Language Appropriate for Comparing a Fact Pattern to a Case

General Advice Make sure you are specific about which Amendment and which clause or clauses of that Amendment have (or have not) been violated—don’t just say “constitutional” or “not constitutional.” Rather, specify, e.g. “X would most likely be considered unconstitutional under the Establishment Clause of the First Amendment.”

General Advice If you are dealing with a set of facts from a particular state, make sure to mention the case under which a particular Amendment or clause of an Amendment made that provision applicable to the states, e.g. “The Establishment Clause of the First Amendment was made applicable to the states in X case” (include case citation.) Use hedging language, even if you are sure that you are right (see slide #8—last slide), e.g. “This provision likely violates…” (Do NOT say “This provision violates…”)

General Advice Even if the facts you are given are similar to those of the case you are citing, you should still point out differences you find that might be material, to prove that you have read the facts carefully. You can then go on to explain that the differences are probably not significant enough to warrant a different outcome from the one in the case you are citing. (Unless, of course, the differences are substantial, in which case your conclusion would be different.)

Language Needed SIGNAL WORDS (This is NOT an exhaustive list!) Analogizing: similarly; likewise; in the same way; quite similar/close to; close/similar enough Distinguishing: different from; unlike; in contrast; on the other hand; quite different from; different enough that…; whereas; while; although

Language Needed SIGNAL WORDS (This is NOT an exhaustive list!) Distinguishing but then concluding that the distinctions are not large enough to affect the outcome: In spite of these differences…/Although there are some (minor) differences… Not enough information given: It is not clear from the facts whether X or Y/The facts do not make it clear whether X or Y/ The facts are not clear on whether X or Y/There is a possible issue regarding…/If we assume that X then Y

Hedging (Again, not at all an exhaustive list!) It is unlikely/likely that… It is probable that… There might be (a violation of)… X might be considered a violation of Y if… X could be considered a violation of Y X requirement is likely a violation of Y X would probably (not) be considered a violation of Y X(most) likely violates Y X probably does not violate Y