Academic Legal Writing - Eugene Volokh [39]
4. Acknowledge costs
Finally, the difficulties can make you acknowledge that your proposal is not cost-free—that it to some extent sacrifices important government interests, or causes some possibly harmful side effects, or may at times be hard to administer. Skeptical readers will see these problems on their own, even if you don't admit that they exist. If you ignore the problems, the readers may assume the worst about the problems' magnitude.
If, however, you acknowledge the costs of your proposal but explain why the benefits exceed the costs, you can persuade many readers. No one expects any new proposal to be perfect. Explaining the proposal's downside can actually make it more credible—and can make you look more forthright and realistic.
F. Connect to Broader, Parallel, and Subsidiary Issues
1. Make your article richer: Go beyond the basic claim
So far, we've focused on the core claim: The nugget of novelty, nonobviousness, and utility that will be your contribution to the state of legal knowledge. This is the heart of your article, and you should focus primarily on explaining and proving it.
Most claims, though, can provide insights that go beyond their narrowest boundaries; the claims have unexpected implications that flow naturally from them, even though these implications don't strictly need to be discussed. Exploring these matters can add nuance to your core claim that will make it more novel and nonobvious.
More broadly, it can make your article richer and more sophisticated—a thorough exploration of many facets of the problem, rather than just one narrow claim. Such an article will be more useful to people interested in the problem; and, if done right, these connections will make people think better of your article and therefore of you.
2. Connections: Importing from broader debates
Begin by asking yourself whether some of the issues you raise are special cases of broader matters on which there are already academic debates. For instance, if you are writing about a particular individual right, are there any theories of individual rights that you can draw on for your analysis? If you're interpreting one provision of a statute, is there a broader discussion going on in the law reviews about the statute's purpose or overall impact?
Say your work discusses whether a particular kind of statement should be admitted as evidence under some exception to the hearsay rule. There are many debates in the literature about hearsay generally—about whether hearsay should even be presumptively excluded in the first place, about whether there should be a single discretionary standard (“allow hearsay evidence if there are sufficient indicia of trustworthiness”) or a rule that generally excludes hearsay but has many detailed exceptions, and so on. Do some points raised in these debates help you support your arguments? Do they provide counterarguments to which you ought to respond?
These connections to broader matters aren't always helpful. Sometimes, the broader, more theoretical arguments are notorious for not giving much of a concrete answer in any particular case. In other situations, the broader discussion may be too many levels of abstraction above your particular question: If you're talking about whether certain restrictions imposed on felons violate the Ex Post Facto Clause, and if you already have lots of doctrine and policy argument to draw on for your analysis, a discussion of the debates about whether courts should rely on natural law or original meaning may not be terribly useful.
But sometimes the theories might indeed provide valuable insights. Even if their application won't form the core of your argument, they may shed light on a particular aspect of the argument, or supply important counterarguments