- Picking a Topic
This is the hardest part of writing a paper. A good student law paper will have the following characteristics:
- It will be about a very specific, defined topic. Students regularly come into my office with a ‘topic’ they want to write about that would take a three-volume treatise to cover properly (“Copyright on the Internet”). Or they have a genuine area of interest (“the Internet of Things” or “Big Data and privacy”) but haven’t drilled down to what single (one hopes, original) thing they want to say about it. Narrowing to a very specific topic is essential because even a very narrow topic can chew up time and pages and pages if you take it seriously.
- Even if the topic is popular, the author’s take on it will be novel. This requires a careful pre-emption check before you start writing. Lots of good ideas, including I assure you plenty of mine, turn out to be so good that someone, or several someones, have already written about it. At that point one must either (1) change topics, or (2) read all the existing potentially relevant writing to see whether one has something meaningful to add to it, or in quite rare cases (3) if there is an article that seems to be dominant and/or is by an important scholar, and it has an error or gap, writing to identify that problem may in some cases make sense.
- The article will make an argument about something, and have clear logic flow that is visible in an initial outline. Everything that doesn’t contribute to proving the conclusion ought to be left on the cutting room floor. Of course, outlines can change as new ideas and discoveries (or even court decisions!) happen during the writing process, so no initial outline is ever set in stone. But it needs to exist as evidence that there is a writable project there.
- Writing Basics
- Omit needless words. Ruthlessly. See Strunk & White, The Elements of Style, for details.
- Short sentences are better than long ones. Always.
- There is a presumption that the first sentence in each paragraph should be the topic sentence. Do not overcome this presumption without a reason.
- The passive voice should be avoided like the plague. It should be avoided not because it is boring, although it is, but because in the passive voice verbs are used without a subject. “A crime had been committed” lacks the punch of “The butler did it.” Worse, the temptation to use the passive voice often means that you are not sure — or really don’t know — who did it. Giving in to the temptation to obfuscate that you don’t know this important fact is bad. On the other hand, noticing that you don’t know, making a point of finding out, and sharing the knowledge, can be quite good.
- Beware pronouns. There is always a danger that your reader may not be clear about what “it” refers to or who “he” was.
- Think about logic flow. You should be making an argument about something. Most of the paper will be proof of pieces in your chain of argument. You should be able to diagram the flow of your argument.
- A very serviceable paper structure has a first paragraph that announces your conclusions, followed by a “roadmap” paragraph that tells the reader what is coming. Then you tell them. A brief conclusion tells them you told them. I advise you to create a table of contents based on all your headings and subheads and look at it to see if it summarizes your argument. You may not want to include the table of contents into the final draft of a paper that is less than, say, 40 pages long, but it is still a useful drafting tool while you are writing the paper.
- The Introduction (I). A common error you may wish to avoid is setting out the legal background to your problem before telling the reader what the problem you are addressing may be. This creates two literary problems. First, the reader needs to know why you’re telling him or her all this stuff in order to slog through it. Knowing the problem creates a motivated reader. Second, if you talk about the general sweep of the law first, then the facts, then your specific legal issue, you will end up repeating all the relevant law when you apply that specific law to the facts (and anything you do not repeat probably should not have been there in the first place). You will need to know the legal background before you set out to write (and thus it sometimes makes a lot of sense to write the general stuff and then set it aside!), but the reader gets to benefit from your work, and has it fed to him or her in bite-size chunks only exactly when needed and not before. So, unless you have a very very good reason you should probably start with the facts/issue/problem, then move straight to analysis, giving the legal rules and background as you go along. That way you only have to tell it once. (And thanks to your extensive footnotes, there will be no doubt as to the correctness of the authority on which you are relying…)
- The Introduction (II). I also advise you to avoid starting with a hypothetical problem that you think illustrates your issue (“Alice is walking home one evening when…”). Hypotheticals have their place, but that place is almost never the introduction because with them it usually takes far too long for the reader to learn what the article is about. (See also paragraph above about the motivated reader.) The introduction should summarize the issue as concisely as possible and also introduce your contribution to solving it.
- Style & Mechanics
- Can you imagine why anyone would allow herself more than one rhetorical question per 50 pages? Or even any at all?
- Any time you find yourself using “latter” or “former” or “that” or “such” to refer to something discussed earlier, replace one of the former with an adjective, a noun, or an adjective phrase. Thus, for example, “the former issue” becomes “the clarity issue.”
- Try to make your writing much like your speech: simple, direct, unpretentious.
