Academic Legal Writing - Eugene Volokh [12]
16. Checking with your law school's faculty
Once you've tentatively chosen a problem, run it by your faculty advisor. Your advisor will probably know better than you do whether there's already too much written on the subject, or whether there's less substance to the problem than you might think.
Also talk to other faculty members at your school who teach in the field, even if you don't know them. Most are happy to spend a few minutes helping a student.
Even if you're no longer a student, you should still be able to draw on your law school's faculty: Professors feel some obligation to help alumni, especially those who they think will eventually try to go into teaching. If you feel uncomfortable approaching a faculty member whom you don't know, ask another professor whom you do know to introduce you (in person or electronically).
17. Keeping an open mind
Do your research with an open mind. Be willing to make whatever claims your reading and thinking lead you to.
Also be willing to change or refine the problem itself. Remember that your goal is to find whatever problem will yield the best article. Don't feel locked into a particular problem or solution just because it's the first one you thought of.
18. Identifying a tentative solution
Decide what seems to be the best solution to the problem. For the descriptive part of your claim, the best solution is the most plausible explanation of the facts that you've uncovered, such as facts about history, about the way the law has been applied, or about the way people behave.
For the prescriptive part, the best solution could be a new statute, a new constitutional rule, a new common law rule, a new interpretation of a statute, a new enforcement practice, a novel application of a general principle to a certain kind of case, or the like. This will be your claim: “State legislatures should enact the following statute ....” “Courts should interpret this constitutional provision this way ....” “This law should be seen as unconstitutional in these cases ..., but constitutional in those ....”
Test your solution against several factual scenarios you've found in the cases, and against several other hypotheticals you can think up. Does the solution yield the results that you think are right? Does it seem determinate enough to be consistently applied by judges, juries, or executive officials? If the answer to either question is “no,” change your solution to make it more correct and more clear. (I discuss this “test suite” process further in Part II.)
The solution doesn't have to be perfect: It's fine to propose a rule even when you have misgivings about the results it will produce in a few unusual cases. But candidly testing your solution against the factual scenarios will tell you whether even you yourself find the solution plausible. If you don't, your readers won't, either.
C. Novelty
1. Adding to the body of professional knowledge
To be valuable, your article must be novel: It must say something that others haven't said before. It's not enough for your ideas to be original to you, in the sense that you came up with them on your own—the article must add something to the state of expert knowledge about the field.
In practice, the best bet is to find a topic that has not been much written on. The second best option is to at least find a claim that hasn't been made before, even if many others have made other claims related to the topic. But if you really want to reach a conclusion that others