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Thesis Writing for Law Students

Prof. Gary ChodorowBFSU 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?

1. Implicitly directed to legislative, executive, and/or judicial decision makers.

2. 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

What Is Scholarly Writing?

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Differences Between Scholarly Writing & “Practical” Writing

1. Audience: Primary audience is academicians and interested legal readers (not a judge or client or supervising attorney).

2. 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”

1. Same analytical skills: e.g., analyzing statutes, analyzing cases, using facts, analogy, synthesis.

2. Same writing skills: e.g., CRuPAC, paragraphing, citations, quotations, grammar, usage, punctuation, style.

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• Sir Isaac Newton modestly noted in a letter to Robert Hooke, "If I have seen further [than you and Descartes] it is by standing upon the shoulders of Giants."

• Attribution FNs acknowledge that legal scholars are linked together in their search for justice.

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What Makes Scholarly Legal Writing Good?

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

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What Makes Scholarly Writing Good? (cont’d)

2. Comprehensive—Provides sufficient background material to enable any law-school-educated person to understand and evaluate the author’s thesis.

3. Correct—The factual and descriptive material must be accurate.

4. Logical—The presentation must be well reasoned and well organized.

5. 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

1. Case cruncher2. Law reform article3. Legislative note4. Interdisciplinary article5. Theory-fitting article6. On legal profession, legal language, legal argument, or

legal education7. Continuing a pre-existing scholarly debate8. Legal history9. Comparative law10. Empirical research

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Format of Scholarly Writing

I. Introduction:• Plainly states your claim (a.k.a. thesis)=

your original analysis of the legal problem & proposed solution.

• Roadmap.

II. Background (factual & legal)

III. Analysis

IV. Conclusion

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Format (cont’d): Extensive Footnotes

Three functions:

1. Authority.

2. Attribution.

3. Textual footnotes.

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THE PROCESS OF SCHOLARLY WRITING

See handout

The Process of Scholarly Writing

Inspiration: Choosing a Subject & Developing a Claim

1. Choose and narrow your Subject

2. 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…

1. Legal writing competition topics*

2. Newspapers & legal newspapers

3. Westlaw Highlights & Lexis Hot Topics*

4. Annual survey issues published in many law reviews

5. Editors’ notes in casebooks

6. Law review articles mention related unresolved issues in the conclusion or in footnotes

7. Law blogs

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NARROW YOUR SUBJECT

Think narrow & deep, not broad & shallow

Why?1. To be original: So much has already been

written that comments on general trends or overviews of entire areas of law are usually redundant.

2. 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:

1. How can the subject be defined?

2. Is this a new subject?

3. Can the subject be divided into parts or aspects?

4. Can the parts be grouped in any way?

5. Are there analogous subjects?’

6. What are the advantages of this subject or aspect?

7. What are the defects in this subject or aspect?

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Ask a series of questions (cont’d):

8. What other disciplines deal with the subject and to what end?

9. Is there controversy concerning terminology?

10. Are there disputes concerning theory?

11. Is a definitive solution possible?

12. What future events might affect the subject?

13. Who is affected?

14. Is the subject affected by political or public pressure or vested interest?

15. 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

1. 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)

2. Important = not trivial, not obvious, useful.

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

4. Sound

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Find Your Claim by a Critical Reading of the Literature on Your

SubjectAsk questions as you read:1. What is the text’s thesis? 2. What are the problems the author

identifies? (Bias? Over-simplified? Are there other ways to characterize the problem?)

3. Are the facts presented accurately? Does the author characterize authority properly?

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4. Is the author’s reasoning clear and logical? (Does the author have an unstated reason for his position? Could other arguments be made?)

5. Does the author make questionable assumptions?

6. Are the author’s conclusions justified by the evidence? What other conclusions could be reached?

7. Does the author respond to potential counter-analyses?

8. If the author’s solution is adopted, what are the likely consequences?

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Argument from Precedent:

Counter-Argument:

Precedent must be followed; the material facts are identical.

• The material facts are different.

• Precedent should be overruled.

Precedent should be extended from an analogous situation.

The situation is not sufficiently analogous

There are two competing lines of precedent. Line A is better.

Line B is better.

Read for Argument Type:

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Interpretive Argument: Counter-Argument:

The plain meaning of the statute should be applied.

• The statute is ambiguous.

• The plain meaning conflicts with legislative intent or creates an absurd result.

• The language must be read in context.

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Normative Argument: Counter-Argument:

Morality requires this result.

The result is not moral.

Good social policy requires this result.

• Society will not benefit.

• The harm will outweigh the benefit.

Economic concerns support this result.

Economic concerns do not support this result.

Justice between the parties justifies this result.

Justice between the parties requires the opposite result.

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Institutional Argument: Counter-Argument:

Courts are best-equipped to make this type of decision.

No, the legislature is.

This is an area where the state is free to make law.

Federal law preempts state law.

This rule would “open the floodgates”

• Few litigants could invoke this rule.

• Gates already open.• There can’t be too much

justice.

Courts/juries have difficulty with this vague standard.

Courts/juries use standards like this all the time.

This is a bright-line rule, easy to apply.

• The rule is inflexible.• Draw the line elsewhere.

This rule creates a “slippery slope.”

The rule is narrow and precise.

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Read for Jurisprudence: imagine how different approaches would affect the outcome:1. Law and Economics2. Formalism3. Legal Realism4. Legal Process5. Fundamental Rights6. Critical Legal Studies7. 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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Reading JournalSample

Summary of important parts of source with pincites.

Your reactions from critically reading the text, plus your questions and ideas for your thesis

. . . . . . . . . . . .

. . . . . . . . . . . .

Citation to source in Bluebook format

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Tips for Your Reading Journal

a. In your summary of the source, use quotation marks for 7+ words from the author or for memorable language. (Helps avoid accidental plagiarism).

b. Arrange your reading journal entries by type of source (e.g., statutes, cases, law reviews) or issue.

