Academic Legal Writing - Eugene Volokh [14]
If you can, describe your claim to a faculty member who works in the field (besides your advisor), an honest classmate who's willing to criticize your ideas, and a lawyer who works in the field. If they think it's obvious, either refine your claim, or, if you're confident that the claim is in fact not obvious, refine your presentation to better show the claim's unexpected aspects.
E. Utility
You'll be investing a lot of time in your article. You'll also want readers to invest time in reading it. It helps if the article is useful—if at least some readers can come away from it with something that they'll find professionally valuable. And the more readers can benefit from it, the better.
1. Focus on issues left open
Say you think the U.S. Supreme Court's Doe v. Roe decision is wrong. You can write a brilliant piece about how the Court erred, and such an article might be useful to some academics. But Doe is the law, and unless the Court revisits the issue, few people will practically benefit from your insight.
You should ask yourself: How can I make my article more useful not just to radically minded scholars, but also to lawyers, judges, and scholars who aren't interested in challenging the existing Supreme Court caselaw here? One possibility is to identify questions that Doe left unresolved—or questions that it created—and explain how they should be resolved in light of Doe's reasoning, along with the reasoning of several other Supreme Court cases in the field. Such an article would be useful to any lawyer, scholar, or judge who's considering a matter that involves one of these questions.
2. Apply your argument to other jurisdictions
Say Doe holds that a certain kind of police conduct doesn't violate the Fourth Amendment. This makes Doe binding precedent as to the Fourth Amendment, but only persuasive authority as to state constitutions, because courts can interpret state constitutions as providing more protection from state government actors than the federal constitution does.
The claim “state courts interpreting their own state constitutional protections should reach a different result” is therefore more useful than just “the Court got it wrong.” Judges are more likely to accept the revised claim, lawyers are more likely to argue it, and academics are more likely to build on it. Your article will still be valuable to scholars who are willing to challenge the Court's case law, but it will also be valuable to many others.
3. Incorporate prescriptive implications of your descriptive findings
You can make a valuable contribution to knowledge just by uncovering some important facts: historical facts, facts about how judges or other government officials are applying a law, facts about how people or organizations react to certain laws, and so on. But your contribution would be still more valuable, and more impressive, if your claim also said something about how these findings are relevant to modern debates. You could come up with your own prescription based on the findings, or you could just explain how your findings might be relevant to others' prescriptive arguments, even if you don't endorse those arguments yourself.
Practical-minded people who read a purely descriptive piece will often ask “so what?” If you answer this question for them, you'll increase the chances that they'll see your work as useful. Don't do this if it's too much of a stretch: If there are no clear modern implications of your findings about 14th century English property law, you're better off sticking just with your persuasive historical claims rather than adding an unpersuasive prescriptive claim. But if you see some possible prescriptive implications, work them in.
4. Consider making a more politically feasible proposal
Say your claim is quite radical, and you're sure that few people will accept it, no matter how effectively you argue. For instance, imagine you want to urge courts to apply strict scrutiny to restrictions on economic liberty—a step beyond Lochner v. New York. You may have a great argument for that,