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ing a false statement or willfully engaging in a scheme to defraud ?
According to the SEC , the answer is yes . 14
Judge Kavanaugh describes a realistic work-a-day situation in which the reader becomes the unwitting accomplice of the boss ’ s misdeeds . When I take Judge Kavanaugh ’ s suggestion , and imagine that I am working for such a boss , the implications are chilling . That ’ s the effect Judge Kavanaugh desires . He primes the reader for his legal argument about why the SEC is wrong by first making the reader experience the defendant ’ s predicament personally .
This opening also scores high on all key Plain English criteria mentioned above : Every sentence is in the active voice ; the average sentence length is eighteen words ; substantive transitions and explicit word transitions (“ however ,” “ then ,” “ too ”) create excellent flow and logical progression . The “ Flesch-Kincaid Grade Level Readability Formula ” measures the “ readability ” of a chosen text by assessing factors like active voice , sentence length , etc ., and then placing the text on a grade level . 15 This opening by Judge Kavanaugh scores an 8.5 , which means that it is written in “ Plain English ” and can be “[ e ] asily understood by 13- to 15-yearold students .” 16 You can use the Formula on your writing . What is the grade level of your writing ?
Judge Kavanaugh ’ s openings are a model of good legal writing : He starts with an attention-getting story rather than dry procedural history . He focuses on flow . He writes short sentences ( 17-20 words on average ). He uses the active voice . Techniques like this can make even complex cases understandable .
B . Strong Topic Sentences
The topic sentence is the most important sentence of any paragraph . The topic sentence expresses the main idea — the point you want to prove — for every paragraph . A good topic sentence “ ensures that each paragraph has its own cohesive content .” 17 Yale Law Professor Noah Messing , author of The Art of Advocacy , puts it this way : “ Think of each topic sentence as a jurisdictional statement for that paragraph . It tells you what the rest of the paragraph will discuss .” 18 Messing offers this challenge to legal writers : “ Perfect topic sentences make it possible to read only the first sentence of each paragraph and still follow the argument .” 19 Professor McAlpin also encourages legal writers to apply this strategy to their writing . She suggests creating a “ Topic Sentence Outline .” 20 Pull every topic sentence from the paragraphs of the Argument section of your brief . Put them in outline form . Is your argument understandable by reading just the outline of your topic
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sentences ?
Judge Kavanaugh can answer yes . Here are consecutive topic sentences from Judge Kavanaugh ’ s dissent in a case in which Indonesian citizens sued Exxon under the Alien Tort Statute ( ATS ) for atrocities allegedly committed by Indonesian soldiers protecting Exxon property in Indonesia ( quotation marks and citations omitted ):
I would dismiss the ATS claims because the torts alleged here occurred in Indonesia and the ATS does not extend to conduct that occurred in foreign lands .
It is a longstanding principle of American law that legislation of Congress , unless a contrary intent appears , is meant to apply only within the territorial jurisdiction of the United States .
The presumption against extraterritoriality serves to protect against unintended clashes between our laws and those of other nations which could result in international discord .
The presumption against extraterritoriality is focused on the site of the conduct , not the identity of the defendant .
This canon of construction is deeply rooted .
The canon remains to this day an essential part of the Supreme Court ’ s jurisprudence .
In applying the presumption against extraterritoriality , we look to see whether language in the relevant Act gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or some measure of legislative control .
Here , the spare text of the ATS does not support application of the law to conduct in foreign lands .
The ATS ’ s historical context likewise provides no basis for rebutting the presumption against extraterritoriality .
Under the Articles of Confederation , which were in effect from 1781 until the U . S . Constitution was ratified in 1788 , the U . S . Government lacked authority to remedy or prevent violations of the law of nations .
After ratification of the Constitution in 1788 , the First Congress addressed this problem in 1789 by enacting the Alien Tort Statute , which was part of Section 9 of the Judiciary Act of 1789 .
The purpose and background of the ATS — avoiding conflict with foreign nations — thus reinforce the presumption against extraterritoriality . 21
Each of these topic sentences is followed by a paragraph of varying length full of authority supporting the proposition . The argument spans four pages of the Federal Reporter
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, yet the busy reader can understand Judge Kavanaugh ’ s argument by quickly reading just the topic sentences . Space does not allow me to show you other examples that illustrate this point , but my reading of dozens of Judge Kavanaugh ’ s opinions reveals that he consistently passes the “ Topic Sentence Outline ” test .
C . Effective Use of Lists
Numbering your arguments helps you organize your thoughts and also allows the reader to focus on your main points . Ross Guberman , author of several legal writing guidebooks , encourages writers to number their points in lists : “ The top advocates love lists . . . . Nothing helps a brief hold together better than a list of legal , factual , or common-sense reasons that you should prevail .” 22 Judge Kavanaugh frequently lists his main points by number . Here is one example from a case in which a group of atheists , secularists , and humanists sued to remove religion from the presidential inauguration ceremony , including opening prayers and the phrase “ So help me God ” in the presidential oath . In his concurrence , Judge Kavanaugh summarized his position on the Establishment Clause claim . Each of these points begins a paragraph , but , as I noted above , you can understand his argument from the topic sentences alone :
In analyzing the Establishment Clause issues in this case , I begin with several background principles .
First is the obvious point [ that ] . . . . all citizens are equally American , no matter what God they worship or if they worship no god at all .
Second , in deciding this case , we cannot gloss over or wish away the religious significance of the challenged Inaugural prayers .
Third , and relatedly , we cannot resolve this case by discounting the sense of anguish and outrage plaintiffs and some other Americans feel at listening to a government-sponsored religious prayer .
Fourth , at the same time , we likewise cannot dismiss the desire of others in America to publicly ask for God ’ s blessing on certain government activities and to publicly seek God ’ s guidance for certain government officials . 23
This list effectively captures the key premises of Judge Kavanaugh ’ s argument in an orderly and succinct way . ( Judge Kavanaugh ultimately relied on the Supreme Court case of Marsh v . Chambers to conclude that prayer at government events is “ part of the fabric of our society .”) Simply numbering your arguments , especially in the introduction to your brief , can focus the reader ’ s attention on the
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