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Class 2

• Inspiration: Choosing a Subject & Developing a Claim (cont’d)

• Initial Proposal

• Research Strategy

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Inspiration: Choosing a Subject & Developing a Claim (cont’d)

Last Week:• Choose and narrow your Subject • Find a Claim

This Week:• Test Your Proposed Solution for Soundness• Preemption Check to Ensure Originality

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What Makes a Proposed Solution “Sound”?

1. Specific, not “mushy”

2. Discuss both the substance and procedure of your proposed solution

3. Consider the political feasibility of your proposed solution

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TEST YOUR PROPOSED SOLUTION FOR

SOUNDNESS

1. Develop a “test suite” of hypotheticals to analyze the soundness of your proposed solution.

Example: You propose a statute requiring eviction of tenants in publicly subsidized housing if “the tenant or a guest engages in any drug-related activity in the apartment.”

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Hypothetical A:

Old lady evicted b/c her grandson smoked marijuana in the apt. She was unconscious in hospital at time so couldn’t have known.

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Hypothetical B:

Conscientious mother finds out her son is using drugs. Does everything possible to make him stop—call police, get drug counseling, confronts him, etc.

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Hypothetical C:

Man suspects his sister, who lives with him, sells drugs from the apt. He doesn’t want to get involved, so every day, he stays in his room.

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TEST YOUR PROPOSED SOLUTION FOR SOUNDNESS (cont’d)

2. Use “critical reading” techniques to analyze your own claim.

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PREEMPTION CHECK TO ENSURE ORIGINALITY

• Look at the articles, books, and cases on your subject to make certain nobody else has already given thorough and thoughtful treatment to the claim you intend to make.

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Initial Proposal

• State your claim

• Describe the existing commentary

• Statement of originality

• Mentor

• Progress report

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1.Your Claim:

Hazardous waste dumps are disproportionately located in neighborhoods occupied by racial minorities. Under current law, there is no feasible way for affected minorities to sue for racial discrimination. The reason is that the constitutional doctrine of equal protection requires proof that the defendant’s action was taken with intent to discriminate on the basis of race. [Cite case]. However, in decisions regarding the location of hazardous waste dumps, usually there is no racist intent or such intent is exceedingly difficult to prove. To provide relief to affected minorities, a federal statute should be enacted that allows plaintiffs to prevail on a claim of discrimination either by showing racist intent in the decision of the site for a hazardous waste dump or by showing that there is already a disproportionate number of hazardous waste dumps in the proposed location.

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2. Describe the Existing Commentary:

a. Commission for Racial Justice, United Church of Christ, Toxic Wastes and Race in the United States … : This report describes how minorities are disproportionately affected by toxic waste.

b. Target of Toxins: Poor communities charge 'environmental racism,' USA Today … : This story covers a national summit on the topic of environmental racism.

c. Lawrence S. Bacow & James R. Milkey, Overcoming Local Opposition to Hazardous Waste Facilities: The Massachusetts Approach, 6 Har. Envtl. L. Rev. …: This article proposes a method to compensate neighborhoods for the harm done to them when toxic waste dumps are located there.

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3. Statement of Originality

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My claim is original because it proposes a novel solution—a statutory amendment—to the problem of disproportionately siting toxic waste dumps in minority neighborhoods.

My claim is distinguishable from [cite law review article] that discusses how constitutional equal protection claims may be a remedy for minority neighborhoods where toxic dumps are located.

My claim is also different than the claim made in Bacow and James R. Milkey’s article that any neighborhood where a toxic waste dump is cited should be compensated.

My claim does use as background the facts found in several publications, such as the USA Today story and the United Church of Christ report, that discuss the problem of environmental racism.

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4. Mentor

5. Progress report (discussed below)

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Research Strategy

Gathering Info

Assimilating Info

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Gathering Info

1. Get the Big Picture2. Find a Research Guide3. Be Thorough with the Details4. Be Accurate5. Stay Current6. Ask Someone7. Be a Savvy Internet User8. Factual Research is Key9. When Do I Stop?

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1. Get the Big Picture

• Once you’ve identified your general topic, read a short book on it—e.g., Foundation’s Concepts and Insights, West’s Nutshells, Matthew Bender’s Understanding series.

• Goals:– Understand the field.– Be able to draw on principles that arise in

areas within the field unrelated to your topic.

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• Also, early on review a treatise in the area.– Find it in the library, on Lexis, or in Google

Books.

• Then look at law review articles, other secondary sources. They will give you a good guide to the statutes, cases, and other primary authorities.

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2. Find a Research Guide• aka “Pathfinder”

• On many U.S. law school law libraries websites . E.g.: Seattle University School of Law’s “Starting Points Research Guides”: http://www.law.seattleu.edu/library/research/startingpoints?static-page=yes

• Google search: “research guide” and “administrative law”

• LLRX.com “International Law Guides” and “Pathfinders”

• “Globalex” (NYU): International, comparative, and foreign research guides.

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3. Be Thorough with the Details

• Goals:– Be thorough to be comprehensive and accurate.– Be thorough to be certain your claim hasn’t been

preempted.

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• “Legal Resource Index”: Index of 900 law journals, law newspapers, and specialty publications in the U.S. and Britain. Covers 1977-now. Updated weekly.

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Sample from Legal Research Index

AUTH: Perkins, JaredTITL: Habeas corpus in the war against terrorism:

citizen enemy combatantsREFR: BYU Journal of Public Law 19 2 437-471

(FALL, 2005)LCIT: Hamdi v. Rumsfeld 124 S. Ct. 2633 (2004) TERM: War on Terrorism; Habeas corpus;

Detention of persons Combatants and noncombatants

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• Look at the Social Science Research Network (www.ssrn.com) for unpublished articles, i.e. “working papers.”

