Thesis Writing for Law Students

1. Thesis Writing for Law Students Prof. Gary Chodorow BFSU 2007-2008 Semester I

2. Class 1 What is scholarly writing? The process of scholarly writing Inspiration: Choosing a topic & developing a “claim”

3. WHAT IS SCHOLARLY WRITING? What Is Scholarly Writing? • Implicitly directed to legislative, executive, and/or judicial decision makers. • Normative (informed by a social goal) and prescriptive (recommending a means to that goal). • Compare: Literary criticism more interpretive • Compare: Natural & social sciences more descriptive

4. Differences Between Scholarly Writing & “Practical” Writing • Audience: Primary audience is academicians and interested legal readers (not a judge or client or supervising attorney). • Purpose: To inform or educate reader about a law-related claim (not predict legal result or advocate on behalf of client). 3. Source of topic: Scholarly writing topics are chosen. Practical legal writing “comes with the client.”

5. Similarities Between Scholarly Writing and “Practical Writing” • Same analytical skills: e.g., analyzing statutes, analyzing cases, using facts, analogy, synthesis. • Same writing skills: e.g., CRuPAC, paragraphing, citations, quotations, grammar, usage, punctuation, style.

7. Sir Isaac Newton modestly noted in a letter to Robert Hooke, "If I have seen further [than you and Descartes] it is by standing upon the shoulders of Giants." • Attribution FNs acknowledge that legal scholars are linked together in their search for justice.

8. What Makes Scholarly Legal Writing Good? • An Original, Important, Timely, and Sound Claim—Says something about the law that hasn’t been said before.

9. What Makes Scholarly Writing Good? (cont’d) • Comprehensive—Provides sufficient background material to enable any law-school-educated person to understand and evaluate the author’s thesis. • Correct—The factual and descriptive material must be accurate. • Logical—The presentation must be well reasoned and well organized. • Clear and readable style—Must be in a somewhat formal style that avoids both the pompous and the colloquial.

10. 10 Sub-Categories of Scholarly Legal Writing • Case cruncher • Law reform article • Legislative note • Interdisciplinary article • Theory-fitting article • On legal profession, legal language, legal argument, or legal education • Continuing a pre-existing scholarly debate • Legal history • Comparative law • Empirical research

11. Format of Scholarly Writing • Introduction: • Plainly states your claim (a.k.a. thesis)= your original analysis of the legal problem & proposed solution. • Roadmap. • Background (factual & legal) • Analysis • Conclusion

12. Format (cont’d): Extensive Footnotes Three functions: • Authority. • Attribution. • Textual footnotes.

13. THE PROCESS OF SCHOLARLY WRITING The Process of Scholarly Writing See handout

14. Inspiration: Choosing a Subject & Developing a Claim • Choose and narrow your Subject • Find a Claim Next Week…. • Test Your Claim • Preemption Check

15. CHOOSE A SUBJECT What are you interested in?

16. What do you have experience in? Ask a professor, judge, or practicing Attorney for an idea.

17. Try Reading… • Legal writing competition topics* • Newspapers & legal newspapers • Westlaw Highlights & Lexis Hot Topics* • Annual survey issues published in many law reviews • Editors’ notes in casebooks • Law review articles mention related unresolved issues in the conclusion or in footnotes • Law blogs

18. NARROW YOUR SUBJECT Think narrow & deep, not broad & shallow Why? • To be original: So much has already been written that comments on general trends or overviews of entire areas of law are usually redundant. • This makes your research & writing more manageable!

19. How to Narrow Your Subject • Determine which of the 10 sub-categories of scholarly writing to fit into.

20. Use your imagination like a zoom lens. Micro view Medium view Macro view

21. Categories of argument from Aristotle’s Rhetoric: • Definition • Comparison • Causation • Substantiation

22. Ask a series of questions: • How can the subject be defined? • Is this a new subject? • Can the subject be divided into parts or aspects? • Can the parts be grouped in any way? • Are there analogous subjects?’ • What are the advantages of this subject or aspect? • What are the defects in this subject or aspect?

23. Ask a series of questions (cont’d): • What other disciplines deal with the subject and to what end? • Is there controversy concerning terminology? • Are there disputes concerning theory? • Is a definitive solution possible? • What future events might affect the subject? • Who is affected? • Is the subject affected by political or public pressure or vested interest? • Who is interested in the subject?

24. FIND A CLAIM Claim = Your original analysis of the legal problem and proposed solution. It is enough to “find one point, one new insight, one new way of looking at a piece of law, and organize your entire article around that. One insight … is all you need.”

25. Characteristics of a Good Claim 1. Original = • Adds something to the body of literature on the topic. • Not enough that you came up with idea on own.

