Academic Legal Writing - Eugene Volokh [11]
10. ... by reading legal blogs
Read legal blogs that specialize in fields in which you're interested. Bloggers often post about interesting new cases that pose thorny, unresolved problems.*
11. ... by finding articles that aim to identify unanswered problems
Look for articles that aim to identify unanswered problems in some field. Some of them have subtitles such as “A Research Agenda,” which signal that they're trying to identify problems for others to solve. Others might not have such a tell-tale name, but might be known to professors who work in the field. Search for the “research agenda” articles, and ask professors whether they know of such articles.†
12. ... by looking back at your experience as an extern or summer associate
Think back on any experience you might have from summer jobs at a law firm,‡ a judge's chambers, or a public interest organization.* (See Part XX below on turning practical work into articles, and on asking your employer for permission to do this.)
13. ... by thinking back on your pre-law-school experiences
Think back on your pre-law-school experiences, whether academic, professional, or personal. Can you tie interesting things you learned there to a legal question?
For instance, did your undergraduate history classes teach you about some fascinating but underdiscussed past legal controversies? Do you know something about a foreign country that can help you do comparative law work dealing with the law of that country? Did you get to know people in some past job who might give you useful suggestions?†
14. ... by attending symposia or panels
Attend law school symposia or panels on subjects that you find generally interesting. These will often give you a sense of the hot and unresolved questions in the field. Try doing the same for symposia or panels at other law schools in town; you might be able to get on each school's mailing list, if you ask.*
Look for a problem that's big enough to be important and interesting but small enough to be manageable.
15. Looking for future claims when you're in class
If you're thinking ahead about writing an article a semester or two from now, look for claims when you're in class, especially a class you really enjoy. The key here is to face class like a scholar rather than like a normal law student.
Your course work will often bring you up against ambiguity, vagueness, and contradiction, whether in cases, statutes, or constitutional provisions. You'll also often read arguments that you realize are shallow, circular, or speculative.
The natural reaction for many lawyers and law students is to try to evade these problems. We pretend that a case announces a clear rule even though it's full of mushy terms that are often indeterminate in application. We learn the standard arguments, however conclusory they might be, so we can repeat them on the exam. We ignore the five different approaches courts have taken and instead just assume they fit in the “majority” and “minority” rules that the casebook gives you.
This approach may actually be good enough for succeeding (most of the time) in class, and even for succeeding in many tasks as a lawyer. Many cases that you'll face as a lawyer will involve only one of several competing rules—the one that's well-settled in your jurisdiction—or will trigger a rule's clear core rather than its vague periphery. And even when a governing precedent is based on a circular argument, it's still the governing precedent, so the flaws in its justification often won't need to detain you.
But if you are a would-be scholar, even a temporary scholar who just wants to write an article or two while in law school, you should take a different approach. You should seek out ambiguity, vagueness, contradiction, glibness, circularity, and unsupported assumptions. They give you the opportunity to shine by doing better.
So if you