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

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writing a student article

Writing a Student Article

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

note to presenters
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.
note to presenters cont
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.
note to presenters cont4
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.
note to presenters cont5
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.
note to presenters cont6
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.
step 1 find problem possible sources p 11
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.
step 2 do research p 63
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).
step 3 build test suite p 19
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.
include in test suite p 22
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.
creating test suite p 22
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.
step 4 identify claim p 9
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.
soundness p 20
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.
novelty p 13
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.”
nonobviousness p 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.
utility p 15
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.
making article more useful p 15
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).
you might want to avoid p 28
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.
step 5 write introduction p 31
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.
writing introduction p 31
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.”
step 6 write background explanation section p 34
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.
step 7 prove your claim p 35
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.
turning problems to your advantage p 36
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 . . . .”
more on problems p 36
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.
step 8 connect to broader issues p 38
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)

connecting cont
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?)

connecting cont27
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?)

step 9 writing p 69
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.
better writing through editing p 69
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.
using other editors effectively p 72
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.
summary
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.