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4. Be Accurate

Compare: Journalism—Credibility is a journalist’s most important asset, and accuracy is the best way to protect it. To ensure accuracy, reporters must check and double-check all of the information they collect for a news story.

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5. Stay Current

1. Look for the most recent article or case first

2. “Shepardize”

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“Shepardizing”

Shepard’s Citations allows a researcher to:

1. Check whether an article in LEXIS has been cited in any further articles or cases.

2. More…

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Sample Shepard’s Results

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6. Ask Someone

• To find the recent article or case, ask a professor, lawyer, or judge who works in the area.

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7. Be a Savvy Internet User

• When using search engines (Google, Baidu, etc.), remember: All information is not created equal—websites don’t necessarily have an editing process like treatises and law reviews.

• Learn the rules of search (e.g., how to limit search to .edu or .gov sites, search for exact phrase, search for two terms, exclude a term, etc.)

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Compare: Journalism: Whatever sources you use to research the background of a story, it’s critical to consider the validity and the credibility of the source:1. How does the source know what he knows?2. How can I confirm this information through

other sources?3. How representative is the source’s point of

view?4. Has the source been reliable and credible in

the past?5. What is the source’s motive for providing the

information?

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8. Factual Research is Key

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9. When Do I Stop?

Lots of factors and no easy answers...but...

• When the costs outweigh the benefits

• When you keep finding the same sources

• When you find the answer

• When you run out of time

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Class 3

Research Strategy (cont’d)

Click on the speaker icon in the upper left corner of each slide to listen to the lecture.

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Review: Gathering Info

1. Get the Big Picture2. Find a Research Guide3. Be Thorough with the Details4. Be Accurate5. Stay Current6. Ask Someone7. Be a Savvy Internet User8. When Do I Stop?

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Assimilating Info

1. Pre-reading

2. Keep a reading journal (previously discussed)

3. Keep copies of sources.

4. Keep a progress report

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1. Pre-Reading

• Read 1st paragraph, table of contents (or headings), last paragraph.

• Then focus on those parts relevant to you.

• Skim or skip other parts.

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2. Keep a Reading Journal

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3. Keep Copies

Keep copies of any sources you will cite so you can look back at them.

Don’t need copies of whole book or article, only relevant sections.

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4. Keep a Progress Report

What Is It?

See the

“Progress Report Instructions and Sample”

on the class website.

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What Research Progress Is Expected

in Your Initial Proposal?

See the

Initial Proposal assignment

on the class website.

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Questions? Call me or send an email or post a

question on the class website.

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Class 4

Researching U.S. Law

See PPTs:

U.S. Law--Sources & Hierarchy

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Interviews

1. Setting up the interview isn’t always easy. People may not want to talk with a law student, especially if the story is controversial.

2. Interviews can be in-person or by phone.3. When dealing with public officials, start from the

premise that the public has a right to know what officials are doing.

4. How to deal with excuses:a. Thy don’t have time.b. They’re afraid because they think the story will make them

look bad.c. They don’t know what to say.d. They are hard to reach.

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Class 5

Researching Chinese Law

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How to PRC Legal Research

By Prof. Li Xiaohuiand Prof. Wang Wenhua

Beijing Foreign Studies Univ.Nov. 2006

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• 一、法律渊源（ Sources of Law in China)

• 二、怎样寻找法律文献资源(How to find the legal resources)

• 三、如何确认法律渊源的效力How to check the validity of a law

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一、法律渊源（ Sources of Law in China)

1. 首要渊源或正式渊源（ Primary sources of law ）• 制定法 Code law (statutes) • 法律解释 Legal interpretation• 条约和国际惯例 International treaties and customs

2. 次要渊源或非正式渊源（ Secondary sources of law)• 判例 Cases• 学理 Doctrine• 习惯法 Customary law• 法律原则 Legal principles

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1. 首要渊源或正式渊源（ Primary sources of law ）

• 制定法 Code law (statute law)

宪法 Constitution——NPC

法律 Law(basic laws and other laws)—NPC 、 SCNPC

Basic laws: law of civil procedure, law of criminal procedure, general rules of civil law, criminal law ……

Other laws: securities law, trademark law, labor law, grassland law ……

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行政法规 Administrative regulations—State Council

国务院关于股份有限公司境内上市外资股的规定 (Regulations of the State Council on Foreign Capital Stocks Listed in China by Joint-stock Companies---1995-12-25

  国务院关于进一步整顿和规范期货市场的通知 (Circular of the State Council Concerning the Further Consolidation and Standardization of Futures Markets---1998-8-1

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部门规章 ministerial rules—28 ministries and commissions

• 汽车金融公司管理办法 (Administrative Rules Governing the Auto Financing Company--2003-10-3)

• 中华人民共和国中外合作办学条例(Regulations of the People’s Republic of China on Chinese Foreign Cooperation in Running Schools –2003-3-1)

• 中华人民共和国商标法实施条例 (Implementing Regulations of the Trademark Law of the People's Republic of China--2002-8-3)

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地方性法规 Local regulations—Legislatures of provinces and relatively large cities

上海市村民委员会选举办法 (Procedures of Shanghai Municipality on the Election of the Villagers' Committee---1999-6-1 )

地方性规章 local rules—Governments of provinces and relatively large cities

上海市营业性危险货物道路运输管理办法(Procedures of Shanghai Municipality on the Administration of Road Transportation of Dangerous Goods of a Business Nature---2003-2-8)

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• 民族自治地方的自治条例和单行条例Autonomous regulations －Legislatures of autonomous

• 经济特区法规和规章 Special economic zone regulations & rules—Legislatures and governments of SEZs

• 军事法规和规章 Military regulations and rules － Central Military Commission & its departments

• 特别行政区立法 Special administration region laws &regulations － SAR legislature &government

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法律解释 Legal interpretation 立法解释 Legislative Interpretation － NPC /

