Academic Legal Writing - Eugene Volokh [15]
Think about switching to a more modest claim. You might argue, for instance, that courts should apply strict scrutiny to restrictions on entering certain professions or businesses. This would be a less radical change, and you can also support it by using particular arguments that wouldn't work as well for the broader claim.
Maybe courts will still be unlikely to go that far. Can you argue for a lower (but still significant) level of scrutiny? Can you find precedents, perhaps under state constitutions, that support your theory, thus showing your critics that your theory is more workable than they might at first think?
Or perhaps you could limit your proposal to strict scrutiny for laws that interfere with the obligation of contracts, rather than for all economic restrictions. Here you have more support from the constitutional text, a narrower (and thus less radical-seeming) claim, and perhaps even some more support from state cases: It turns out that state courts have interpreted the contracts clauses of many state constitutions more strictly than the federal clause.
If you really want to make the radical claim, go ahead—you might start a valuable academic debate, and perhaps might even eventually prevail. But, on balance, claims that call for modest changes to current doctrine tend to be more useful than radical claims, especially in articles by students or by junior practitioners. By making a more moderate claim, you can remain true to your basic moral judgment while producing something that's much more likely to influence people. Many legal campaigns are most effectively fought through small, incremental steps.
5. Avoid unnecessarily alienating your audience
You should try to make your argument as appealing as possible to as many readers as possible. You can't please everyone, but you should avoid using rhetoric, examples, or jargon that unnecessarily alienates readers who might otherwise be persuadable.
For instance, say that you're writing an article on free speech, and in passing give anti-abortion speech as an example. If you call this “anti-choice” speech, your readers will likely assume that you bitterly oppose the anti-abortion position. Some pro-life readers might therefore become less receptive to your other, more important, arguments; and even some pro-choice readers may bristle at the term “anti-choice” because they see it as an attempt to make a political point through labeling rather than through argument. If you're pro-choice, imagine your reaction to an article that in passing calls your position “anti-life”—would this make you more or less open to the article's other messages?
Avoid this by using language that's as neutral as possible. Right now, for instance, “pro-choice” and “pro-life” seem to cause the fewest visceral reactions; most terms have some political message embedded in them, but these seem to have the least, perhaps because repeated use has largely drained them of their emotional content. But in any case, find something that is acceptable both to you and to most of your readers.
The same goes for terms like “gun lobby,” “gun-grabber,” “abortionist,” “fanatic,” and the like. You may feel these terms are accurate, but that's not enough. Many readers will condemn these terms as attempts to resolve the issue through emotion rather than logic, and will therefore become less open to your substantive arguments. Likewise, if you're analogizing some views or actions to those of Nazis, Stalinists, the Taliban, and the like, you're asking for trouble unless the analogy is extremely close.
Try also to avoid using jargon that will confuse those who are unfamiliar with it, or that will unnecessarily label your work (fairly or unfairly) as belonging to some controversial school of analysis. If you have to use the jargon because you need it to clearly explain your theory, that's fine. But if you're writing an article on a topic that doesn't really require you to use a specialized method such as law and economics, literary criticism,