- Do not try to write like a court. Judges write badly. So do most other legal writers
- However, avoid contractions (don’t use “don’t”), slang, and jokes–even if you talk that way.
- Never use pretentious legalisms such as “the case at bar” or “the instant case.” Call it the Jones case.
- Avoid long words when short ones will do better. “Utilize” reeks. Use “use.”
- Do not sell too hard. Persuade; do not bludgeon. Avoid violent adjectives.
- Have the courage to be dull if this is the price of being clear. If your ideas are interesting, they will carry the paper far better than a turn of phrase.
- Use the same word or phrase every time you mean the same thing.
- Use the same simple sentence structure (subject, verb, predicate) as often as you wish.
- Legal writing is technical writing. Be suspicious of the fine phrase or the fancy word. Especially the fancy word.
- Always be specific. Instead of “in recent years” try, “since 1980.”
- Pick a tense and stick to it. Do cases hold, or have they held? I do not care, so long as they only do one of those things. Of course, you can use tenses to reinforce a temporal sequence: courts had held, developments ensued, reformers argue, the result will be.
- I am a great believer in the penultimate comma. English teachers often are not, but I believe that technical writing–and believe me, legal writing is technical writing–needs all the help it can get. A penultimate comma works like this: “The four factors that affect good writing are clarity, conviction, structure, and attention to detail and syntax.” The last item in this list is “attention to detail and syntax”; without the comma after “structure” it would be unclear whether the final clause, joined with an and, was one item or two (maybe the author cannot count and there are really five items on the list?). The comma makes it clear.
- It’s means “it is.” Its means “belonging to it.”
- Quote marks should only be used if you are quoting someone else, or in a definition or definition-like use (e.g. the paragraphs directly above and below this one). Do not use them for sarcasm or for “emphasis.”
- You cannot use “id.” to refer to a note that has more than one source cited in it, as it is not clear to which source the “id.” refers.
- Never, never, never use “etc.”
- Judicious use of inset quotes is fine. You probably should not use more than one every five or ten pages unless doing close textual analysis of a particular case, statute, or regulation, in which case it may be essential to quote it at greater length. In general, it’s not a good idea to quote secondary sources at length unless you plan to beat up on them and want to assure the reader that the idiot really said that stuff in his own words. Remember that the average reader SKIPS the inset quote–so you need to provide a little summary of it afterwards which will allow the article to make sense when read in this manner.
- I advise you to write in a neutral voice. Do not address the reader. And you should not speak of the reader as “you” (this is a blog post, not a legal article). While legitimate opinions differ, I tend to think that legal articles usually read better if the author does not ever use the perpendicular pronoun. It’s not about you, I argue, but about your topic. That said, there is a respectable counter-argument which holds that it is wrong to pretend there is no author with views that motivate the text, and that therefore the occasional intrusion of the authorial “I” is permissible, especially when it makes for less convoluted writing. Thus, for example, some people prefer “In Part II I will show that….” to the, they say, falsely neutral omniscient “Part II shows that…”. Go ahead and take your choice, so long as the I’s don’t take over the paper. But be particularly suspicious of expressions of personal opinion, since this becomes an excuse to avoid citing evidence.
- I endorse (and recommend you follow) Lawrence Cunningham’s advice about Pedagogical Nomenclature.
- Legal Argument
- Legal argument is made up of logic or evidence, of appeals to authority, and of arguments about policy.
- Assertions are not logic. Logic is about proof of a proposition, or at least the dis-proof of the opposite.
- The judicious use of evidence requires a recognition of what it does not prove as well as what it tends to show.
- Not all authority is of equal weight.
- A no-name is less persuasive as an authority than a major treatise by a famous author, or a decision by the Supreme Court. Some lower court judges have a reputation that makes their decisions more significant; but most do not. If you rely on Prof. Joe Schmoe as your main authority, do not trumpet Schmoe’s name throughout your text. Schmoes belong in footnotes. Justices Brennan and Scalia belong in the text.
- Never rely on a secondary source (an article, a book), for the holding of a case or for any fact it reports. Cite the case directly. Read the case yourself. The alternative is malpractice. And low grades too. That said, it is also fine to find, read, and cite to secondary sources such as journal articles for commentary on what the case says. Indeed, ordinarily you should be sure to cite to major articles in the field at least once in order to show you have read and considered them.
- The same rule applies to any official document that you discuss in your text — find, read, and cite to the original, not a secondary source, for what the document says. Of course, it is also fine to find, read, and cite to secondary sources such as journal articles for commentary on what the report says.
