon as I start reading--I hate scanning for a holding in one of my cases.

3. Make it about people: "The basic registration scheme works as follows. A “sex offender” is defined as “an individual who was convicted of” specified criminal offenses: all offenses “involving a sexual act or sexual contact” and additional offenses “against a minor.”34 U.S.C. §§ 20911(1), (5)(A), (7). Such an individual must register—provide his name, address, and certain other information—in every State where he resides, works, or studies. See §§ 20913(a), 20914. And he must keep the registration current, and periodically report in person to a law enforcement office, for a period of between fifteen years and life (depending on the severity of his crime and his history of recidivism). See §§ 20915, 20918."

Instead of just talking about what the statute says, Justice Kagan walks through what the statue requires a person to do. This is much more engaging than just talking about the statute in the abstract.

4., 5. Tell 'em what you told 'em and use natural labels: "The provision states: 'The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter ... and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).' Subsection (d), in other words, focuses on individuals convicted of a sex offense before SORNA’s enactment—a group we will call pre-Act offenders."

Nobody likes block quotes, but sometimes you need them. When you use them, do what Justice Kagan does--use lead-ins and or after-explanations so that the reader will get the gist of the quote even if they skip it (which is likely). She also naturally weaves in labels for things ("a group we will call...") rather than using the stilted "hereinafter."

6. Use colloquial language when appropriate: "So we have held, time and again, that a statutory delegation is constitutional as long as Congress 'lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.'"

Justice Kagan could have easily said something like "repeatedly" or "long," but "time and again" adds emphasis without distracting from the point. It's refreshing, and helps speed the reader along.

I have a lot more thoughts on this opinion. More next week.



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