Writing a Student Article

1. Writing a Student Article Based on Eugene Volokh, Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers

2. Note to Presenters • This material is just a starting point that you might find useful. • It has more slides that you’ll want to use—just choose the ones you like. • Update these as you please, adding, deleting, or modifying various items.

3. Note to Presenters (cont.) • Check the “Notes” fields on many of these slides, for instance by printing out the slides with the “Print What” option set to “Notes Pages.” • These notes give you tips on what you might say as you’re presenting the slide.

4. Note to Presenters (cont.) • You might give this talk in several phases: For instance, • the material on finding a claim before summer break, • the material on writing and structure after, and • the material on cite-checking in a separate talk.

5. Note to Presenters (cont.) • For more information on each slide, see the book page noted in the heading. • Encourage listeners to also refer to that page if they have more questions. • Before giving this presentation, refresh your recollection of the book by skimming the referenced page. The slide text only contains a brief summary of the point—it’s up to you to provide more details orally.

6. Note to Presenters (cont.) • The slides usually give general points. • Definitely include concrete illustrations, but I find they’re best presented orally. • The book gives plenty of examples, but you might also come up with your own.

7. Step 1: Find Problem; Possible Sources (p. 11) • Cases you’ve read for class that leave things unresolved. • Class discussions that intrigued you. • Questions in casebooks. • New S. Ct. cases that create/leave open issues. • Advice from faculty members. • Westlaw Bulletin (WLB) and similar databases. • http://www.lawtopic.org.

8. Step 2: Do Research (p. 63) • Identify sample cases and incidents. • Get the big picture: Read a short book on the subject (e.g., Concepts and Insights, Nutshell, Understanding). • Get the details: Read treatise(s). • Get the details: Fully read all the cases and statutory provisions that are relevant. • Find other articles (literature search).

9. Step 3: Build Test Suite (p. 19) • The test suite will help you identify sound solution to your problem. • Problem: When should religious objectors get exemptions from paternalistic laws? • You came up with problem because you were outraged about people being denied religious exemptions from peyote bans.

10. Include in Test Suite (p. 22) • Don’t just think about how the proposal affects peyote bans; consider a broader set of test cases: • bans on assisted suicide; • bans on dueling; • bans on drinking poison or handling snakes; • motorcycle helmet laws.

11. Creating Test Suite (p. 22) • Plausible cases (good to draw them from real incidents). • Cases that track the famous precedents. • Cases that you know are hard cases for your thesis. • Cases that yield different bottom-line results. • Cases involving issues that appeal to different political perspectives.

12. Step 4: Identify Claim (p. 9) • Claim = solution to your problem. • Come up with claim that is • sound = yields results that you think are right when applied to your test suite; • novel; • nonobvious; • useful.

13. Soundness (p. 20) • Applying your proposal to your test suite cases might suggest that the proposal is: • mistaken, and needs changing or narrowing; • too vague, and needs clarifying; • produces unexpected insights that are worth explaining; • reaches the right results, which are worth highlighting.

14. Novelty (p. 13) • Your claim should be a novel solution to problem. • New to everyone, not just to you: You’re trying to add to the body of professional knowledge. • Best to have a novel claim. • But a novel justification will do, too. • Look for special nuances present in some situations within your broad topic—nuances that let you say “the rule should be X in these cases, but Y in those.”

15. Nonobviousness (p. 15) • Your proposal needs to add something new to our knowledge of a field (novelty). • But it also has to be something that isn’t that easy to figure out. • Example: Claims about new statutes are often novel, but they might be obvious.

16. Utility (p. 15) • Maximize the usefulness of your proposal: • Don’t limit yourself to one state. • Discuss the issue, not a particular case. • Try to make claims that are useful to lawyers, judges, and academics. • Try to make politically plausible claims.