SCNPA

全国人民代表大会常务委员会关于《中华人民共和国国籍法》在澳门特别行政区实施的几个问题的解释 (Interpretations of the Standing Committee of the National People’s Congress Concerning Questions on the Implementation of the Nationality Law of the People’s Republic of China in the Macao Special Administrative Region---1998-12-29)

全国人民代表大会常务委员会关于补选出缺的香港特别行政区第九届全国人民代表大会代表的决定 (Decision of the Standing Committee of the National People’s Congress on by-Election to Fill the Vacancies of Delegates to the 9th National People’s Congress from the Hong Kong Special Administrative Region---1998-10-26)

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行政解释 administrative interpretation—Administrative departments that have the right to make laws

司法解释 judicial interpretation — SPC/SPP

关于适用《中华人民共和国合同法》若干问题的解释（一） (The Supreme People's Court's Interpretations of Certain Issues Concerning the Application of The Contract Law---1999-12-1)

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条约和国际惯例 international treaties and customs

• 中华人民共和国政府与美利坚合众国政府关于在中国实施美国志愿者项目的协议 (AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA CONCERNING THE UNITED STATES VOLUNTEER PROGRAM IN CHINA---1998-6-29)

• 装运前检验协定 (Agreement on Pre-shipment Inspection---1994-4-15)

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2. 次要渊源或非正式渊源（ Secondary Authority)

• 判例 Cases organized and published by the Supreme court and the Supreme People’s Procuratorate

• 学理 Doctrine in academic articles and books

• 习惯法 Customary law

• 法律原则 Legal principles

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二、怎样寻找法律文献资源(How to find legal

resources)• 1.Code law

书籍 Through books or journals

• 年鉴 year book （ There are more than 20 yearbooks about law in China today, such as 《中国法律年鉴》 Law yearbook of China － English version ，《人民法院年鉴》 Yearbook of the People’s Courts ）

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• Example: 《中国法律年鉴》 Law Yearbook of China （ 2003—2004 ） reflects the situation of 2003. Its Special Record includes work reports from SCNPC /government/SPC/SPP, the White books and other important documents published by state organs. It includes all laws enacted by SPC and SCSPC in 2002—2003 ， all important administrative regulations and rules ， the catalog of ministerial rules, local regulations and rules ， international treaties which China entered into. The part of Development of Legal Studies reflects the fruits of some legal branches studies. You can find some statistical data and an index of law books and journals in it too.

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• 法规汇编 legislative seriesThere are all kinds of legislative series in bookstores ,such as Chinese legislative series (2004),Labor Law and regulations……

• 手册 / 指南 handbook /guide bookSimilar to legislative series

• Some guide book for judges to deal with special cases may be useful, such as Guide book for Civil Litigation 民事诉讼办案手册 .

• 公报 gazette• 中华人民共和国最高人民检察院公报》 Communique of

the Supreme People’s Procuratorate of the People’s Republic of China

• 中 华 人 民 共 和 国 最 高 人 民 法 院 公 报 》 Gazette of the Supreme People’s Court of the People’s Republic of China

• 中华人民共和国全国人民代表大会常委会公报》 Gazette of the SNPC of the PRC

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• 电子信息手段 Resources Online and CD-Rom

• 光盘数据库 CD-Rom database 中国法律法规数据库

(Data Base of Chinese Law and Regulation)

• 网络数据库 database on website 中国法律资源库 Legal Database

http://www.lawyer.ln.cn/ 中国政府法制信息网 China Legislative information

network system http://www.chinalaw.gov.cn/ 北大法律信息网 Peking University law information www.chinaLawinfo.com (link on BFSU library website) 中国咨询行 China information Bank www.bjinfobank.com trial period on BFSU library

website)

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• 中国人大网 http://www.npc.gov.cn

• You can get newest and entire information of legislation in China. Some documents on the website are about legislative history. And through the section on “Laws and Regulations of China,” you can get more documents from E-mail.

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2. Cases 判例

• 中 华 人 民 共 和 国 最 高 人 民 检 察 院 公 报 》 Communique of the Supreme People’s Procuratorate of the People’s republic of China

• 中华人民共和国最高人民法院公报》 Gazette of the Supreme People’s Court of the People’s Republic of China

• 中 华 人 民 共 和 国 全 国 人 民 代 表 大 会 常 委 会 公 报 》 Gazette of the SNPC of the PRC

• 或者适用法律数据库 or use legal databases

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3. 学理 Doctrine

Through monographs 专著 by famous professors

or books by reputable publishing houses, such as 法律出版社 Law Press, 中国政法大学出版社 the Press of China Politics and law University.

《中国图书分类法细目》 (the Classification of books of China)

Ｄ 政治、法律（ D0-D9; D8 外交、国际关系D9 法律 )

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• Academic Journals 法学杂志目前中国共有中文法律类核心期刊２１种 About 21 core law journals in China today

• 中外法学 Peking University Law Review

• 法学评论 Law Review

•    法学家 Jurists Review

法学研究 Chinese Journal of Law

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• 期刊查阅方法：• 全国报刊索引》哲学社会科学版

The Index of National newspapers and journals Philosophy and Social Science Version － a monthly edited and published by Shanghai Library )

• 报刊资料索引》（ the Yearbook of Index of newspapers and journals published in Renmin University Copy Resources)

• 人大复印资料》 (Renmin University Copy Resources)

• 中国期刊网• http://www.chinajournal.net.cn （ Link on BFSU

Library website)

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四、怎样展开法律研究(How to check the validity of

laws

• 1. 新法优于旧法 new laws have precedence over old ones

• 2. 特别法优于普通法 particular laws have precedence over general ones

• 3. 上位法优于下位法 According to the hierarchy of law

• 4. 正式渊源优于非正式渊源 Primary sources of law have precedence over secondary authorities

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Class 6

Format of the Thesis,

Outlining

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Outlining Assignment

See Assignment

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Format of the Thesis

Four-part structure:

• Introduction

• Background (factual & legal)

• Analysis

• Conclusion

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Introduction

Purposes:

1. Persuade reader to read on.

2. To provide a summary for the busy reader who won’t read on.

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Format

1. State claim—describing the legal problem & proposed legal solution. (Also give minimal factual & legal background info so your claim is understandable & compelling.

