Academic Legal Writing - Eugene Volokh [60]
Before writing your proof section, and again after finishing it, summarize each significant assertion in one sentence, much like the list I've just given. Then see if the assertions fit each other. If they don't fit together on your list, they probably don't fit together in the paper.
E. Criticisms That Could Apply to Everything
It's not enough to say that a law “has a chilling effect,” or “starts us down the slippery slope,” or “imposes the majority's morality on the minority,” or “intrudes on people's privacy.” Most laws that constrain people's conduct—murder laws, antidiscrimination laws, bans on cruelty to animals—impose the majority's morality on the minority; sometimes that's good. Many laws have chilling effects or intrude on people's privacy; but we often tolerate this because these laws' good effects outweigh the bad. Almost every law potentially starts us down some slippery slope, but that's not reason enough to reject it.
Be specific. Explain why this chilling effect is worse than other chilling effects that we're willing to tolerate (and what exactly you mean by chilling effect). Explain why this slope is more slippery than others, or why it's wrong to impose this particular kind of moral principle on people, or why this intrusion on privacy is unjustified even though other intrusions are permissible.
Whenever you criticize a law, especially when you do it using generalities, ask yourself whether the criticism could equally apply to laws that you endorse. If it can, refine your criticism to make clear specifically why this law is bad when the others are good.
F. Metaphors
Metaphors can make your writing more vivid, but they can also hide logical error and incompleteness.
Metaphors are literally false. Societies do not literally slip down slopes. Laws do not literally chill speech. These terms have some truth to them, but only to the extent that they describe concrete mechanisms and not just abstract metaphors. When we say “slippery slope,” that's shorthand for “this seemingly unobjectionable decision may cause other, much more troublesome decisions in the future.”* When we say “this speech restriction has a chilling effect,” that's shorthand for “this speech restriction may deter certain speech even though the restriction ostensibly doesn't cover that speech.”
Once you unpack the metaphor this way, you can see that you need to support it with a more concrete explanation. Why would this decision lead to other decisions in the future? What speech would be deterred by this restriction, and how?
Many people omit these explanations, perhaps because the metaphors sound self-explanatory. In the physical world, we can say “Watch out for that driveway—the slope there is slippery” without further explanation, because we know the mechanism that underlies the slippery slope: It's gravity coupled with inadequate friction.
But these physical mechanisms obviously don't carry over to slippery slopes in law; so when we use the term “slippery slope” metaphorically, our argument is incomplete unless we give more details about what the metaphor really means. Whenever you see a metaphor, ask yourself, “To what actual phenomenon does this figurative usage refer?,” and describe this phenomenon. If you think the metaphor helps people understand your point, you can still keep the metaphor as well as the actual description. But remember that the heart of your argument should be the real, not the figurative.
G. Undefined Terms
Look skeptically at any abstraction that you mention but don't specifically define, such as “paternalism,” “privacy,” “democratic legitimacy,” “fundamental fairness,” “evolving standards of decency,” “narrow tailoring,” “good faith,” or the like. These abstractions can be useful, but they are vague enough that (1) the reader might not clearly understand what you mean by them, (2) you