Academic Legal Writing - Eugene Volokh [127]
Some memos contain several interesting issues that arose in the same case but aren't inherently connected—for instance, a jurisdictional question and a largely unrelated substantive question. Split them up. Better to have several short articles, each with a coherent internal structure, than one long article that contains several essentially unrelated matters.
C. Deepen
Practical work encourages you to take certain shortcuts. Replacing these shortcuts with more thorough analysis will make your article deeper, more valuable, and more impressive.
1. Question existing law
If the case law in your state or your federal circuit is settled, your law firm memo or judicial externship bench memo generally isn't supposed to analyze whether the decisions are sound; it's supposed to work within the existing framework.
Not so for law review articles. Articles are generally addressed to a national audience, and other states or other circuits may be free to adopt a different rule. And an article may also argue that the Supreme Court, state supreme courts, or federal circuits sitting en banc should change even a settled rule—an argument that most practical memos rarely make.
So don't just say, “this result is right because X v. Y and Z v. W have so held.” Instead say, “this result is right because it fits with these general principles (whether doctrinal principles or policy principles), and courts have indeed seen it this way (citing X v. Y and Z v. W).” Or feel free to say, “this result is right because it fits with these general principles; some courts have disagreed, but here is why they're wrong.”
2. Take counterarguments seriously
Briefs often gloss over some counterarguments, whether because the counterarguments are so weak that they aren't worth discussing given the page limit, because they're so strong that the supervising lawyer prefers not to stress them, or because you think that this particular judge won't care much about them. Law review articles, on the other hand, are generally strengthened by a full discussion of the counterarguments.
Go through your work carefully and look for all the fudging. When you say, “because X is true, Y is true,” is there a missing step? Is there a counterargument that you haven't confronted? Are you entirely persuaded by your own writing?
Resist the temptation to take the easy way out. Your article should aim to impress readers with your thoughtfulness and fair-mindedness; the best way to do that is to confront the hard counterarguments, not ignore them.
3. Reflect on your initial goal
Practical work is often constrained by its procedural posture. What should a prudent client do to avoid any chance of liability under a vague rule? What's the best place to file a particular case?
Ask yourself whether it's good that lawyers are asking these questions. For instance, maybe the legal rules shouldn't be so vague that they pressure people into taking the most conservative path; you could use the suggestions from your memo as illustrations of the rule's vagueness. Maybe the legal system should discourage forum-shopping in this context; you could use the discussion from your memo to show how the choice of forum makes a big difference.
Remember: You're no longer locked into the particular assignment you were given. You should take advantage of the time and effort you've invested in your work, but build on the work by thinking beyond the specific problem you were originally trying to solve.
D. Broaden
Practical work usually focuses on a particular fact pattern and a particular jurisdiction. While you want your article to be narrow enough to be manageable, you also want to make it more useful, and that means making it applicable to as many cases as possible.
You can often generalize your analysis with fairly little extra effort. Say your work dealt with only one state's law; usually the law in many other states will be similar. Turn your article into something that focuses on general U.S. law, or