Academic Legal Writing - Eugene Volokh [103]
1. “A survey of the decisions in the United States courts of appeals over the ten years preceding Smith reveals that ... courts overwhelmingly sided with the government when applying that test.”
2. “[E]nacting the RFRA in order to reestablish the compelling interest test is [therefore] a largely futile endeavor,” especially given the limits on Smith's holding set forth in Smith itself.
3. While religious claimants often lose in court, they “experience relative success in the political arena,” especially through their ability “to form coalitions,” so asking legislatures for specific statutory exemptions is likely to be a much more effective tactic than relying on a judicially enforced compelling interest test.
Why was this claim so effective? First, it ran contrary to established wisdom, and was therefore novel and nonobvious. This is what ¶ 1 to ¶ 7 of the Introduction aim to show.
Second, it was ambitious in scope: It dealt with an entire constitutional clause, the Free Exercise Clause, not just (say) the Free Exercise Clause analysis of drug laws or of some similar corner of the law.
Third, it dealt with an enduring problem: As the debate over Smith and RFRA illustrated at the time, the argument about the merits of judicially defined religious exemptions wasn't likely to go away. And the years since have shown that the debate indeed hasn't gone away.
Fourth, the article offered an answer based on a comprehensive dataset: not just a couple of court decisions picked because the author thought they were erroneous or otherwise especially interesting, but all 97 federal appellate decisions decided during the decade before Smith. This helped persuade readers that the author has really discovered something about the way federal courts generally behave in religious freedom cases, and not just about how a few courts have behaved.
Fifth, the answer was striking, as we'll see in more detail below: The results weren't just mixed, or less protective of religious freedom than one might expect, but extraordinarily unfavorable to religious exemption claims. As the article points out later, exactly one federal appellate decision would likely have come out differently under the Smith regime than it did under the pre-Smith regime. (This might have been worth mentioning in the Introduction.)
Sixth, the Introduction and the rest of the article set forth the claim in an effective style and tone. The writing is clear. It is light on rhetoric, and on abstract generalities, and heavy on the specific and concrete (whether it's talking about the cases, or giving examples of the position that it is rejecting).
It also has a confident scholarly tone. It sounds like something written by an expert on the field. In fact, it was written by an expert in the field: Even a second-year law student will become an expert on his chosen topic when he writes a law review article. But some student writers are unduly diffident, either in tone or in substance. This article, by contrast, is neither too aggressive nor too deferential—note, for instance, how it's willing to calmly and politely take on some of the giants in the field (see ¶ 4).
The Introduction might have been better still if it stated the claim near the front, perhaps along these lines:
The Supreme Court's decision in Employment Division v. Smith has been sharply criticized by scholars, members of Congress, journalists, and religious interest groups. Professors Edward M. Gaffney, Douglas Laycock, and Michael W. McConnell, for instance, described the decision as a “sweeping disaster for religious liberty.” Congressman Stephen J. Solarz said that, “With the stroke of a pen, the Supreme Court has virtually removed religious freedom from the Bill of Rights.”
And indeed Smith seemed to sharply reduce the scope of the Free Exercise Clause.