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Thesis Writing for Law Students. Prof. Gary Chodorow BFSU 2007-2008 Semester I. Class 1. What is scholarly writing? The process of scholarly writing Inspiration: Choosing a topic & developing a “claim”. WHAT IS SCHOLARLY WRITING?. What Is Scholarly Writing?.

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Thesis Writing for Law Students

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Thesis writing for law students l.jpg

Thesis Writing for Law Students

Prof. Gary Chodorow

BFSU 2007-2008 Semester I


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Class 1

What is scholarly writing?

The process of scholarly writing

Inspiration: Choosing a topic & developing a “claim”


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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


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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.”


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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.


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What Makes Scholarly Legal Writing Good?

  • An Original, Important, and Timely Thesis—Says something about the law that hasn’t been said before.


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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.


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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


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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


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    Format (cont’d): Extensive Footnotes

    Three functions:

    • Authority.

    • Attribution.

    • Textual footnotes.


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    THE PROCESS OF SCHOLARLY WRITING

    The Process of Scholarly Writing

    See handout


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    Inspiration: Choosing a Subject & Developing a Claim

    • Choose and narrow your Subject

    • Find a Claim

      Next Week….

    • Test Your Claim

    • Preemption Check


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    CHOOSE A SUBJECT

    What are you interested in?


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    What do you have experience in?

    Ask a professor, judge, or practicing

    Attorney for an idea.


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    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


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    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!


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    How to Narrow Your Subject

    • Determine which of the 10 sub-categories of scholarly writing to fit into.


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    Use your imagination like a zoom lens.

    Micro view

    Medium view

    Macro view


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    Categories of argument from Aristotle’s

    Rhetoric:

    • Definition

    • Comparison

    • Causation

    • Substantiation


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    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?


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    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?


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    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.”


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    Characteristics of a Good Claim

    Original =

    • Adds something to the body of literature on the topic.

    • Not enough that you came

      up with idea on own.


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


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    Characteristics of a Good Claim (cont’d)

    • Important = not trivial, not obvious, useful.

    • Timely = new & emerging issue or fresh look at old problem.


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    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?


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    • 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?


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    Read for Argument Type:


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    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


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    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?


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    Sample Reading Journal

    Citation to source in Bluebook format


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    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.


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