Academic Legal Writing - Eugene Volokh [37]
In an article that's about modern libel law, the details of the past Supreme Court cases probably don't much matter; neither does the history of the law's evolution. Even if you do make arguments based on this history, or analogize to the facts of the past cases, you'll need to cite that history or those facts later in the article, where you make your arguments. You won't be able to rely on readers' remembering these points from the Background section.
Instead, synthesize the cases into a rule:
The First Amendment rule in libel cases turns on two main factors: (1) whether the plaintiff is a public figure (a category that includes public officials but is not limited to them), and (2) whether the statement is on a matter of public concern.
Plaintiffs may recover in public figure / public concern cases only if the defendant knew the statement was false, or was reckless about the possibility of falsehood. In private figure / public concern cases, this same knowledge-or-recklessness standard applies for punitive and presumed damages, but the plaintiff may recover compensatory damages even if the defendant was merely negligent about the statement's falsehood. And in private concern cases, the plaintiff may recover all sorts of damages even when the defendant was merely negligent; and the Court has left open the possibility that defendants in such cases may even be held strictly liable.
Then just cite the relevant cases, with the proper parentheticals, in a footnote.
There are other ways to summarize the rule; you might, for instance, use a table or a numbered or bulleted list, devices that are often clearer than simple prose. But in any event, give the reader the background that he needs for understanding your article—don't waste his time with facts that are irrelevant to your claim.
V. WRITING THE PROOF OF THE CLAIM
This part—basically everything after the Introduction and the “background” section, and before the Conclusion—is where you can shine, by showing that your claim is correct, and that it's the best way of solving the problem you've identified. Some tips:
A. Show Your Prescription Is Both Doctrinally Sound and Good Policy
Don't just show that your prescriptive proposal (if you have one) fits the case law; also persuade your reader that it's practically and normatively sound. Authors often come up with a neat logical argument that supposedly proves a law's unconstitutionality or explains how a law must be interpreted, but that leaves many readers unpersuaded. To the extent possible, show that your proposal makes practical sense as well as logical sense—that it is good policy as well as consistent with the doctrine.
B. Be Concrete
Illustrate your theoretical arguments with concrete examples, drawn from real cases or realistic hypotheticals. This will make your point clearer to your reader; it will show that you have a point and aren't just playing a theoretical shell game; and it will often make your point clearer to you, or lead you to rethink it.
C. Use the Test Suite
The test suite you used to show yourself that the prescriptive part of your claim is sound (see Part II) can prove the same to your readers. The test suite involves concrete test cases. It illustrates different aspects of your proposal. And if done right, it involves cases that come from a variety of political perspectives, and thus shows that you've thought through a broad range of implications that your proposal may have, not just those that seem to fit your politics.
At least in the first draft, try to mention every test case from your test suite.* Then, if necessary, you can remove the ones that prove redundant.
D. Confront the Other Side's Arguments, but Focus on Your Own
Deal with all the counter-arguments, but take the offensive. Don't write “Some people say that this law fits within the captive audience doctrine, and this might at first seem plausible. Let me quote what