26. You don’t have to be Einstein to find an original claim.

27. Characteristics of a Good Claim (cont’d) 2. Important = not trivial, not obvious, useful. • Timely = new & emerging issue or fresh look at old problem. • Sound

28. Find Your Claim by a Critical Reading of the Literature on Your Subject Ask questions as you read: • What is the text’s thesis? • What are the problems the author identifies? (Bias? Over-simplified? Are there other ways to characterize the problem?) • Are the facts presented accurately? Does the author characterize authority properly?

29. Is the author’s reasoning clear and logical? (Does the author have an unstated reason for his position? Could other arguments be made?) • Does the author make questionable assumptions? • Are the author’s conclusions justified by the evidence? What other conclusions could be reached? • Does the author respond to potential counter-analyses? • If the author’s solution is adopted, what are the likely consequences?

30. Read for Argument Type:

34. Read for Jurisprudence: imagine how different approaches would affect the outcome: • Law and Economics • Formalism • Legal Realism • Legal Process • Fundamental Rights • Critical Legal Studies • Feminist Jurisprudence

35. Probe the Context • Examine the Legal Context: • Legislation: Look at • Purpose of statute. • Predecessor statute. • Other legislative activity on subject. • Court decisions: • Look at lower court decisions. • Compare your case to other cases raising analogous issues. • Probe the Broader Context: Do history, sociology, economics, psychology, etc. illuminate the subject?

36. Reading JournalSample Citation to source in Bluebook format

37. Tips for Your Reading Journal • In your summary of the source, use quotation marks for 7+ words from the author or for memorable language. (Helps avoid accidental plagiarism). • Arrange your reading journal entries by type of source (e.g., statutes, cases, law reviews) or issue.

38. Class 2 Inspiration: Choosing a Subject & Developing a Claim (cont’d) Initial Proposal Research Strategy

39. Inspiration: Choosing a Subject & Developing a Claim (cont’d) Last Week: • Choose and narrow your Subject • Find a Claim This Week: • Test Your Proposed Solution for Soundness • Preemption Check to Ensure Originality

40. What Makes a Proposed Solution “Sound”? • Specific, not “mushy” • Discuss both the substance and procedure of your proposed solution • Consider the political feasibility of your proposed solution

41. TEST YOUR PROPOSED SOLUTION FOR SOUNDNESS 1. Develop a “test suite” of hypotheticals to analyze the soundness of your proposed solution. Example: You propose a statute requiring eviction of tenants in publicly subsidized housing if “the tenant or a guest engages in any drug-related activity in the apartment.”

42. Hypothetical A: Old lady evicted b/c her grandson smoked marijuana in the apt. She was unconscious in hospital at time so couldn’t have known.

43. Hypothetical B: Conscientious mother finds out her son is using drugs. Does everything possible to make him stop—call police, get drug counseling, confronts him, etc.

44. Hypothetical C: Man suspects his sister, who lives with him, sells drugs from the apt. He doesn’t want to get involved, so every day, he stays in his room.

45. TEST YOUR PROPOSED SOLUTION FOR SOUNDNESS (cont’d) 2. Use “critical reading” techniques to analyze your own claim.

46. PREEMPTION CHECK TO ENSURE ORIGINALITY • Look at the articles, books, and cases on your subject to make certain nobody else has already given thorough and thoughtful treatment to the claim you intend to make.

47. Initial Proposal • State your claim • Describe the existing commentary • Statement of originality • Mentor • Progress report

48. Your Claim: Hazardous waste dumps are disproportionately located in neighborhoods occupied by racial minorities. Under current law, there is no feasible way for affected minorities to sue for racial discrimination. The reason is that the constitutional doctrine of equal protection requires proof that the defendant’s action was taken with intent to discriminate on the basis of race. [Cite case]. However, in decisions regarding the location of hazardous waste dumps, usually there is no racist intent or such intent is exceedingly difficult to prove. To provide relief to affected minorities, a federal statute should be enacted that allows plaintiffs to prevail on a claim of discrimination either by showing racist intent in the decision of the site for a hazardous waste dump or by showing that there is already a disproportionate number of hazardous waste dumps in the proposed location.

49. 2. Describe the Existing Commentary: a. Commission for Racial Justice, United Church of Christ, Toxic Wastes and Race in the United States … : This report describes how minorities are disproportionately affected by toxic waste. b. Target of Toxins: Poor communities charge 'environmental racism,' USA Today … : This story covers a national summit on the topic of environmental racism. c. Lawrence S. Bacow & James R. Milkey, Overcoming Local Opposition to Hazardous Waste Facilities: The Massachusetts Approach, 6 Har. Envtl. L. Rev. …: This article proposes a method to compensate neighborhoods for the harm done to them when toxic waste dumps are located there.

50. 3. Statement of Originality