Academic Legal Writing - Eugene Volokh [160]
What are the ingredients of a good claim for a write-on assignment?
1. Most importantly, it should be as legally defensible as possible. Your argument's soundness is much more important than its creativity.
2. Most well-designed write-on topics will have several plausible answers. When you choose among them, try to choose a politically inoffensive one. You'll probably have a good sense of your classmates' political views—choose something that is unlikely to strongly conflict with those views. If most of your classmates are pro-choice, for instance, then chances are that most of the law review editors are, too; don't risk alienating them by taking a strong pro-life position.
Even if the editors try hard to avoid being influenced by a write-on note's political slant, some such influence is almost inevitable. The editors are looking for well-reasoned pieces, and they think their own views are better reasoned than the other side's (or else they wouldn't have adopted those views). So, all else being equal, a piece that's close to the editors' views is more likely to seem well-reasoned to them.
You needn't, and can't, match the editors' views precisely. But try to avoid claims that are very far from your best guess of the average law review editor's perspective.
When you're writing a real article for publication, you should express your own views, even if most law review editors may disagree with them. Such candor is your duty as a scholar—and it's also likely to make you happier, since spending months writing an article that you don't believe in is likely to be an awful experience.
But your write-on, once read and graded, will never be read by anyone else. It can't persuade anyone to accept your ideas. Its only purpose is to get you a spot on the law review. Focus on that goal.
3. If you have several plausible and politically inoffensive proposals, try to choose one of the more creative ones. If you think you have a good answer besides the obvious “yes” and “no”—for instance, “the DNA submission requirement would be constitutional, but only if the DNA data is usable only for identification and not for analyzing people's genetic traits”—then use it. Likewise if you have a good justification that you think is different from the standard ones.
Don't try too hard here: In the write-on, it's more important for your position to be defensible than creative. (In your real student Note, which you'll write for publication, both originality and soundness are very important, but not in the write-on.) Also remember the page limit—if you don't have much space to develop and defend your claim, don't choose one that's too complex.
But if you think your creative solution is just as sound as the obvious ones, use it. And keep in mind that sometimes the more nuanced solution is actually more sound than the yes-or-no one.
6. If you can't find the perfect claim, go with what you have
In all these steps—choosing a claim, writing, editing, and so on—you may find yourself being uncertain. Is this exactly the right claim? Is this subsection really persuasive? Is this quite the right way to read this case? Often you may have good reason for uncertainty: You may rightly sense that there's something wrong, though you might not know how to fix it.
When that happens, the best bet is usually to move on. Your time is limited; you can't afford to spend it worrying about one item, even an important one. Just do the best you can, and go on to the next step. Even if you're not sure whether you have the right claim, go with it. If you're not sure that you wrote a section right, go on to the next section.
After you do the next step or two, come back to the part that you're not sure about. Sometimes, the work