- Policy arguments are fine, sometimes great and wonderful, so long as the reader is clear as to what kind of argument you are making, and to what extent it reflects, comports with, or contradicts, existing law.
- The basic rule for a legal paper is that you must provide authority – a footnote (yes, footnote not endnote!) – for every assertion of law and fact. The only thing that is your own are your conclusions. A maniacal attention to footnoting is actually quite healthy, as it will keep you honest. So often there are facts we all (or maybe just you?) are sure of, but for which you can’t find quality support. Those former facts don’t belong in your paper. As to the law, the standard to which you should aspire is that the judicial reader need do no more than look up what ever you cite — i.e., the reader need do no independent research to validate your claims about cases, statutes, regulations, treaties, and the like.
- Speaking of footnotes, I strongly recommend that you footnote as you write. It’s not necessary to blue book a rough draft, but it is necessary to capture all the information needed to later bluebook the footnte at the time you first refer to an article — going back to dig up the publication date or authors’ names will almost certainly take longer than capturing that info the first time.
- Similarly, while the final draft should have proper supra and infra references, I tend to just copy the full cite when writing a draft (but adding the pin cite – nothing is harder to re-create later than a pin cite). That way, when I edit the article and cut some things and move other paragraphs around, I don’t lose track of my references, and they are less likely to get scrambled. Otherwise it is infuriating to find an “id.” in the penultimate draft for which one is no longer clear as to what it referrs.
- Be sure your paper has a title
- Number your pages
- Blue book your footnotes.
- If your software keeps putting footnotes on the wrong page, it’s probably Word
- Here’s what to do in Word 2000 and Word 2002
- Here’s the fix for Word 97
- Here’s the fix for Word versions 2.0, 2.0a, 2.0a-CD, 2.0b, 2.0c, 6.0, 6.0a, 6.0c & Word for the Mac
- And here’s a new solution that should provide a permanent fix for the problem (and others too).
- Shepardize (or auto-cite) your cases. Don’t be caught relying on outdated authorities.
- Please include your phone number and email address on the rough draft and final copy. Be sure and make a copy in case mine meets with an accident. You may also want to include a version number if I’ve had another version previously.
- I do not give last-minute extensions. I fail papers that are not turned in on time without a PRIOR agreement regarding a Temporary Incomplete (subject, always, to clemency for true medical emergencies and the like).
- A Few Words About File Names
Most of our students will spend at least some part of their careers working in large organizations where they share electronic documents. Students should get in the habit of giving their documents good file names. Thus “paper draft” is always bad — imagine if everyone calls their documents that!
Some organizations have naming conventions, but if not, be sure the file name has three things: your surname (if the primary author, so you get the credit), something substantive (not “paper” or “motion” but “Jones-dismiss-motion” or whatever), and a version number. You usually do not need a date, the software will do that automatically.1 For papers it’s probably a good idea to put your surname first, then a summary form of the paper title, and then the version number, as that way over the course of time all your submissions to your professor will be grouped together and easy to find.
It is good a habit to avoid spaces in file names (use – or _) so that files translate well to UNIX systems if they ever touch one. Do not use any other odd non-alphanumeric characters as it can mess up some older file systems.
- Sources of Good Advice
For good advice on everything from picking a topic to planning the next article, see Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247 (1998). See also Volokh’s page on academic legal writing and his book (an expanded version of the journal article), Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review (4th ed.) [on reserve in the library] and Prof. Stephen Schnably’s advice on picking a topic and on writing a paper.
For a quick reminder of a few good rules of writing (almost as applicable to a law paper as to its ostensible topic, the e-mail), see David Silverman, How to Revise an Email So That People Will Read It. For a slightly longer treatment, with a lot of good advice to the beginning legal writer, see David Post Writing Guidelines: General Principles & Rules Of Thumb.
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Last modified: May 20, 2019.
- The estimable Charles Petit demurs:
I continue to genially disagree with your advice “filenames don’t need a date, just a version number”. I’ve used the date AS the version number for several decades, because going across systems — or even just changing software (remember when the legal profession standardized on WordPerfect 5.1 for DOC?) — means that version numbers/tracking that rely on software are just as reliable as ICE estimates of the number of children separated from their families.
Putting the date (or a date code) into the filename also helps when changing operating systems… and countries. Consider, for a moment, the problems facing a student who takes a job in Frankfurt and needs to refer back to his student work _in the body of a memo_. Just the punctuation issues will cause trouble!