Academic Legal Writing - Eugene Volokh [25]
At least some of the cases should be challenging for the proposal. You should identify cases where the proposal might lead to possibly unappealing results, and include them in the test suite. Skeptical readers, including your advisor, will think of these cases eventually. Identifying the hard cases early—and, if necessary, revising the proposal in light of them—is better than having to confront them later, when changing the paper will require much more work.
5. Have a mix of cases
The test cases should differ from each other in relevant ways, since their role is to provide as broad a test for the claim as possible. If you are testing a claim about paternalistic laws, for instance, you shouldn't just focus on drug laws, or just on paternalistic laws aimed at protecting children. You should think of many different sorts of paternalistic laws, and choose one or two of each variety.
6. Include cases that yield different results
The cases should yield different results. For instance, if your proposed rule judges the constitutionality of a certain type of law, you should find some laws that you think should be found unconstitutional, some that you think should be found constitutional, and some whose constitutionality is a close question.
7. Include cases that appeal to different political perspectives
The cases should involve incidents or laws that appeal to as many different political perspectives as possible. Say that you are a liberal who wants to argue that the Free Speech Clause prohibits the government from funding viewpoint-based advocacy programs. You might have developed this view because you think the government shouldn't be allowed to fund anti-abortion advocacy, and your proposal will indeed reach the result you think is right in that case.
But what about advocacy programs that liberals might favor, such as pro-recycling advocacy, or advertising campaigns promoting tolerance of homosexuality? It would help if the test suite included such cases, plus generally popular programs such as anti-drug advertising, or programs that even small-government libertarians might like, such as advocacy of respect for property rights (for instance, anti-graffiti advocacy). This wide variety of test cases will help show you whether the proposal is indeed sound across the board, or whether even you yourself would, on reflection, oppose it.
8. Include cases that implicate different interests and policy arguments
In particular, think about the policy arguments and the private or government interests on both sides, and find cases in which different arguments or interests are more or less implicated. Say, for instance, you are writing about how state constitutional rights to bear arms should be interpreted. The obvious test cases would focus on situations in which citizens want to defend themselves, and the government wants to prevent criminal misuse of guns.
But what about laws aimed not at preventing crime but at preventing suicide or accidents? What about citizens who are concerned not just about access to guns, but about privacy—for instance, citizens who want to carry guns concealed rather than openly because they don't want to reveal their actions to everyone, or citizens who don't want their gun ownership or their concealed carry license disclosed in public records? Add test cases that involve laws which implicate these special concerns.
III. WRITING THE INTRODUCTION
A. The Role of the Introduction
A readable, interesting introduction is crucial to your article's success. Introductions have three important functions:
a. to persuade people to read further;
b. to summarize your basic claim for those who don't read further, so that they'll remember it and refer back to your piece when they run into a problem to which the claim may be relevant; and
c. to provide a frame through which those who do read further will interpret what follows.
To accomplish these goals, an introduction must do four things:
1. show that there's a problem, and do so concretely;
2. state the claim;