Academic Legal Writing - Eugene Volokh [74]
Part of the reason is honesty and professional responsibility, but another part is self-interest: Instructors don't like errors, and neither do other readers. A couple of mistakes, even on tangential matters, can undermine the credibility of all the sound arguments you make. An error, however small, can be like the proverbial thirteenth chime of a clock—not only wrong itself, but casting doubt on all that came before it.
If some evidence seemingly contradicts your claim, you can confront the problem and explain why your claim is nonetheless sound. But if you try to hide the problem by misdescribing the evidence, you'll damage your argument much more than if you had been candid about the issue. This Part offers tips for avoiding common errors in the use of evidence, together with some examples drawn from real cases and articles (though with the authors' names intentionally omitted).
The examples are ones that I've run across in my own research, so you'll find them skewed towards those areas in which I work. But you can find similar problems in any field of scholarship, coming from all perspectives, left, center, right, and beyond, and even in the work of otherwise careful writers.
A. Read, Quote, and Cite the Original Source
Whenever you make a claim about some source, you nearly always must read the original source. Do not rely on an intermediate source—whether a law review article or a case—that cites the original. You should generally also cite the intermediate source that pointed you to the original, to credit it for helping you. But also cite the original, and reason based on the original.
1. Legal evidence
If you're discussing a case or a statute, read, quote, and cite the case or statute itself. Do not rely on other cases, articles, treatises, or encyclopedias that mention the source.* Check the original. If you can't find the original, ask your librarians; they will usually be glad to help you.
Intermediate sources may seem authoritative, but they're often unreliable, whether because of bias or honest mistake. You can't let their mistakes become your mistakes.
Here's an example, from an interdisciplinary faculty-edited journal published by a leading university press:
On the one occasion when such [gun control] legislation was overturned, in Bliss v. Commonwealth (1822), the Kentucky Supreme Court ruled that state regulation of firearms violated the state's militia amendment, which granted an explicitly individual right to bear arms (12 Ky. 90). In response, the legislature immediately amended the state constitution to allow such legislation, rewriting the militia amendment to more closely match the federal Constitution's Second Amendment (Kentucky 1835).21
Seems reliable, no? Well, it turns out that:
(a) Bliss did not involve “the state's militia amendment,” but rather a constitutional provision that never mentioned the militia: “That the rights of the citizens to bear arms in defence of themselves and the State shall not be questioned.”22 The militia provisions were in a separate article of the constitution.23 And the provision was technically not an amendment, since it was enacted together with the rest of the state constitution.
(b) The legislature did not immediately amend the state constitution. The constitution provided no mechanisms for amendment,24 and the provision was changed only when a new constitution was adopted in 1850—28 years after Bliss.25 The Kentucky 1835 source, which actually gives an 1834 publication date on its title page, does not show any change to the original provision.
(c) The 1850 revision did not make the right to bear arms provision “more closely match the federal Constitution's Second Amendment”—it added the clause “but the general assembly may pass laws to prevent persons from carrying concealed arms,” which doesn't appear in the Second Amendment.
Whoops! Pretty embarrassing for the author. But if you cited this as evidence of what Bliss said and what the Kentucky legislature did, then it would be embarrassing for you.