Academic Legal Writing - Eugene Volokh [18]
Or you might recognize that there is some implicit substantive rule that you want the administrative judges to apply, for instance, “political speech by students must be protected unless there is concrete evidence that the speech has actually disrupted classes at this school.” If that's so, you should make clear that your proposal isn't just about procedure but also about substance.
Likewise, it's often tempting to argue that courts should admit a certain class of evidence, for instance evidence about aspects of a person's cultural background that might have led him to act in a certain way. Why not let it in? Don't we trust jurors? Isn't more evidence better than less?
Well, maybe—but much depends on how we expect jurors to consider this evidence. Say that a defendant killed someone because the other person did something that the defendant's culture finds mortally insulting: the victim said something to the defendant, the victim pointed the soles of his feet at the defendant,2 the victim made a homosexual advance to the defendant, or the victim, who was the defendant's wife, flirted with another man. And say that the defendant wants to introduce evidence of these cultural beliefs in his murder prosecution, seeking to have the jury convict him only of voluntary manslaughter, not murder.
Today, the presence of provocation can generally reduce the offense from murder to voluntary manslaughter only if the provocation is seen as reasonable by society at large. If this substantive rule is retained, then admitting the cultural evidence seems unwise, because jurors generally can't lawfully give effect to the evidence, and the evidence is thus more likely to be prejudicial or distracting rather than relevant.
Of course, if the substantive rule were changed to let murder be reduced to manslaughter whenever the defendant was provoked in a way that's seen as reasonable by the defendant's culture, then courts would have to admit evidence of what the defendant's culture actually believes. But this substantive proposal would be controversial, and should be defended explicitly. You can make your procedural proposal complete only by exposing the substantive assumptions behind it, or the substantive changes that would be required to make it work.
The same goes for proposals that:
a. “courts should take a hard look at X” (a hard look applying what test?),
b. “courts must carefully sift the facts” (what specific item will they be searching for in this sifting, and what role will this item play in what test?),
c. “executive officials must state their reasons for action on the record” (and then their reasons would be reviewed for compliance with what rule?), or
d. “there should be a hearing in which the affected parties may introduce evidence” (what legal rule would this evidence be relevant to?).
Focusing on procedure may often be good—but in such cases there's often an unexpressed substantive proposal lurking. Express it.
G. Soundness: Historical and Empirical Claims
1. Get advice from historians or empiricists
Say you are writing an article about the history of libel law, or an empirical analysis of prostitution laws. You might well choose a torts scholar or a criminal law scholar as your main advisor, either because you want substantive help on that area of that law, or because you know the professor well.
But you should also get some informal help from a professor who is a historian or an empirical researcher. Such a specialist