Academic Legal Writing - Eugene Volokh [28]
The opening sentence is a platitude. The second sentence says something general and well-known. The third sentence summarizes a legal rule that most of your readers will know; and even readers who don't know it won't be reading your article to learn it.
The fourth sentence gets to the heart of the question, though indirectly and using a waffle word (“arguably,” which I discuss on p. 116). The fifth sentence is when the Introduction first identifies the topic, and even then it doesn't signal that this is the topic. And it could be worse: I've seen articles in which the topic isn't identified until the fifth page.
You might hope that the reader will be willing to read on to the fifth sentence. But some readers will start skimming by then. Some won't recognize the fifth sentence as identifying your claim, even if they've read that far. And some will just be put off by early evidence of the article's tendency to meander. So avoid the generalities, and start early with something clear, concrete, and specific to your claim.
2. Start with concrete examples
Point to concrete scenarios that lead people to wonder, “How should these be resolved?” For instance,
Some speech provides information that makes it easier for people to commit crimes or torts. Consider:
(a) A textbook describes how people can make bombs. [Each example is followed by a footnote to cases or incidents that deal with the issue.]
(b) A thriller or mystery novel does the same, for the sake of realism.
(c) A Web site or computer science article explains how encrypted copyrighted material can be illegally decrypted.
(d) A newspaper publishes the name of a witness to a crime, thus making it easier for the criminal to intimidate or kill the witness....
These are not incitement cases: The speech isn't persuading or inspiring some readers to commit bad acts. Rather, the speech is giving people information that helps them commit bad acts—acts that they likely already want to commit. When should such speech be constitutionally unprotected?
This again quickly tells people what the article is about, and gives plausible and concrete examples that (a) help make the subject clearer and less abstract and (b) show that your article will be useful. It also helps that the examples at first seem different, but juxtaposing them under the rubric “information that makes it easier for people to commit crimes or torts” shows the similarity between them. Showing this similarity may itself be a novel, nonobvious, and useful contribution provided by the article.
3. Start with an engaging story
If you want to start with a story, make sure that it's a vivid story.
Percy Bysshe Shelley was a poet and a cad. He married his wife, Harriet Westbrooke, when she was 16, but left her for Mary Wollstonecraft Godwin three years later. When Shelley left Harriet, their daughter was a year old, and Harriet was pregnant with their son.
Two years later, in 1816, Harriet drowned herself. When Shelley decided to raise the children himself, Harriet's parents refused to turn them over, and Shelley went to court. Though fathers had nearly absolute rights under then-existing English law, Shelley became one of the first fathers in English history to lose custody of his children.
Percy Shelley was also an avowed atheist—and the Court of Chancery mostly relied on his views, not on his infidelity or unreliability, in denying him custody. Shelley shouldn't be put in charge of the children's education, the Lord Chancellor reasoned: Shelley endorsed atheism and sexual freedom, and would teach his children the same values. Twenty years later, Justice Joseph Story likewise wrote that a father could lose his rights for “atheistical[] or irreligious principles.”
Shelley's case may look like something out of another time and place. That time and place, it turns out, is 2005