Academic Legal Writing - Eugene Volokh [80]
Why do all this? Four reasons:
1. Accuracy for its own sake. You should want your article to be correct; honesty requires this, and it will make you feel better about your work.
2. Persuasiveness. Many people who read the article will know the flaws in the studies, or at least will know enough about the subject that they'll sense that there might be something wrong. If you acknowledge the flaws but explain why the studies are still basically sound, you might persuade these readers—but if you ignore the problems, you'll lose credibility.
3. Depth. Showing your awareness of the possible weaknesses in the data will make the article deeper and more thoughtful, and thus more impressive.
4. Grade. Your professor, who's giving you the grade, is probably one of those readers who knows the studies' flaws. Confronting the flaws will get you a better grade than you'd get if you ignored them.
C. Compromise Wisely
These suggestions—track down the original source, don't rely on newspaper accounts, e-mail people who are quoted to make sure that the quotes are accurate, check the studies that you cite—are timeconsuming, and you might not have much time: Your seminar paper or law review article is due at the end of the semester, you have to study for other classes, and you have to actually write the article.
It's best if you follow all the suggestions given above, because they aren't as time-consuming as they may appear, and they help avoid embarrassing and grade-reducing errors. But if you do need to cut corners, here are a few items to consider in deciding when to do so:
1. Importance. If an assertion is one of the significant steps in your chain of reasoning, check it particularly well.
2. Controversy. If an assertion seems especially controversial or counterintuitive, make extra sure that it's right. First, such assertions are more likely to be wrong or exaggerated than the conventional wisdom tends to be. Second, your readers (including the person who is grading you) are more likely to pay close attention to these assertions.
3. Personal accusation. If you're claiming that some person or small group did something bad or foolish, make sure that you have solid proof. This is a matter both of fairness to the targets and of self-protection—readers are especially likely to scrutinize such accusations closely.
4. Ease of finding the original source. If the original source is easy to find—for instance, if it's a case or a statute—there's no good excuse for relying on a summary in an intermediate source.
5. Bias. Information in an opinion piece, in a law review article written by an advocate for a particular position, or on a site run by an advocacy group is more likely to be unreliable or incomplete than information in a more objective news story or treatise. And careful readers will be especially likely to notice the bias of such sources (especially when the sources are advocacy groups), and lose confidence in your own article as a result. So even if you have to save time by trusting someone, avoid cutting corners with sources like these: Track down the original study, and read, quote, and cite the study, not the advocacy group's summary of the study.
D. Be Careful with the Terms You Use
1. Avoid false synonyms
The law is full of terms that sound similar—for instance, murder, killing, and homicide—but that are actually different. These sorts of seeming synonyms can trip you up if you aren't careful.
Here's an example, from the article mentioned on p. 144:
In 1905 [New York] ... outlaw[ed] the possession of firearms in any public place by the foreign born (New York State 1905). [footnote: Pennsylvania's law forbidding foreign born residents from killing any animal was upheld by the U.S. Supreme Court in [Patsone] v. Pennsylvania, 232 U.S. 138 (1914).]
The author also mentioned this two more times in the same article, and in three other articles and a book.
It turns out, though, that neither the New