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.

Update these as you please, adding, deleting, or modifying various items.

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 (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 (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 (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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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 else’s article.

5. Single-state articles.

6. Topics that Court or Congress may visit soon, and thus preempt.

Step 5: Write Introduction (p. 31)

The most important part of the article:

1. Persuades some people to read further.

2. Summarizes claim for those who won’t read further.

3. Provides a frame through which those who do read further will interpret what follows.

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)

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)

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)

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)

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)

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.)

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 (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)

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)

“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)

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

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.