Academic Legal Writing - Eugene Volokh [16]
Likewise, try to include some arguments or examples that broaden your article's political appeal. If you are making a seemingly conservative proposal, but you can persuasively argue that the proposal will help poor people, say so. If you are making a seemingly liberal proposal, but you can persuasively argue that the proposal fits with tradition or with the original meaning of the Constitution, say that.
You should of course be willing to make unpopular arguments, if you need them to support your claim; that's part of the scholar's job. And if you really want to engage in a particular side battle, you might choose to bring it up even if you don't strictly have to. But in general, don't weaken your core claim by picking unnecessary fights.
F. Soundness: Prescriptive Claims
Part II will tell you more about test suites, an important tool for making your claim sounder—so important that it merits a separate section. Here, though, are some other suggestions.
1. Avoid excessive mushiness
Be willing to take a middle path, but beware of proposals that are so middle-of-the-road that they are indeterminate. For instance, if you're arguing that single-sex educational programs should be neither categorically legal nor categorically illegal, it might be a mistake to claim that such programs should be legal if they're “reasonable and fair, and promote the cause of equality.” Such a test means only what the judge who applies it wants it to mean.
Few legal tests can produce mathematical certainty, but a test should be rigorous enough to give at least some guidance to decisionmakers. Three tips for making tests clearer:
a. Whenever you use terms such as “reasonable” or “fair,” ask yourself what you think defines “reasonableness” or “fairness” in this particular context. Then try to substitute those specific definitions in place of the more general words.
b. When you want to counsel “balancing,” or urge courts to consider the “totality of the circumstances,” ask yourself exactly what you mean. What should people look for when they're considering all the circumstances? How should they balance the various factors you identify? Making your recommendation more specific will probably make it more credible.
c. If possible, tie your test to an existing body of doctrine by using terms of art that have already been elaborated by prior cases (though this approach has its limits, as the next subsection discusses).
Thus, “single-sex educational programs should be legal if they have been shown in controlled studies to be more effective than co-ed programs” is probably a more defensible claim than “single-sex educational programs should be legal if they're reasonable.” Instead of an abstract appeal to “reasonableness,” the revised proposal refers to one specific definition of reasonableness—educational effectiveness—that seems to be particularly apt for decisions about education. It's still not a model of predictability, but it's better than just a “reasonableness” standard.*
Part II will show how test suites can help you find and fix this problem. If you apply a proposal to your test cases, and find that it often doesn't give you any definite answer, you'll know the proposal is too vague. Once you discover this, you can ask yourself “what do I think the results in these cases should be, and why?” Answer this question, incorporate the answer into your original proposal, and you'll have a more concrete claim.
2. Avoid reliance on legal abstractions
“Reasonableness” at least sounds as vague as it is; other terms, such as “intermediate scrutiny,” “strict scrutiny,” “narrowly tailored,” and “compelling state interest,” seem clear but in reality have little meaning by themselves. To the extent that, say, strict scrutiny of content-based speech