Academic Legal Writing - Eugene Volokh [38]
Instead, write “the law can't be justified under the captive audience doctrine, because....” Cite your adversaries and rebut their assertions, but don't let them be the main characters in your discussion.
E. Turn Problems to Your Advantage
1. Improve your argument
Squarely confront the logical and practical difficulties with your argument; don't try to sweep them under the rug. Be honest with your reader—it's the right thing to do, it's more effective, and it'll make you feel better about your work.
To begin with, confronting the difficulties can turn a banal, straightforward argument into one that's more nuanced and interesting. Say that the leading precedent in the field doesn't support your claim as squarely as you'd like. Don't just ignore this; explain how some other precedents or policy arguments fill the gap.
For instance, suppose your argument rests partly on the claim that public single-sex junior high schools are unconstitutional. You could just cite Mississippi University for Women v. Hogan and United States v. Virginia for your proposition, as some people do.
But these cases don't actually stand for quite so broad a principle—they involve college education, and they stress the particular characteristics of the programs involved in each case. If you rely only on these cases, many readers will be unpersuaded, and you'll also have lost your chance to show off your reasoning skills. Rather, explain why the broader policies embodied in the Court's equal protection jurisprudence fill the gap between the precedents and your proposed rule; or explain why, even if a gap remains, your case is factually close to the situations in the precedents.
Do the same when you see ambiguity in the facts, history, statutory or constitutional text, or policy arguments: Acknowledge the ambiguity and explain why your choice is better than the alternatives. You shine by showing how you deal with the tough questions, not by pretending that the tough questions are easy.
2. Refine your claim
The difficulties can also lead you to make your claim more moderate and nuanced. Say your argument proves your claim in most cases, but not in all: For instance, say that it persuasively shows that single-sex K–12 schools are usually unconstitutional, but that it doesn't really work for programs specially aimed at students who have been sexually abused or who are mentally disturbed.
Maybe you should change your claim from “single-sex public education is unconstitutional” to “single-sex public education is generally unconstitutional, but single-sex public education of certain kinds of hard-to-teach children is constitutional.” This may be a sounder claim, and it's also more likely to be novel and nonobvious.
3. Acknowledge uncertainty
The difficulties with your argument can also require you to acknowledge some uncertainty, and to prove your argument as best you can in the face of that uncertainty.
This can help make your work look more sensible and thoughtful. After all, little in our lives or in the law can be logically proven. We must often make the best guess we can, given gaps in the evidence. It's no great loss to admit this, assuming you have enough evidence to make your point plausible, even if not formally proven.
Say the cases are best read as holding only that public single-sex K–12 education is unconstitutional unless there's strong evidence that such programs are educationally valuable; and say people disagree about the evidence. Use the evidence on your side as best you can, acknowledge that there's disagreement, and make the best pragmatic, logical, and doctrinal argument you can for your point—for instance, you might argue that, in the face of disagreements about the facts, courts should err on the side of nondiscrimination and thus coeducation.
This is especially true for historical or empirical claims. It's hard to be sure about what people really believed or did many decades or centuries ago, or about what's happening in