Thread by @bethwilensky

Let's talk about distinguishing cases! I often see students make the error that the 5th Circuit made here. But my students are 1Ls; I *expect* them to make this error, and it's my job to point it out. So what, exactly, did the 5th Circuit get wrong? /1

https://twitter.com/OrinKerr/status/1370320726842953730

I'll leave the substantive Bivens question to the experts. But here's the writing point I want my students to learn: When distinguishing cases, it's not enough to say "here are ways in which the facts of this case differ from the facts of that case." /2

You also have to explain *why those differences are legally significant.* Every case is different from the precedent case in a bunch of ways. But it's the "why should these differences lead to a different outcome" explanation that makes the legal analysis sound. /3

So, respectfully, perhaps some 5th Circuit judges need a refresher from their LRW course? (Or - really - any decent 1L course. Every time we discuss hypotheticals we are really asking "Should these slightly different facts lead do a different outcome? Why or why not?") /fin