Volokh's Academic Legal Writing: Law Review Articles, Student

307 Pages·2013·3.6 MB·English

by  Volokh, Eugene

TABLE OF CONTENTS
FOREWORD, BY JUDGE ALEX KOZINSKI
INTRODUCTION
ACKNOWLEDGMENTS
I. FINDING WHAT TO WRITE ABOUT (THE CLAIM)
A. The Claim
1. Your basic thesis
2. The descriptive and the prescriptive parts of the thesis
B. Finding a Claim
1. Finding a problem
2. ... in cases you've read for class, or in class discussions
3. ... in casebook questions
4. ... in issues left over or created by recent Supreme Court cases
5. ... in your work as a research assistant
6. ... by asking faculty members
7. ... by asking practicing lawyers
8. ... by checking Westlaw summaries of important recent cases
9. ... by paying attention to interesting newspaper articles
10. ... by reading legal blogs
11. ... by finding articles that aim to identify unanswered problems
12. ... by looking back at your experience as an extern or summer associate
13. ... by thinking back on your pre-law-school experiences
14. ... by attending symposia or panels
15. Looking for future claims when you're in class
16. Checking with your law school's faculty
17. Keeping an open mind
18. Identifying a tentative solution
C. Novelty
1. Adding to the body of professional knowledge
2. Making novelty through nuance
D. Nonobviousness
E. Utility
1. Focus on issues left open
2. Apply your argument to other jurisdictions
3. Incorporate prescriptive implications of your descriptive findings
4. Consider making a more politically feasible proposal
5. Avoid unnecessarily alienating your audience
F. Soundness: Prescriptive Claims
1. Avoid excessive mushiness
2. Avoid reliance on legal abstractions
3. Avoid procedural proposals that don't explain what substantive standards are to be
applied
G. Soundness: Historical and Empirical Claims
1. Get advice from historians or empiricists
2. Look for books and non-law articles
3. Watch out for the historian's “false friends”
4. Consider whether you're limiting your dataset in ways that undermine your
generalizations
5. Pay especially close attention to the Using Evidence Correctly chapter below (Part
XVII)
H. Selling Your Claim to Your Readers
I. Topics and Structures You Should Generally Avoid
1. Articles that identify a problem but don't give a solution
2. Case notes
3. Single-state articles
4. Articles that just explain what the law is
5. Responses to other people's works
6. Topics that the Supreme Court or Congress is likely to visit shortly
J. If You Must Write a Case Note
II. TEST SUITES: MAKING PRESCRIPTIVE CLAIMS MORE SOUND
A. What a Test Suite Is
B. What You Might Find by Testing Your Proposal
1. Identifying errors
2. Identifying vagueness
3. Finding surprising results
4. Confirming the value of your proposal
C. Developing the Test Suite
1. Identify what needs to be tested
2. Use plausible test cases
3. Include the famous precedents
4. Include challenging cases
5. Have a mix of cases
6. Include cases that yield different results
7. Include cases that appeal to different political perspectives
8. Include cases that implicate different interests and policy arguments
III. WRITING THE INTRODUCTION
A. The Role of the Introduction
B. Show That There's a Problem, and Do So Concretely
C. State the Claim
D. Frame the Issue
E. Do All This Quickly and Forcefully
F. Some Ways to Start the Introduction
1. Start with the concrete questions you will try to answer
2. Start with concrete examples
3. Start with an engaging story
4. Start with a concrete but vivid hypothetical that illustrates your point
5. Start with an explanation of a controversy
6. Start with an argument or conventional wisdom you want to rebut
G. Organize the Introduction as a Roadmap
IV. WRITING THE “BACKGROUND” SECTION
A. Focus on the Necessary Facts and Legal Rules
B. Synthesize the Precedents; Don't Summarize Each One
V. WRITING THE PROOF OF THE CLAIM
A. Show Your Prescription Is Both Doctrinally Sound and Good Policy
B. Be Concrete
C. Use the Test Suite
D. Confront the Other Side's Arguments, but Focus on Your Own
E. Turn Problems to Your Advantage
1. Improve your argument
2. Refine your claim
3. Acknowledge uncertainty
4. Acknowledge costs
F. Connect to Broader, Parallel, and Subsidiary Issues
1. Make your article richer: Go beyond the basic claim
2. Connections: Importing from broader debates
3. Connections: Exporting to broader debates
4. Connections: Importing from parallel areas
5. Connections: Exporting to parallel areas
6. Connections to subsidiary questions
7. A cautionary note
VI. THE CONCLUSION, AND AFTER THE CONCLUSION
A. Write the Conclusion
B. Rewrite the Introduction After the Draft Is Done
1. Rewrite the introduction in light of how your thinking has changed
2. Note all your important and nonobvious discoveries
C. Decide What to Set Aside
VII. FINISHING THE FIRST DRAFT, AND THE ZEROTH DRAFT
A. Defeat Writer's Block by Skipping Around
B. The Zeroth Draft
C. As You Write, Use Subsection Headings
D. Use a Table of Contents
E. Note Down All Your Ideas
VIII. TIPS ON RESEARCHING
A. Identifying Sample Cases and Incidents
B. Understanding the Law
1. Get the big picture
2. Get the details
3. Find other works on the topic (the literature search)