17. Making Article More Useful (p. 15) • Don’t fight binding Supreme Court precedent. • Instead, focus on questions that the precedent creates or leaves unanswered. • Apply argument to other jurisdictions (e.g., state constitutions, not just the federal one). • Incorporate prescriptive implications (what should be done) of your descriptive findings (what is true or what has happened).

18. You Might Want to Avoid (p. 28) • Articles that pose problem without solving it. • Articles that merely explain what the law is. • Case notes. Discuss issue, not case. • Responses to others’ works. Discuss issue, not someone else’s article. • Single-state articles. • Topics that Court or Congress may visit soon, and thus preempt.

19. Step 5: Write Introduction (p. 31) • The most important part of the article: • Persuades some people to read further. • Summarizes claim for those who won’t read further. • Provides a frame through which those who do read further will interpret what follows.

20. Writing Introduction (p. 31) • Write first, then rewrite after article is done. • Show there’s a problem. • Do this with concrete examples. • Briefly state the claim. • Briefly show novelty, nonobviousness, utility, soundness. • Do this quickly and forcefully—“cut to the chase.”

21. Step 6: Write Background Explanation Section (p. 34) • Keep it as short as possible. • Don’t describe each precedent; synthesize them. • Avoid unnecessary historical discussion. • Focus most of your article on the value you’re adding to the field, • not on a restatement of what courts or commentators have already said, which is what such sections usually provide.

22. Step 7: Prove Your Claim (p. 35) • Prove that the result is the right under the statute or the caselaw and that it makes good policy sense. • Use concrete examples. • The test suite is a good source of these. • Turn problems to your advantage, rather than just ignoring them. • Look for unexpected implications of your analysis.

23. Turning Problems to Your Advantage (p. 36) • Don’t say “this is the only interpretation of the [cases / text / facts].” • Say “this is the best interpretation, because . . . .” • Don’t say “this proposal has no costs.” • Say “this does cause some problems / sacrifice the government interest in some measure / create some uncertainty, but that’s OK because . . . .”

24. More on Problems (p. 36) • Confronting the problems can lead you to refine your claim, • thus making more novel, nonobvious, and useful. • Acknowledging uncertainty can make your argument more persuasive. • Acknowledging uncertainty can make you seem more sensible and worldly.

25. Step 8: Connect to Broader Issues (p. 38) • Import ideas from related fields (e.g., borrow from free speech law in discussing what right-to-bear-arms law should look like) • Import ideas from broader fields (e.g., borrow from broad theories of rights or of constitutional interpretation)

26. Connecting (cont.) • Export to related fields insights drawn from your analysis (e.g., how does your opinion on waiting periods for gun purchases bear on waiting periods for abortions, voting, parades, etc.?) • Export to broader fields (e.g., what do the problems with applying strict scrutiny here show about the weaknesses of strict scrutiny generally?)

27. Connecting (cont.) • Connect to subsidiary questions (e.g., what are the procedural implications of your substantive proposal?). • Ask what practical implications your proposal will have (e.g., how will legislatures react if your constitutional proposal is implemented?)

28. Step 9: Writing (p. 69) • Your readers are very busy; it’s much easier for them to put your article down than to keep reading it. • Therefore, avoid: • redundancy; • legalese; • surplusage and platitudes; • meandering paragraphs and sections.

29. Better Writing Through Editing (p. 69) • “Nothing is ever written—it is rewritten.” • Go through many drafts. • Edit on paper. • In the first draft, try to find at least one correction or improvement for each paragraph. • If you need to reread something to understand it, rewrite it. • Finish first draft quickly, so you can do many more.

30. Using Other Editors Effectively (p. 72) • Ask friends to read the piece and give you editing suggestions. • Give your professor a rough draft that you’ve already closely proofread. • Give the draft to the professor as early as possible. • Treat each editing comment as a global suggestion.

31. Summary • Find a problem. • Do your research. • Create a test suite. • Identify your claim. • Write Introduction. • Write background explanation section. • Prove your claim. • Connect to broader issues. • Edit, edit, edit.