2. Give concrete example or anecdote.

3. Explain why your claim is original, important, timely.

4. Roadmap to the paper.

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Part II of this Article provides a background for the topic, defining plagiarism, discussing the common-place nature of the offense, and giving an overview of how plagiarism is handled in various academic and professional contexts. Part III sets forth the framework of a typical plagiarism investigation, using a plagiarism investigation at Northern Kentucky University as an example. Part IV discusses the why the courts’ de novo standard of review of plagiarism cases is problematic. Part V argues for limited judicial review of administrative findings of plagiarism.

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BackgroundPurpose: Provide sufficient factual and legal

background for any law-educated reader to understand your analysis.

Cover both:1. Factual background: From newspapers, studies,

reports, government statistics, etc.2. Law:

a. No history lesson unless important to your claim.

b. When describing trends in the courts or a common law, synthesize--don’t summarize cases.

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Comparison: Like a journalist, in writing the factual background, consider the “5 W’s and one H”: who, what, where, when, why, and how.

Who:1. Who is involved in this story?2. Who is affected by it?3. Who is missing from this story?4. Who is in conflict in this story?5. Who else should I talk to about this?

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What:

1. What happened?

2. What is the point of this story?

3. What does the reader need to know to understand this story?

4. What surprised me?

5. What is the most important single fact I learned?

6. What is the history here? What happens next?

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Where:

1. Where did this happen?

2. Where else should I go to get the full story?

When:

1. When did this happen?

2. When did the turning points occur in this story?

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Why:

1. Why is this happening? Is it an isolated case or part of a trend?

2. Why are people behaving the way they are? What are their motives?

3. Why does this story matter? Why should anyone read it?

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How:

1. How did this happen?

2. How will things be different because of what has happened?

3. How will this story help the reader?

4. How did I get this information? Is the attribution clear?

5. How would someone describe this story to a friend?

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Analysis

Prove your claim:

1. Analysis of your original claim must be “meat” of your thesis.

2. Proof means a presentation of factual evidence and persuasive legal analysis.

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Problem-Solution Pattern

1. Describe legal problem.

2. Describe proposed solution.

3. Demonstrate how proposed solution solves problem.

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1. Describe the Legal Problem:

a. E.g., ambiguity or gap in law, law out of date, problem with legal institution (e.g., courts not independent because depend on legislature for funding, law schools don’t teach sufficient practical lawyering skills), etc.

b. Not mere description of factual problem laws designed to avoid (e.g., crime victims suffering; patents being infringed), but legal problem.

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c. Use examples from your test suite to illustrate the legal problem.

d. Use facts, studies, reports, your investigation to describe the legal problem

d. Cite those who think there’s no problem or define the problem differently. Give a counter-analysis.

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2. Describe the Proposed Solution. Be specific:

a. If the law should be changed, (i) explain specifically what the new law should say, (ii) explain the procedural rules necessary to make it work properly (e.g., evidentiary rules).

b. If changes to administration of the law are necessary, explain what agency should enforce it, what their responsibilities should be, how it should be funded.

c. If a jail sentence should be imposed, explain the sentencing range and what factors should determine where on the range any case lies.

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Analysis: Describe the Proposed Solution—Make sure the solution is tailored to the problem. E.g.:

• Problem: Many college students use credit cards irresponsibly, accumulating huge debts they are unable to repay by the time the graduate from college.

• Solution: Credit card companies need to be prohibited from distributing misleading promotional materials to students.

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Demonstrate how your proposal solves problem:

a. Advantages & disadvantages of your solution.

b. Compare your solutions to other solutions (from other scholars or from your own imagination).

c. Make all the appropriate argument types: arguments from precedent, interpretive arguments, normative arguments, institutional arguments. Answer the counter-analyses.

d. Consider what various schools of jurisprudence (e.g., law and economics, feminist jurisprudence, etc.) would/have said about the solution.

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e. Probe the broader context: What would/have other fields, such as history, sociology, economics, political science, etc., said about the proposed solution.

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Applying the proposed Act to the facts of East Bibb Twiggs Neighborhood Assn. v. Macon-Bibb County Planning & Zoning Commission illustrates how this proposed rule would work. In East Bibb Twiggs, the plaintiffs proved that the site would have a greater impact on the black population than on the white population. The plaintiffs introduced evidence that undesirable land uses have been located historically in black neighborhoods. Assuming that the evidence was persuasive and the court found that this community was overburdened by environmental hazards, the burden of proof would then shift to the Commission to establish "environmental necessity." The court would look at the impact of the site, consider the environmental suitability of alternative sites, and base its decision on elements of equity and safety.

e. Show how the solution would apply to examples from your test suite. E.g.:

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Don’t Ignore Adverse Authorities and Arguments

a. Acknowledge the adverse authority or argument.

b. Explain why it should be rejected = counter-analysis.

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Connect to Other Issues

Your Claim

Parallel AreaBroader Academic Debate

131

Conclusion

Parts:

• Summarize claim & important subsidiary conclusions. Keep it brief.

• May suggest areas for further research.

132

Questions?

133

Class 7

Footnotes and the Ethical Use of Borrowed

Materials

134

Remember to Buy Milk

135

The academic legal writer’s prayer:

Oh, Lord:

May my text be clear.

May my footnotes be many.

May my analysis be original.

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“Encountering [a FN] is like going downstairs to answer the doorbell while making love.”

-- Elizabeth Fajans and Mary R. Falk, Scholarly Writing for Law Students 98 (3d ed. 2005), quoting Noel Coward.

137

Why Use FNs in Scholarly Writing?

Three primary

functions:

• Authority.

