Academic Legal Writing - Eugene Volokh [45]
4. Then, when you've filled in all the subsections that you can—or if you're blocked on what to write in some subsections—go back over the one-sentence summaries and expand them to a paragraph or two, for instance:
A. Fighting Words
Workplace harassment law can't be justified using the “fighting words” exception because it isn't limited to speech that isn't face-to-face, and isn't likely to immediately start a fight. The premise of the exception isn't that all offensive speech or all insults are punishable because they offend—it's that they (i) lack value, (ii) can be restricted without interfering with valuable speech, since one can still convey the same views in other ways, and (iii) are likely to cause an immediate fight. Nothing in harassment law limits itself to this narrow category; it can just as well cover [give examples of non-one-to-one-speech].
Discuss Cohen v. California as example of this limitation.
5. Repeat this expansion as much as you can. Expand each paragraph into a couple of paragraphs, each couple of paragraphs into a full subsection, and so on.
6. Don't worry about spelling, grammar, footnotes, and the like. Feel free to use bulleted and numbered lists. Use whatever shortcuts will help you express your substantive points in as much detail as possible.
7. Do worry a little about statements that seem too abstract or conclusory—see if you can, in the next pass, make them more concrete or provide more support for them. But worry only a little: The difference between a zeroth draft and a first draft is that you should expect some of the zeroth draft to lack concreteness or detailed argument.
C. As You Write, Use Subsection Headings
Readers find subsection headings helpful: Even if your article is well organized, readers might at times lose sight of the structure, and subsection headings can bring the reader back on track. Try to choose headings that refer to your specific argument—such as “Identifying Speech That Lacks Value When Communicated to Minors”—rather than generic ones such as “Background” or “Applying the Test.”9 Subsection breaks also provide extra white space on the page, which seems to make text more appealing to many readers.
But the main value of these subsection breaks is to help you organize your own thinking. If you break up a section into five subsections, giving each a topical heading, you'll be more likely to see organizational problems, such as shifts from one issue to another and then back to the first, or digressions that break up the article's logical flow.
Naturally, there will be some overlap among the subsections within each section. But to the extent possible, you should completely cover each detail within a few adjacent pages, rather than returning to it repeatedly throughout various parts of the article. Readers find it hard to grasp an argument that's made in five chunks in five parts of the paper. They'll need to do this for your broad argument, which will indeed pervade the whole article. Don't ask them to do the same for subordinate arguments.
Good places for subsection breaks are usually easy to spot. For instance, when you're dealing with a multi-prong test, it generally makes sense to have a subsection for each prong, even for a prong that takes only several paragraphs. Many multi-pronged tests actually have several subprongs contained within each prong; consider having a subsection for each of these subprongs. Be willing to have subsections that go four or five levels deep.
If you're discussing several factual scenarios, policy arguments, or statutory sections, consider having a separate subsection for each one. Err on the side of having more subsection breaks rather than fewer.
After you're finished, you might decide to delete some of the lowerlevel subsection headings, especially if the subsections are very short, and the structure of the broader section is clear. Still, the headings will have served the goal of helping you write the article, even if they won't be needed to help the reader read it.
D.