Contrast and legal writing
Contrast gets and keeps attention. Our senses tell us this. Our vision is contrast-based; if all the world were made of purple cloth, we wouldn’t see anything–not even the purple. If all sounds were the same pitch and frequency, we might as well not hear anything. If we had to touch naught but the same texture, we probably wouldn’t feel anything. If we had to eat the same flavors and textures all the time, it would be extremely dull at best.
This craving for contrast extends to what we read. This contrast can manifest in several ways, but I highlight only a few here.
1. Contrasting terms. Justice Barrett showed this in her recent (and very brief) opinion in Acheson Hotels, LLC v. Laufer, 22-429. “[M]ootness is easy and standing is hard”; “Though Laufer’s case is dead, the circuit split is very much alive.”; “[W]e should settle the issue now rather than repeating the work later.” Easy/hard, dead/alive, now/later give a pleasant sense of contrast and closure, and have a pleasing, back-and-forth cadence of sound as well as of concept.
2. Contrasting sentence length.
A. Using long sentences to set up short ones. With this technique, the shorter sentence acts as a summary of the concepts in the longer ones. For example, Justice Holmes in his dissent in Abrams v. United States (1919): But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas–the best of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of the Constitution. It is an experiment, as all life is an experiment.”
B. Using short sentences to set up long ones. The short sentences build momentum that highlights the long-form explanation. This one from G.K. Chesterton’s The Tyranny of Bad Journalism (1917): “The point about the Press is that it is not what it is called. It is not the ‘popular Press.’ It is not the public Press. It is not an organ of public opinion. It is a conspiracy of a very few millionaires, all sufficiently similar in type to agree on the limits of what this great nation (to which we belong) may know about itself and it friends and enemies.” Notice here how he also uses the contrast of “it is not..it is” and “friends and enemies.” These things can be layered.
Judge Bibas also did this very well in Trump for President v. Secretary Commonwealth of Pennsylvania (3d Cir. 2020): “Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law. No federal law requires poll watchers or specifies where they must live or how close they may stand when votes are counted. Nor does federal law govern whether to count ballots with minor state-law defects or let voters cure those defects. Those are all issues of state law, not ones that we can hear.” He sets up his thesis with a set of tersely stated premises, which makes his point more forceful.
C. Contrasting syntax. If you want to make an idea stand out, then change up your syntax a bit. The usual English construction is subject-verb-object. But you can change that up (if you do it in the right way) without any change in meaning. Chief Justice Roberts often does this. For example, in Trump v. Vance: ” Fallen from political grace after his fatal duel with Alexander Hamilton, and with a murder charge pending in New Jersey, Burr followed the path of many down-and-out Americans of his day—he headed West in search of new opportunity.” The delay of the subject is unexpected, grabs attention, and puts the focus on something other than the actor.
There are many ways to add contrast to your writing. Practice these techniques and use them purposefully, and watch your writing come to life.