Academic Legal Writing - Eugene Volokh [0]
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