Academic Legal Writing - Eugene Volokh [59]
D. Treat Each Editing Comment as a Global Suggestion
Treat each editing comment as a global suggestion, not just a local one. If the professor circles one “it's” and tells you that it should be an “its,” check all the “it's” in your paper—you've probably made this mistake more than once.
Do the same for broader comments. Professors reasonably assume that once you see a few sentences marked “redundant” or a few paragraphs marked “too long,” you'll understand that your prose needs trimming. They might not take the time to mark all the other instances of these problems.
So as you read the marked-up draft, keep a checklist of the kinds of problems that the professor found. Then, focus your next edit on identifying and correcting more examples of each problem.
XI. WRITING: LOGICAL PROBLEMS TO WATCH FOR
A. Categorical Assertions
Avoid “never” and “always,” as in “this law would be completely unenforceable” or “could never be enforced.” Completely? Never? Really? Modest claims may sometimes seem less rhetorically effective, but they're more likely to be right.
B. Insistence on Perfection
People often criticize laws by arguing that they're imperfect: “The law is targeted at preventing children from accidentally killing themselves or other children with a gun. However, the law itself would not adequately protect against all of the possible accidental handgun deaths.”*
This is a weak criticism. No law can prevent all instances of a certain kind of harm. The questions are usually whether the law does more harm than good, and whether other alternatives can do still better. You can't avoid these hard questions merely by showing that the law doesn't always do the good that it's meant to do.
More broadly, be careful when you implicitly assume that the world is neatly divided into two categories—for instance, perfect laws and pointless laws. Such divisions often ignore the existence of a third category, such as laws that do something but not everything.
C. False Alternatives
“Is pornography free speech or hate speech?” “Are race-conscious affirmative action programs permissible or discriminatory?” “Was this speaker's motivation artistic or commercial?” “Should American foreign policy aim at making other countries fear us, or at getting them to work with us?”
The trouble with these either-or questions is that the answer may well be “both.” Pornography might qualify as “hate speech” under some definition, but still be constitutionally protected. Race-conscious affirmative action programs might be discriminatory and yet constitutionally permissible. Speakers may want to both make art and make money from it. American foreign policy might aim at making some countries work with us by making them fear us.
Asking “X or Y?” tends to suggest that the answer must be one or the other. If this suggestion is incorrect, then asking the question will confuse the reader, and may make your argument unsound. And if you do think that X and Y should be mutually exclusive—that, for instance, hate speech should never be protected by the Free Speech Clause—you should demonstrate this mutual exclusiveness, rather than just assuming it by posing the “X or Y?” question.
D. Missing Pieces
A logical argument should consist of several steps that fit together, for instance: “All As are Bs. X is an A. Therefore, X is a B.” Legal arguments aren't exercises in formal logic, but they must still fit logically, with no unproven connections.
Say your argument looks roughly like this:
1. Classifications based on sex are subject to the most exacting scrutiny.
2. Separate schools for boys and girls involve classifications based on sex.
3. Therefore, separate schools for boys and girls are unconstitutional.
The pieces don't quite fit: Points 2 and 3 prove