• Attribution

• Textual FN to discuss marginal issues.

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Authority

You must include an authority footnote to support every proposition of law in your text except if you are making an original argument.

Example 1: Police must inform suspects in custody of their constitutional rights before questioning them.22

----------- 22 Miranda v. Arizona, 384 U.S. 436 (1966).

139

Example 2: Lower courts have taken different approaches to requiring Miranda warnings for subjects already in prison.22

-----------------------22 Compare Smith v. Texas, 123 F.3d 812 (2d Cir. 1988) (Miranda warnings required) with Sanchez v. Lawrence, 234 F.3d 567 (3d Cir. 1999) (Miranda warnings not required).

140

You must include an authority footnote to support every proposition of fact in your text.

Example: China has over twenty million privately-owned cars.24

----------

24China’s Car Culture, People’s Daily Online, Feb. 28, 2007, at http://www.peopledaily.com/12345.htm.

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Don’t quote the source “out of context” or otherwise create an inaccurate or misleading impression of the source you cite.

Bush campaign chairman: Kerry thinks that the war on terrorism is like a “nuisance.”

Kerry: ''We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance…. [W]e're never going to end [terrorism]…. But we're going to reduce it … to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life.''

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Choose authoritative authority:

Wrong: In the United States, “separation of investigation and adjudication” is required by the Administrative Procedure Act. Yang Tao, A Comparative Study of Administrative Law, 5 Modern L. Rev. 555, 556 (2005).

Actual Statute Doesn’t Use Those Words: The administrative law judge presiding over a hearing on the record must not be supervised by or responsible to “an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.” 5 U.S.C. 554(d) (2007).

What went wrong? Reliance on intermediate resources rather than on original source.

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AttributionExample: The best solution to the problem of whether prisoners have a right to Miranda warnings is to require them only for inmates upon whom official suspicion has focused.22

--------------22 Steve Finzio, Miranda’s Role in Prison Crimes, 59 U. Chi. L. Rev. 719 (1992).

Rationale: If you borrowed this idea from another author and paraphrased his article, you need a citation to give proper attribution.

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• Scholarly papers build upon & advance ongoing legal debates.

• So, reliance on existing scholarly commentary is common & expected.

• Attribution FNs acknowledge that.

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Even unintentional failure to

provide attribution

• Disrespects the author whose words or ideas you borrow.

• Misrepresents to reader that work is your own.

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Rules for Attribution

1. Provide a footnote for ANY borrowed language or ideas, whether quoted or paraphrased.

2. Introduce borrowed material with some reference to its source. E.g.: “One recent commentator points out that….”

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3. When you borrow 7 or more consecutive words, use quotation marks.

– Where the wording is distinctive, use quotation marks for even a single word.

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4. Put borrowed text of 50 words or more in an indented, single-spaced block quote (no quotation marks).

–Bluebook Rule 5.1.According to Professor Keller, who has emphasized blah blah

there is more to blah blah:

This view is shared by many from the law and economics and

blah school…..

Blah blah blah blah blah blah blah blah blah Blah blah blah blah blah blah blah blah blah Blah blah blah blah blah blah blah blah blah Blah blah blah blah blah blah blah blah blah12

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5. If you read Source A that cites Source B, then cite both.

For e.g., if you read this in an article by Yang Tao: The Administrative Procedure Act requires separation of investigation and adjudication functions.

Then check the original source (the statute) for yourself, and then cite to both: The Administrative Procedure Act generally prohibits supervision of an administrative law judge by an official involved in the agency’s investigation or prosecution functions.24

---------------------24 5 U.S.C. 554(d) (2007), discussed in Yang Tao, A Comparative Study of Administrative Law, 5 Modern L. Rev. 555, 559 (2005).

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Textual FNsExample: One federal court has taken the position that prisoners only have a right to counsel once an official criminal investigation has been initiated.22

--------22 State v. Bird, 323 F.2d 91 (S.D.N.Y. 1992). Spain also guarantees prisoner access to defense lawyers only after an official criminal investigation has been initiated. C.P. § 667.

Rationale: If you want to make a point of only marginal importance to your claim, you might put it in a textual FN.

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For example: 1. Provide an illustration of a point made

in the text.

2. Define a term used in the text.

3. Clarify or qualify an assertion made in the text.

4. Raise a potential complication.

5. Quote language paraphrased in the text.

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Hybrid: The Parenthetical

Example:

24 Smith v. Jones, 100 U.S. 97, 100 (1933) (examining the historical roots of the First Amendment’s free press clause).

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Introductory Signals(Bluebook Rule 1.2)

(in Citation & Quotation PPTs on lawandborder.com)

154

Signal ExercisesAfter Zhang was arrested, the New York News proceeded to publish his name.35

---------------------

35_____ Sam Waters, Investigation into the Zhang Jinzhu Traffic Accident, New York News, May 2, 1999, at 1, available at http://www.nynews.net/8080.htm.

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Some journalists argue that media should reveal local wrongdoing when it suits Party interests but remain silent if such revelations could threaten stability. 22

---------22 E.g., Lu, Escape, supra, note 128. _____ Yang, Public Opinion Supervision Versus “Stability” Work, supra, note 129 (mocking media restrictions for purposes of maintaining stability).

156

Although they lack legally prescribed roles, China’s mass work offices, in some respects, serve in a position similar to a state ombudsman in other nations—in particular in Scandinavia—with broad powers to investigate citizens’ complaints.43

-------------43 ____1 William Wade et al., Administrative Law: The Problem of Justice, 353–60 (1991) (discussing role of ombudsman in Sweden).

157

There has been significant criticism in China of the media’s continued close ties to the Party-state.22

-------------------------------------------22 _____ Chen Yuru, Jinyou Caifang Quan Shi Bugou De [Just Having the Right to Report Is Not Enough], Fazhi Ribao Wangluo Ban [Legal Daily Online], May 14, 2001, at http://www.legaldaily.com.cn/17551.htm (contending that media have grown from being exclusively propaganda instruments to organizations having a range of roles in society).

