Academic Legal Writing - Eugene Volokh [9]
11. “Conventional wisdom that ... is wrong, because ....”
So a few examples:
1. “The ban on paying for organs to be transplanted violates patients' constitutional rights to defend their lives.” This fits in category #1 discussed above.
2. “Punishing citizens for failing to report crimes that they observe may sometimes discourage reporting, because people who fail to report promptly will realize they've committed a crime and will thus be reluctant to talk to the police later.” Category #4.
3. “Courts often favor the more religious parent over the less religious parent in child custody decisions, and this violates the Establishment Clause.” Category #8, because it contains a potentially novel descriptive claim (about what courts do) as well as a prescriptive claim.
4. “Though many people assume that liberal Justices have broader views of free speech than conservative Justices, it turns out that Justice Kennedy has the broadest view of free speech, Justice Breyer has the narrowest, and the other Justices fall in between without a clear liberal-conservative pattern.” Category #11.
Capturing your point in a single sentence helps you focus your discussion, and helps you communicate your core point to the readers. Moreover, many readers will remember only one sentence about your article (especially if they only read the Abstract or the Introduction, as many readers do). You need to understand what you want that sentence to be, so you can frame your article in a way that will help readers absorb your main point.
2. The descriptive and the prescriptive parts of the thesis
The most interesting claims are often ones that combine the descriptive and the prescriptive, telling readers something they didn't know about the world—whether it's about what courts have done, how a legal rule changes people's behavior, or why a rule has developed in a particular way—but also suggesting what should be done. The descriptive is valuable because many people are more persuadable by novel facts than by novel moral or legal arguments. The prescriptive is valuable because it answers the inevitable “so what?” question that many practical-minded readers will ask whenever they hear a factual description, even an interesting one.
You can certainly write an article that's purely prescriptive or purely descriptive (though see Part I.I.4, p. 36 for a discussion of one sort of descriptive piece that you might want to avoid). Combining the prescriptive and the descriptive, however, tends to yield a more interesting and impressive article. So, as you're developing your claim, try to look both for novel, nonobvious, useful, and sound descriptive assertions and for novel, nonobvious, useful, and sound prescriptions.
Thus, for instance, say that you are writing about freedom of speech and hostile public accommodation harassment law, under which courts and administrative agencies award damages when proprietors of public accommodations allow speech that creates a racially, ethnically, religiously, or sexually hostile environment for some patrons. You could just use First Amendment precedents and First Amendment theory to analyze the hostile public accommodation environment rules, and explain why they should be preserved, changed, or repealed (the prescriptive dimension).
But if you could find cases, including perhaps hard-to-discover administrative agency decisions, that show that there's a real problem, and that hostile public accommodations environment law is indeed restricting potentially valuable speech (the descriptive dimension), your argument would be stronger. It would better persuade readers that your proposal is useful, since many readers might otherwise be skeptical that there's a problem to be solved. It would help you more concretely present your prescriptive argument. And even if the readers disagree with, skim over, or forget your prescriptive argument, they might still find value in your novel descriptive observations—and give you credit for making these discoveries.