Academic Legal Writing - Eugene Volokh [33]
6. Start with an argument or conventional wisdom you want to rebut
If your article is an attempt to rebut some argument, or some conventional wisdom, you may want to start by quickly identifying what you're arguing against. But do it quickly; don't spend pages talking about others' arguments—quickly reveal to the reader what you are going to say. A short sample:
Which Justices generally take a broader view of the freedom of speech and which take a narrower view? Conventional wisdom still tells us that this should break down mostly along “liberal”/“conservative” lines, as it seemingly did during the 1970s and much of the 1980s. But it turns out that this is no longer true. [The article goes on to provide the evidence.]
Or another one—a very short articulation of the other side's argument in a short Introduction:
The Supreme Court has often held that content-based restrictions on fully protected speech are valid if they are “narrowly tailored to serve a compelling state interest.” I believe this is wrong.
It is wrong descriptively: There are restrictions the Court would strike down—of which I'll give examples—even though they are narrowly tailored to serve a compelling state interest. It is wrong normatively: In striking these restrictions down, the Court would, in my view, be correct. And the official test is not just wrong but pernicious. It risks leading courts and legislators to the wrong conclusions, it causes courts to apply the test disingenuously, and it distracts us from looking for a better approach.
After briefly restating strict scrutiny doctrine (Part I), I'll give three examples of speech restrictions that in my view would pass muster if the strict scrutiny framework were taken seriously, but that nonetheless would and should be struck down (Part II). I'll then point to some of the costs of the Court's reliance on an unsound doctrinal structure (Part III), and finally (Parts IV and V) suggest the rough foundations—and, I concede, only the rough foundations—of two alternative approaches.
The first alternative is for the Court to acknowledge that there is a third prong to strict scrutiny, which I call “permissible tailoring.” Rather than just asking about the strength of the government's interest, or about whether the means are narrowly drawn to accomplish the interest, it asks whether the means are nonetheless impermissible: Whether, no matter how narrow they are, and no matter how compelling an interest they serve, the means are still contrary to some basic prohibitions that the Free Speech Clause imposes. This, I'll argue, is an inquiry quite distinct from what the Court requires under the “narrow tailoring” prong.
The second alternative, which I prefer, is for the Court to shift away from means-ends scrutiny, and toward an approach that operates through categorical rules—such as a per se ban on content-based speech restrictions imposed by the government as sovereign—coupled with categorical exceptions, such as the exceptions for fighting words, obscenity and copyright. I think this framework would better direct the Court's analysis, and would avoid the erroneous results that strict scrutiny seems to command.
This Introduction has its flaws. First, the second alternative proposal isn't defined precisely and concretely enough. (This reflects a flaw in the article more generally.) Second, it might have been better to mention a few concrete examples in the second paragraph, rather than just promising to get to them in Part I.
Still, the Introduction has the merit of being short and focused on exposing the article's value added. And while it begins with articulating the argument that the article is trying to rebut, it articulates that opposing argument as concisely as possible, and doesn't let the argument dominate the discussion.
G. Organize the Introduction as a Roadmap
Law reviews often ask for so-called