Academic Legal Writing - Eugene Volokh [72]
Why?
1. Overstating your argument raises your burden of proof. Call an argument “fraudulent,” and skeptical readers might say “Wait, is it really fraudulent, or could it just be an honest error?”; and this will distract them from your more important claim, which is that the argument is just wrong. Likewise, call the argument “irrational,” and skeptical readers may try to find some reasonableness in it. You don't want to weaken your claims by making unproven and unnecessary allegations.
2. No one likes a bully. Excessive harshness may alienate readers and make them sympathize with your adversaries.
3. Invective often hides lack of substance. Readers realize this, and become suspicious when they hear overheated rhetoric.
4. Readers are less likely to tolerate harsh criticism by juniors—such as law students or young lawyers—than similar criticism by respected scholars. By all means, pick fights with the Big Guns; your professor and other readers will admire your pluck. But be scrupulously polite to the people you criticize: A polite upstart is more tolerated than a rude one.
5. There's no need to make unnecessary enemies. When you're applying for a job, and Justice X's former law clerk is reading your article, you'll be glad that you called Justice X's arguments “mistaken” rather than “stupid.” This shouldn't stop you from expressing disagreement; people respect honest disagreement. But they don't respect rudeness, or even borderline rudeness, especially rudeness to people they know and like.
6. If you're ultimately proven wrong, even in part, it's much easier to gracefully backpedal from a mistaken assertion that some argument “seems unsound” than from a mistaken assertion that the argument is “idiotic.”
Follow Prof. Dan Markel's advice: “Anytime I'm tempted to write out of rage that someone's argument is hopelessly misguided or fabulously wrong, I try to remember how much I cringe when my own work is criticized. I drop adverbs and instead use locutions such as [‘]the claims advanced in the article ‘seem mistaken or inaccurate’ for the following reasons.[’] ... This helps focus on[] what Michael Walzer wisely described[ as] the task of ‘getting the arguments right.’ [Scholarship should be about that, not] about making anyone look foolish or wicked.”19
B. Personalized Criticism
Attack arguments, not people. Most readers will react better to “this argument is wrong because ...” than to “Volokh is wrong because ....” Likewise, when you're criticizing an argument, don't call it Volokh's argument. Label it by name (“the cost-lowering slippery slope argument”) or just say “the argument,” if it's clear from context which argument you're referring to. Of course, properly attribute your adversary's argument, but do it in the footnotes, or with no more than one named reference in the text.
This sort of circumlocution helps readers feel that your disagreements are substantive, not personal. There's nothing inherently rude about criticizing a person's argument using his name, but such criticism tends to come across as unduly combative, even when it's not intended that way. And the more substantively devastating your criticism is, the more you should keep the devastated author's name out of it.
C. Caricatured Criticism
Prof. Dan Markel puts it well:
[Avoid] the drive-by characterization of or criticism against a “school of thought.” One often reads something like: retributivists believe X, or utilitarians believe Y, or [critical legal studies scholars] think Q and originalists think R....
[T]his is largely unhelpful, except in very introductory materials. Far better to name names and cite particular works of scholarship than to make vague generalizations that are more often accepted by critics of the particular school of thought but rarely accepted by adherents to the relevant school of thought.
Relatedly, avoid