Academic Legal Writing - Eugene Volokh [36]
Also, don't talk in detail about how the rules have evolved over the centuries, again except to the extent that it's necessary to understanding the rules today. Don't discuss the leading cases related to the rules in detail, unless they are necessary to grasping the issue. Where possible, synthesize the precedents into a crisply stated rule (with the precedents cited in the footnotes, as needed) rather than discussing each case.
B. Synthesize the Precedents; Don't Summarize Each One
A bit more on the synthesizing I just mentioned: You should generally synthesize the precedents, not describe each one or explain how the law came to be the way it is. If the history is necessary to give a full picture of what the law means, you should of course mention it. But to the extent that the history doesn't really matter, cut it out. Your main mission is to prove your claim. Unnecessary tangents might seem interesting and colorful, but in practice they usually end up being distractions and excuses for the reader to stop reading.
Likewise, if there's a leading case that you need to compare and contrast in detail with the scenario about which you're writing, you'll need to discuss the case in detail in the proof section. Don't repeat all this detail in the background explanation section. And certainly don't go into the facts of the case if the facts are not really needed to understand the law.
Instead, briefly state the relevant rule, in whatever detail is needed, and cite your authorities in the footnotes. Imagine, for instance, that you're writing an article about how libel law should apply to false accusations of homosexuality (a surprisingly complex question), and that you want to set forth the basic First Amendment rules about what mental states must be proven for liability. You probably shouldn't write something like:
In 1964, the Supreme Court handed down a landmark libel decision in New York Times Co. v. Sullivan. Police commissioner Sullivan sued the New York Times for publishing allegedly false statements about him. Six Justices held that in a libel case brought by a public official, where the speech was on a matter of public concern, the plaintiff could not recover unless he showed that the defendant knew the statement was false, or was reckless about the statement's potential falsehood. The other three Justices would have categorically forbidden public officials from recovering libel damages when the statement was on a matter of public concern.
Three years later, in Curtis Publishing Co. v. Butts, the Supreme Court extended this rule to public figures who were not public officials. Butts was a state university football coach who was accused of leaking the team's playbook to an opposing team, but he was technically employed by a private organization, not by the state, and was thus not a public official. The Court concluded that his not being employed by the state should not change the constitutional analysis.
But in 1974, the Supreme court substantially cut back on protection for defendants. In Gertz v. Robert Welch Co., lawyer Elmer Gertz sued the publisher of the anti-Communist John Birch Society's magazine for libel, based on an article that accused him of having a criminal record and of being a Communist. The Supreme Court held that when the statement was about a private figure, the plaintiff could recover compensatory damages if he showed that the defendant was negligent about whether the statement was false. Presumed and punitive damages could still be recovered only on a showing of knowing or reckless falsehood.
Finally, in the 1985 Dun & Bradstreet v. Greenmoss Builders case, the Court cut back protection still further. Greenmoss Builders sued credit rating company Dun & Bradstreet for falsely stating that Greenmoss had filed for bankruptcy. The Court held that where the statements were on matters of purely private concern, plaintiffs could recover compensatory, punitive, and presumed damages based merely on a showing of the defendant's negligence.