Friday, June 24, 2011

A Legal Historian’s First Book, Part VIII: Doctrine, Clarity, and Context

Perhaps the third chapter of my book should have been called “Things Fall Apart.” This title would reflect both the subject of the chapter—a series of crises feminists confronted in the mid-1970s—as well as my struggle with the chapter’s narrative flow. In “Recession, Reaction, Retrenchment,” I try to integrate economic and political background with specific examples of how race-sex analogies grew more problematic in the mid-1970s as an increasingly conservative polity entertained second thoughts about the civil rights revolution. The content of the chapter remained unusually stable, but I must have switched the order at least a dozen times before finding a structure that made sense (to me, at least) both chronologically and thematically.

Part of my problem stemmed from the inherent tensions between writing about (often dense) legal doctrines and strategies, and situating the twists and turns of constitutional argumentation within a larger political and social context. When I gave several chapter drafts to a brilliant historian friend who is not a lawyer, her exclamations of confusion and ennui in the margins of the more “legal” sections reminded me that not everyone is as interested as I am in the behind-the-scenes machinations of lawyers, judges, and their clerks. Moreover, she noted, terms like “strict scrutiny” and “disparate impact” require clear and concise explanations the first time they are mentioned.

Eventually, I decided that Chapter 3 should open with a snapshot of economic recession and political polarization seen through the eyes of Eleanor Holmes Norton and Aileen Hernandez, protagonists familiar to the reader from the preceding chapter. Then I would ease into the chapter with the least doctrinal section—a profile of Phyllis Schlafly and her cooptation of race-sex analogies for decidedly anti-feminist (and, more subtly, racially conservative) purposes. The prolific Schlafly, always a gifted rhetorician, became more legally fluent and savvy over the course of the 1970s, as she earned a law degree and frequently debated the ERA with feminist lawyers. At the same time, most of her writing from this period is directed toward a popular audience and requires no translation from legalese. After using Schlafly to introduce several of the chapter’s themes, I could then plunge into my examples of feminists’ difficulties in deploying race-sex parallels, exploring contexts including pregnancy discrimination, sex-segregated education, and the collision of “benign” sex classifications and race-based affirmative action in the Supreme Court.

The challenge of writing accessibly became even more acute in Chapter 4, “Reasoning from Sex.” At its low point, this draft chapter was a sprawling morass of complicated doctrinal twists and turns, at times an unrelenting march through caselaw unleavened by context or color. Several generous colleagues helped me wrestle this behemoth of a chapter to the floor and their tips bear repeating:

1.      1. Begin each chapter with a short anecdote that captures an important piece of context or a central argument of the chapter. 

2.      2. Be sure that you can state the argument of each chapter in a couple of sentences, and summarize it in a paragraph.

3.      3. Write short, punchy topic sentences. A reader should be able to glean the gist of the chapter from reading the first sentence of each paragraph.

4.      4. As tempting as it may be, don’t include more than two or three quotations/pieces of evidence in each paragraph.

5.      5. A book is not a law review article and should not be clogged with road-maps and redundant summaries. Don’t repeat yourself, or give away the ending at the beginning of a chapter.

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