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 youll want to usejust
  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 youre 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 pointits 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 theyre 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 youve 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)

• Dont 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.

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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 Youre 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 topicnuances 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 isnt 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
• Dont 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)

• Dont 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)

1. Articles that pose problem without solving it.
2. Articles that merely explain what the law is.
3. Case notes. Discuss issue, not case.
4. Responses to others works. Discuss issue, not
   someone elses article.
5. Single-state articles.
6. 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 wont 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 theres a problem.
• Do this with concrete examples.
• Briefly state the claim.
• Briefly show novelty, nonobviousness, utility,
  soundness.
• Do this quickly and forcefullycut to the chase.

21
Step 6 Write Background Explanation Section (p.
34)

• Keep it as short as possible.
• Dont describe each precedent synthesize them.
• Avoid unnecessary historical discussion.
• Focus most of your article on the value youre
  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)

• Dont say this is the only interpretation of the
  cases / text / facts.
• Say this is the best interpretation, because . .
  . .
• Dont say this proposal has no costs.
• Say this does cause some problems / sacrifice
  the government interest in some measure / create
  some uncertainty, but thats OK because . . . .

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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.

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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?)

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Step 9 Writing (p. 69)

• Your readers are very busy its 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 writtenit 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.

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Using Other Editors Effectively (p. 72)

• Ask friends to read the piece and give you
  editing suggestions.
• Give your professor a rough draft that youve
  already closely proofread.
• Give the draft to the professor as early as
  possible.
• Treat each editing comment as a global suggestion.

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Summary

1. Find a problem.
2. Do your research.
3. Create a test suite.
4. Identify your claim.
5. Write Introduction.
6. Write background explanation section.
7. Prove your claim.
8. Connect to broader issues.
9. Edit, edit, edit.