Academic Legal Writing - Eugene Volokh [163]
For the first draft, focus on getting your thoughts down on paper. Then trim it down during the editing.
d. Deal with the counterarguments
Deal with the most important counterarguments. The write-on problem is usually a close case, with good arguments to be made on both sides. There will almost always be something in the sources that supports the other side as well as yours. Understand the arguments against your position, treat them with respect, and explain why they don't defeat your position.
Don't overstate the strength of your position. For instance, if the statute you're interpreting is ambiguous, don't try to deny the ambiguity; admit that the law is ambiguous and explain why it's better read the way you want to read it. The write-on is a test of scholarly writing, and intellectual honesty is a hallmark of good scholarly writing. You should have an opinion, but you should defend it fairly, without overstatement.
e. Use the facts—but don't focus too much on them
Some competitions will give you a fact-rich scenario: For instance, you may be asked to write about whether a particular statute is constitutional; the relevant constitutional test (for instance, strict scrutiny) may turn on a factual inquiry (for instance, whether some alternative proposal would be less restrictive but as effective at serving a government interest); and you may be given some facts, either in studies that are excerpted or summarized for you, or in findings from the lower court.
Try to use as many of those facts as possible. See which parts of the legal test the facts might be relevant to, and explain that relevance. Much of the lawyer's art, and the legal scholar's art, comes in applying the law to the facts. And the graders may well be looking to see how skilled you are in that art.
At the same time, pay close attention to the call of the problem. If your assignment calls on you to deal with a general issue (for instance, if it asks you to propose how the Compulsory Process Clause should be interpreted in certain situations), don't spend too much space on the facts of the case that you're presented. Focus on the issue, and use the particular case in which it arises as an illustration.
f. Use headings for each subsection
Use headings for each subsection. They'll help organize your thinking, help you make sure that each subsection stays focused on its key point, and help you see what the key points of each section are. And the law review editors will probably appreciate the headings, because the headings will help them understand the structure of your paper.
After you're done, automatically generate a table of contents from the headings. That will give you a quick outline of the paper, and give you a sense of whether some important parts are missing, whether some sections are redundant, and whether the sections don't fit well together. The table of contents will also let you make sure that the section headings are consistently capitalized and grammatically parallel.
After you check the table of contents, though, delete it, unless the law review wants you to include one. Its purpose was to help you visualize the article's structure; the editors will probably want to read the paper and visualize the structure for themselves.
g. Follow the advice in the Writing chapter and in your writing style manual
As you write, try to follow the advice in Parts XI through XVI, and in whatever writing style manual you've read (such as Strunk & White). Much of your grade will depend on the quality of your writing rather than of your legal reasoning—and even your legal reasoning will be more impressive if you don't obscure it with bad writing.
h. Keep it clear and simple
The single most important writing principle is: Keep it clear and simple. That means:
1. Use short, simple words.
2. Use short sentences.
3. Use short paragraphs.
4. Use direct, unaffected prose; avoid the flowery and the pompous. (A tip I once got: “If you're not sure whether something you've written sounds pompous, it probably does.”)
5. Use