4. Identify how the articles you find are relevant
C. Knowing When to Start Writing
D. Digging Deeper into the Key Sources
E. Digging Deeper into the Subject of the Legal Rules
F. Talking to Your School's Reference Librarians
1. If you've selected a topic
2. If you're looking for a topic
3. If you have questions about a specific task
4. If you want bluebooking help
5. Talk to the librarians with the right attitude
G. Use Books and Treatises
H. Use the Most Readable Printout Formats
I. Search for Older Articles on HeinOnline
J. Use ATLEAST, NOT W/, and SY,DI() Searches
K. Researching Older Anglo-American Law
1. Old treatises
2. Old English cases
3. Modern history books and articles
4. Online databases
5. Reporters that aren't on Westlaw and Lexis
6. Watching out for past legal conventions
7. Watching out for old citation formats
8. Finding the right terms to search for
IX. EDITING: GENERAL PRINCIPLES
A. Go Through Many Drafts
B. If You See No Red Marks on a Paragraph, Edit It Again
C. If You Need to Reread Something to Understand It, Rewrite It
D. Ask “Why?”
E. Ask “Why Not?”
F. Use Your Imaginary Friend (and Adversary)
G. Use a Trusted Classmate (or Two)
H. Read the Draft with “New Eyes”
I. Conquer Your Fear
J. There Are No Lazy Readers—Only Busy Readers
X. EDITING: GETTING HELP FROM YOUR FACULTY ADVISOR
A. Ask Your Advisor for Especially Detailed Advice
B. Give Your Advisor an Already Closely Proofread Draft
C. Give Your Advisor a Rough Draft as Quickly as Possible
D. Treat Each Editing Comment as a Global Suggestion
XI. WRITING: LOGICAL PROBLEMS TO WATCH FOR
A. Categorical Assertions
B. Insistence on Perfection
C. False Alternatives
D. Missing Pieces
E. Criticisms That Could Apply to Everything
F. Metaphors
G. Undefined Terms
H. Undefended Assertions, and “Arguably”/“Raises Concerns”
I. Proofread, Proofread, Proofread
XII. WRITING: PARAGRAPH-LEVEL PROBLEMS TO WATCH FOR
A. Paragraphs Without a Common Theme
B. Long Paragraphs
C. Inadequate Connections Between Paragraphs
XIII. WRITING: SENTENCE/CLAUSE PROBLEMS TO WATCH FOR
A. Redundancy
B. Unnecessary Introductory Clauses
C. Other Unnecessary Phrases
D. Needless Tangential Detail
XIV. WRITING: WORD/PHRASE PROBLEMS TO WATCH FOR
A. Legalese/Bureaucratese
B. Nominalization
C. Long Synonyms for Short Phrases (or for Single Words)
D. Appendix I
E. Misplaced Attempts at Dignity
F. Unnecessary Abstractions
G. Passive Voice
H. Simple Word Choice Mistakes
I. Inattentiveness to the Literal Meaning of a Word
J. Errors Obscured by Intervening Words
K. Inattentiveness to How Words Are Normally Used
L. Failing to Listen to Your Doubts
M. Using Needlessly Fancy Words
N. Tip: Read a Usage Guide
O. Clichés
P. Figurative Phrases
1. Overrelying on the figure of speech instead of on a substantive argument
2. Forgetting the literal meaning of the figurative phrase
3. Misusing the figurative phrase
4. Being tempted into using a figurative phrase that isn't exactly right
Q. Cultural Allusions (High Culture or Pop Culture)
R. Abbreviations
XV. WRITING: RHETORICAL PROBLEMS TO WATCH FOR
A. Unduly Harsh Criticism
B. Personalized Criticism
C. Caricatured Criticism
XVI. EDITING: THREE EXERCISES
A. Basic Editing
B. Editing for Concreteness
XVII. USING EVIDENCE CORRECTLY
A. Read, Quote, and Cite the Original Source
1. Legal evidence
2. Historical, economic, or scientific evidence
3. Newspapers
4. Transcripts
5. Web sites
6. Wikipedia
7. Avoid falling into others' bad habits
B. Check the Studies on Which You Rely
C. Compromise Wisely
D. Be Careful with the Terms You Use
1. Avoid false synonyms
2. Include all necessary qualifiers
3. Use precise terms rather than vague ones
E. Try To Avoid Foreseeable Misunderstandings
F. Understand Your Source
G. Handle Survey Evidence Correctly
1. What do surveys measure?
2. Errors in generalizing from the respondents to a broader group
3. Errors in generalizing from the question being asked
4. Errors caused by ignoring information from the same survey
5. Respondents giving incorrect answers to pollsters
6. An exercise
H. Be Explicit About Your Assumptions
1. Inferring from correlation to causation
2. Extrapolating across places, times, or populations
3. Inferring from one variable to another
4. A summary plus an exercise
I. Make Sure Your Comparisons Make Sense
1. Consider alternative explanations for disparities
2. Make sure that cost/benefit comparisons sensibly quantify costs and benefits
3. Say how many cases the comparison is based on, and how small changes in selection
may change the result
4. Make sure your comparison at least shows correlation, even before you worry about
whether it shows causation
5. Beware of “10% of all Xs are responsible for 25% of all Ys” comparisons
J. A Source–Checking Exercise
K. Summary
XVIII. WRITING AND RESEARCHING: TIMELINE AND SUMMARY
A. Budgeting Your Time
B. Summary
1. Choose a topic
2. Make a claim
3. Write a first draft
4. Edit
5. Publish and publicize
6. Think about your next article
XIX. A SAMPLE HIGHLY SUCCESSFUL STUDENT ARTICLE
XX. TURNING PRACTICAL WORK INTO ARTICLES
A. The Big Picture
B. Extract
C. Deepen
1. Question existing law
2. Take counterarguments seriously
3. Reflect on your initial goal
D. Broaden
E. Connect
XXI. WRITING SEMINAR TERM PAPERS