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See Handout—Fajans & Falk

Exercise 6.1

159

Class 8

Using Evidence Correctly

160

Feedback on the Thesis Outlines

Main points to focus on:

• Claim not yet clear.

• Originality not explained clearly.

• Shallow description of legal problem.

• Shallow description of proposed solution.

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1. Claim not yet clear.

• Legal Problem: Many college students use credit cards irresponsibly, accumulating huge debts they are unable to repay by the time the graduate from college.

• Solution: Credit card companies need to be prohibited from distributing misleading promotional materials to students.

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2. Originality not explained clearly.

• While scholars have analyzed the problems of X12 and Y13, this article is the first to analyze Z.

• While scholars have proposed X12 and Y13, this article is the first to propose Z.

• While scholars have analyzed the problem [solution] from the perspectives of X12 and Y12, this article is the first to analyze it from the perspective of Z.

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This claim is original because it covers both jurisprudence and practical levels with more detailed, practical, systematic plans for the establishment of system of “Victim-Offender Mediation.”

164

Using Evidence Correctly

Find the original source, rather than trusting

intermediate sources.

1. Legal sources

2. Be cautious about lawyers’ versions of history, economics, and other disciplines.

3. Websites.

165

The Xinfang system has led to an increase of mass petitions and political radicalism in recent years. According to a Chinese Academy of Social Sciences survey asking 632 Beijing petitioners what their reactions would be if they were not satisfied with the result of petitioning, 70.2% said they would organize the masses to negotiate directly with the government while 53.6% would do something to frighten the cadres.1

-------

1 Yu Jianrong, Xinfang zhidu diaocha ji gaige silu [A Survey of the Xinfang System and Thoughts on Reform], in 2005 Nian: Shehui Xingshi Fenxi Yu Yuce [2005 Analysis And Forecast On China’s Social Development] 212 (2005).

166

4. Newspapers• Journalists are usually generalists w/tight

deadlines.

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China Daily on negotiations for China to grant Approved Destination Status (ADS) to the U.S.. If a country lacks ADS, China forbids travel agencies from advertising tourism to those countries:

“To date China has signed ADS travel agreements with 86 countries and regions worldwide, including Germany, South Korea and United Kingdom, all of whom can now offer Chinese travelers tourism visas.”

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People’s Daily:

The ADS system simplifies visa application procedures for tourists. They can use ordinary passports to apply for tourist visas if they want to visit an approved country.

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China Daily again:

“The number of Chinese tourists visiting the U.S., however, has not [increased substantially]. The main reason is that a Chinese tourist can only visit the U.S. on a business visa.”

170

5. Check studies you rely on.• Read with “skeptical eye.”• Search for criticisms of the study.

171

Avoid false synonyms

In 1905, New York outlawed possession of guns by the foreign born.12

---------12 N.Y. Consolidated Laws § 1987.

172

Include all necessary qualifiers

Don’t write: The law prohibits shouting “fire” in a crowded theater and causing a panic.

If you mean: The law prohibits falsely shouting fire in a crowded theater and causing a panic.

173

Use precise terms

Almost 1,000 children die each year due to unintentional gunshot wounds.

174

Family violence seldom has witnesses. Also, the victims always neglect evidence collection.

175

No state organ has set up a compensation fund, so when the state organ fulfills its compensatory obligations, it has to appeal to the local financial department for the compensatory expenses.13

----------------------- 13 Rules on Administration of State Compensation Fees, Article 7

176

Along with the success of the massively multiplayer role-playing gaming industry in Asia, online gaming-related crimes have grown at an amazing rate. Most of the criminal cases are related to virtual properties since markets have developed for the virtual properties giving them real world values.12 -------------12 [citing to a law review article focusing solely on U.S. law].

177

Avoid terms likely to mislead

Guns produce a toll of 35,000 killed every year and hundreds of thousands more raped, robbed, and assaulted in firearms-related violence.

178

Be Wary of Surveys That Don’t Use Random Samples

a. Biased samples.

b. Convenience samples.

c. Self-selected samples.

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Good surveys:

a. Random sample

b. Typically have response rates of 70% or higher.

c. Have a large enough number of respondents to yield a small margin of error. (1000 respondents has a 3% margin; 100 has a 10% margin).

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Questions to Ask about Surveys1. Who did the poll? Is this a legitimate organization?

Who else do they poll for?2. Who paid for the poll? What is their political agenda?3. How many people were interviewed?4. How were they selected?5. What kinds of people were interviewed?6. Are the results based on answers of all or some of

those polled?7. When was the poll conducted?8. How was the poll conducted?9. What were the questions?10. What was the margin of error? What were the raw

numbers?11. Are the results different from other polls and, if so,

why?

181

Avoid errors in generalizing from the question being asked in the survey

Survey question: The First Amendment says: “Congress shall make no law respecting establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech….” Do you agree or disagree with the following statement: The First Amendment goes too far in the rights it guarantees.

Survey result: 90% agree.

182

Check surveys for assumptions, and make your own assumptions explicit when you rely on surveys:

a. Generalization over time and space.

183

b. Causation versus correlation.

“There are more guns in the U.S. than in the U.K. There is more murder in the U.S. than in the U.K. Thus, prevalence of guns causes increase in murder.”

“There are more guns in rural U.S. than in urban U.S. There is more murder in urban U.S. Thus, prevalence of guns causes decrease in murder.”

184

d. Generalizations from the measured variable to the important variable.

Survey: increase in burglary arrests.

Conclusion: increase in burglary.

185

Example:

Survey: When U.K. enacted this e-commerce tax law in 1995, compliance among e-businesses rose 25%.

Conclusion: China should enact the same law.

What assumptions have you made?

186

Source-Checking Exercise

Volokh p. 179-180.

