Academic Legal Writing - Eugene Volokh [126]
APPENDIX A
UNITED STATES SUPREME COURT
1963-1990
I. Free Exercise Claims That Lost
[Citations.]
II. Free Exercise Claims That Won
[Citations.]
APPENDIX B
UNITED STATES COURTS OF APPEALS
1963-1990
I. Free Exercise Claims That Lost
[Citations.]
II. Free Exercise Claims That Won
[Citations.]
XX. TURNING PRACTICAL WORK INTO ARTICLES
A. The Big Picture
Writing an article from scratch can be daunting. Fortunately, you can often save time and effort by adapting work you originally wrote for another purpose—for instance, for a summer law firm job or a judicial externship.
Not all such work can be turned into a good article; some lacks novelty or nonobviousness, the stress in the real world being largely on utility. But much practical work does focus on largely unexplored questions, as you might have found if you searched for relevant law review articles before starting to write. And though memos and motions are generally shorter and shallower than a good law review article, that can be remedied.
The trick is to ruthlessly strip away those things that are unsuitable for law review articles, and to add the material that you never included because it was unsuitable for practical work. I recommend a four-step approach: Extract, deepen, broaden, and connect.
1. Practical work often covers issues that were important to the case on which you were working, but that aren't new or academically interesting. Extract those portions that would be a valuable addition to the literature, and throw out the rest.
2. Practical work often glosses over counterarguments and omits significant steps in the analysis. Deepen the work by confronting the hard questions that the original work avoided.
3. Practical work is generally tied to particular facts, a particular jurisdiction, or a particular procedural posture. Make it more useful by broadening your discussion.
4. Practical work tends to ignore (for good reasons) broader academic debates. Make your article more academically impressive and perhaps more useful to later scholars by connecting what you've written to these debates.
Ethical note: Before turning a law firm memo into an article, get permission from the firm. Most firms will want to make sure that you aren't inadvertently including confidential client material, but some might also not want you to share work that they paid for (and in which they own the copyright). Few articles are worth ruining your relationship with a prospective employer, or with a likely reference for future employment. Likewise with work you've done as a judicial extern or a law clerk.
If you're getting class credit for your work, you should also disclose to your advisor or seminar teacher that you want to base your paper on some material that you had written before. Some professors might balk at that, because they may think that you should only get credit for work that you've done specifically for school. That's the professor's prerogative, and you'll be glad that you checked with the professor up front, rather than having him learn this later, and accuse you of chicanery and of violating academic standards.
But other professors might recognize that turning a practical piece into an academic one itself requires a lot of work, and they would thus have no objection to your proposal—especially if you show them the original memo, with a brief but impressive discussion of the many things that you plan to do to it.
B. Extract
Find the material in your work that's novel and nonobvious. (Don't worry so much about utility; if the work was useful in one case, it will probably be useful in others like it.) Many cases involve some issues that have rather simple or at least not very interesting answers, and other issues that are more worthy of academic treatment.
Cut mercilessly. Remove any subtopics for which you think you can't really add any academic value. Don't worry if the result looks too short; you'll solve that problem in the next three steps. The important point is that your paper should contain maximum