Academic Legal Writing - Eugene Volokh [43]
4. If parents in intact families have First Amendment rights to speak to their children, without legal prohibitions on speech that is supposedly against the child's “best interests,” then parents in split families generally deserve the same rights, except when the speech undermines the child's relationship with the other parent.
5. Parents in intact families should indeed be free to speak to their children—but not primarily because of the parents' self-expression rights, or their children's interests in hearing the parents' views. Rather, the main reason is that today's child listeners will grow up into the next generation's adult speakers. That next generation is entitled to hear a broad range of ideas, without government interference; restrictions on ideological parent-child speech are a powerful way for today's majorities or elites to entrench their ideas, and to block their ideological rivals from being heard in the future. The First Amendment is a necessary check on this entrenchment.
6. It may seem appealing to protect speech generally, but to withdraw that protection when the speech imminently threatens psychological harm to the child. But such an approach will likely prove unhelpful: It's hard for courts to reliably predict whether speech will cause harm, to reliably determine whether certain existing harm was indeed caused by speech (as opposed to by the breakup itself, or by the other parent's condemnation of the speech), and to weigh the present upset caused by certain teachings against the teachings' potential long-term benefits.
These points are related, and they help prove the article's overall claim. But some of them are also independently valuable.
The descriptive item 1 may be interesting even to people who aren't persuaded by the article's prescription. Item 5, which speaks more broadly about parental speech rights—even outside child custody decisions—may be useful to people who are writing articles on this broader theme. Item 6, which criticizes the “protect speech unless it's harmful” option, may be worth highlighting to people who quickly accept the notion that parental speech should be protected, but who assume that of course the speech may be restricted when it is harmful.
Your article likely has many subsidiary findings like this. Make sure that you properly highlight them.
C. Decide What to Set Aside
“A poem is never finished, only abandoned.”* For many articles, there's no clear theoretical stopping point. You can always discuss other interesting legal issues that relate to your core claim—for instance, if you're writing on a substantive free speech issue (e.g., the tension between the First Amendment and hostile work environment harassment law), you might see some interesting procedural questions that this raises: Should injunctions barring harassing speech be treated as prior restraints? Should there be independent appellate review in harassment cases that are based on speech?
Sometimes your running out of time or patience makes the decision for you. But if it doesn't, how do you know when to set these interesting points aside?
There's no clear answer to this, but my suggestion is to (1) thoroughly discuss your main claim, and then (2) have a short section that identifies and broadly outlines the other points, but doesn't fully resolve them. Generally, if you discuss your main claim in enough depth, you'll have a nice, substantial piece. Adding a thorough investigation of the tangents is unnecessary.
But flagging these tangents as interesting avenues for future research, and briefly giving some tentative thoughts on them, can help enrich your article and make it more relevant and useful. The very fact that your main topic raises these related questions can help show that the topic is important.
Make especially sure that you flag the implications of your claim, or of your framework for resolving the