187

Class 9

Choosing a Memorable Title

More Organization Tips

Writing with Style

188

Another Look at the Academic Legal Writing Timeline

• Writing as communicating your ideas to the reader.

189

190

Writing is easy. You just sit at a typewriter until blood appears on your forehead.

–Red Smith

191

192

• Her fragrant false statements amount to perjury.

• The contract is effective on the date of singing.

193

Choosing a Memorable Title

• Be descriptive—so researchers can determine the topic at a glance.

• Be intriguing—motivate browsers to read further.

• Memorable—so attention-grabbing that it springs to mind years later.

194

• From Outlaws to In-Laws: Issues Surrounding the Evolving Status of Lesbian and Gay Individuals

• "She's Got Bette Davis's Eyes": Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clauses

• An Obituary of the Federal Estate Tax

195

More Organization Tips

1. Paragraphing

a. Use a thesis or topic sentence.

b. Give each paragraph a unified purpose.

c. Sentences should have a logical sequence.

d. Break up overly long paragraphs.

e. Rewrite overly short paragraphs.

196

2. Headings & subheadings

3. More roadmaps

197

III. XINFANG REGULATIONS

This Part introduces the general principles of xinfang regulations. This Part also seeks to illustrate two broader points. First, the xinfang system is a multipurpose governance tool. Providing fair hearings for individual citizen complaints in acocrdance with established laws and regulations is but one of many aims. Second, xinfang channels for individual citizen complains significantly overlap with formal legal channels.

198

4. Show relationships between ideas,

sentences, and paragraphs.

a. Transitions

b. Dovetailing

c. Parallel sentence structure

199

Other regulations also impose obligations on media to report truthfully and correct mistakes. For print media, in the event of incorrect or unfair reporting that causes harm, the regulations obligate the media to publicly correct such mistakes, eliminate their effects, and assume civil liability.43 For newspapers and magazines in particular, the regulations allow parties harmed by incorrect or unfair reporting either to draft their own replies or to require the media to do so.44 For broadcast media, by contrast, regulations require true and fair reporting but do not impose an obligation to correct mistakes or grant a right of reply.45

200

Other regulations also impose obligations on media to report truthfully and correct mistakes. For print media, in the event of incorrect or unfair reporting that causes harm, the regulations obligate the media to publicly correct such mistakes, eliminate their effects, and assume civil liability.43 For newspapers and magazines in particular, the regulations allow parties harmed by incorrect or unfair reporting either to draft their own replies or to require the media to do so.44 For broadcast media, by contrast, regulations require true and fair reporting but do not impose an obligation to correct mistakes or grant a right of reply.45

201

Writing with Style

Use the

“Checklist for Grammar, Style,

Usage, and Punctuation”

to fix the following sentences.

202

A. Each of the students are responsible for completing homework on time.

B. The bittersweet flavor of youth – its trials, its joys, its adventures, its challenges – are not soon forgotten.

C. Either the pork or the chicken are fine.

203

A. The court followed this rule when they decided a similar case two years later.

B. The corporation stated that using machines would make their production more efficient.

204

A. In the court’s written decision, it was said that he would have to leave the United States.

B. Administrative monopoly is a special product under Chinese society. It means the government or the ministries under it abuse the administrative power to restrict proprietors to into certain market.

205

The arrest of the suspect occurred during the landing of the plane.

206

The bill was enacted following a bitter debate between the pro-life and pro-choice factions within the legislature.

207

A. The Supreme Court has given no indication whether the right to silence includes suspects’ refusal to provide identification.

B. The sellers made a decision to accept the buyer’s offer.

208

A. The defendant had a scar on his left cheek that resembled a crescent moon.

B. While driving on Greenwood Avenue, a tree began to fall toward Mr. Smith’s car.

C. Being beyond any doubt insane, the court ordered the patient’s transfer to a state mental hospital.

209

A. Ethel told Lucy that her pie was wonderful.

B. The files arranged by the temporary workers were out of order, so we sent them back to the main office.

210

A. Not only was he a good swimmer but also an excellent runner.

B. Reasonable efforts to maintain secrecy include putting the recipe in a locked office, storing parts of the recipe in separate locations, and confidentiality agreements.

211

A. The most commonly litigated issues before the Court this year were abortion, the commerce clause, and capital punishment. Capital punishment was the issue that divided the Court most bitterly.

B. The Court’s last decision of the term was Reid v. Smith. The issue, which divided the court most bitterly, was capital punishment.

212

A. The committee decides whom should be nominated for a judgeship.

B. The defendant, who they knew, was convicted of fraud.

C. Is there no one whom they can trust?

213

A. At the time when I met the defendant, he was single.

B. The problem with respect to the check is its date.

C. In order to shorten the document, I deleted an argument.

214

A. It is also relevant that defendant is a widower.

B. It would seem that proving fraud must be difficult.

C. The fact that the defendant was young might have influenced the jury.

D. It is clear that Smith misrepresented facts on the witness stand.

215

After climbing the stairs to his apartment, he was rather tired. His physical condition had somewhat deteriorated over the years.

216

A lawyer must not fail to keep a client’s secret where the lawyer has not received the client’s permission to disclose the secret.

217

Legal argot found in and about a lawyer’s writing has heretofore caused, resulted in, and led to grievous injury with respect to said lawyer’s readers, clients, and/or repute, to wit: by compelling the aforesaid readers to suffer confusion and/or consternation at the expense of the aforementioned clients and consequently rendering said repute to become null, void, and nugatory.

218

Based on my above analysis, it is my opinion that Bennett will probably not be held liable for negligence.

219

A judge must try to put his personal biases aside.

220

A. This amendment will perfect the law.

B. Victims of domestic violence never preserve the necessary evidence.

C. It is obvious that this provision is problematic.

221

A. The court held that “she was just plain wrong.”

B. Was it wrong for her to have “eaten the entire cake”?