Academic Legal Writing - Eugene Volokh [41]
Would prosecutors enforcing your proposed law have to exercise their discretion in unexpected ways? Would your substantive proposal have nonobvious procedural applications? Would there be problems of proof that might require changes to certain evidentiary rules, or at least to trial tactics? Discussing such questions can make your article more useful and complete, and might generate new and interesting insights.
For instance, say you're arguing that speech revealing certain facts about someone's sex life should be seen as tortious, and that liability for such speech wouldn't violate the First Amendment. Your substantive constitutional point could have procedural implications for how such trials should be conducted. For instance, you might argue that though compensatory damages should be allowed in such cases, punitive damages should be restricted, by analogy to the rule in certain libel cases. Or you might explore whether such speech should lead only to damage awards, or whether courts should also be allowed to enjoin the speech, despite the ostensible rule against prior restraints.
You might also find that in some contexts your claim has unexpected substantive implications. For instance, does your broad point about revealing facts have particular consequences for publication of photographs, or of tape recordings? Even if the legal rule is the same, might it affect people's behavior differently in different situations?
Ask also what effect this rule will have on other tort rules. Will it make some of them unnecessary? Will it make others more important? For instance, in some recent cases the right of publicity has been used to bar the unauthorized distribution of nude photographs of celebrities. Would your proposed privacy right make such an extension of the right of publicity unnecessary or even undesirable?
7. A cautionary note
There are risks to exploring all of an article's implications:
1. If you explore them thoroughly, your article may become too long.
2. If you only sketch them lightly, the reader might find the discussion too cursory, too vague, or insufficiently supported; and this bad impression might undo some of the good impression that your core argument initially made.
3. If you don't structure the discussion well, some of the connections might become confusing tangents that distract your reader from the main point.
4. If you are too ambitious in looking for connections, you might find yourself drawing analogies that don't ring true.
The trick is to:
a. create a solid core argument;
b. incorporate into it those connections and implications that are necessary to a full understanding of your point;
c. discuss the other connections and implications in some detail—perhaps in a separate section—while making clear that your main point doesn't stand or fall with them; and
d. be cautious about the analogies you draw and the connections you make, and ruthlessly edit out those that on reflection don't seem persuasive enough.
Thus, first make sure that the readers understand your main point, and are impressed by it. Then, once they are already thinking well of you, they'll be more charitable towards any broader but tangential points that you might make.
But be willing to cut those tangents. Show readers—your faculty advisor, your trusted and thoughtful friends, your law review editor—a basically finished draft of your article. And if some of the readers tell you that some of the connections don't really work, be ready to edit them out.
Yes, it will be painful to jettison sections that you've worked hard to write, but you'll probably find that for every connection you cut, you'll be keeping two. And the connections that you keep will help make your article richer and more impressive than if you'd stuck only to the bare necessities.
VI. THE CONCLUSION, AND AFTER THE CONCLUSION
A. Write the Conclusion
The conclusion is where you remind people of the value that your article has