Academic Legal Writing - Eugene Volokh [142]
Here, for instance, is an adequate abstract, adequate because it quickly captures the essence of the value added by the article:
People often argue that symbolic expression—especially flag burning—isn't really “speech” or “press,” and that the Court's decisions protecting symbolic expression are thus illegitimate.
But it turns out that the original meaning of the First Amendment likely includes symbolic expression. Speech restrictions of the Framing era routinely treated symbolic expression the same as literal “speech” and “press.” Constitutional speech protections of that era did so as well, though the evidence on this is slimmer. And the drafting history of the phrase “the freedom of speech, or of the press,” coupled with the views of leading commentators from the early 1800s, suggests that the First Amendment's text was understood as protecting “publishing,” a term that at the time covered communication of symbolic expression and not just printing. Though the Court has never relied on this evidence, even originalists ought to accept the Court's bottom line conclusion that the First Amendment covers symbolic expression.
The first sentence does three things. First, it notes the general topic of the article—the First Amendment and symbolic expression generally. Second, the sentence identifies the specific focus of the article, which is whether the text of the First Amendment must be read as protecting only “speech” and “press” and not symbolic expression. Third, the sentence quickly provides a concrete illustration (flag burning) of the abstraction (symbolic expression).
The second sentence explains the article's claim: The original meaning of the First Amendment likely covers symbolic expression. Readers who stop reading there will at least remember something like “There's an article that says that even originalists should approve of the Court's flag-burning decisions.”
That would be an oversimplification of the article's claim, but that's fine—any one-sentence summary that lingers in people's minds will inevitably oversimplify. The important thing is that if the issue comes up for readers in the future, they might well search for the article, find it, read it, and use it. And, if the author is lucky, maybe some readers will be interested enough to actually read the article right away, or at least move from reading the abstract to reading the Introduction.
The next three sentences quickly summarize the main arguments that the article uses to support its claim. These arguments—here, historical assertions, though for another article they might be normative arguments or empirical findings—are part of the contribution that the article offers. Again, the summary is an oversimplification, and as a result may not be entirely clear to all readers. But it should at least give the reader a glimpse of the observations that the article makes.
Finally, the last sentence ties the argument to the caselaw: The sentence explains that this is an article that offers historical support for the Court's precedents, rather than an article that argues against the Court's precedents.
Many authors try to fit an abstract into one paragraph, and some journals seem to prefer that. I advise against this, unless the abstract has to be very short. Shorter paragraphs tend to be more readable, and longer paragraphs tend to be alienating to many readers. And the reader of the abstract will likely be the sort of reader who is especially unmotivated to read further. The more you can do to make the abstract appealing, within the space constraints you're given, the better.
Likewise, I like including numbering, for instance in this abstract:
How should state and federal constitutional rights to keep and bear arms be turned into workable constitutional doctrine? I argue that unitary tests such as “strict scrutiny,” “intermediate scrutiny,” “undue burden,” and the like don't make sense here, just as they don't fully describe the rules applied to most other constitutional rights.
Rather,