Academic Legal Writing - Eugene Volokh [166]
A former chief notes editor at a leading law school echoes this. “Make sure you use all of the endnote space you are given. It's not really fair (or reflective of literary merit), but I remember that people who used, say, only 5 pages of endnote space out of the 15 they were given were regarded as not having worked very hard at their submissions. Every bit counts, and even the appearance of lack of effort can be fatal.”
b. Try to use all the sources
If you haven't used some of the sources that you're given, look over them again to make sure that you haven't missed anything.
Sometimes, editors may intentionally give you sources that you don't really need. Sometimes, your argument may legitimately take you in a direction that makes certain sources irrelevant.
But those situations should be rare. Generally, if the editors give you some sources, each one of the sources is likely to be helpful. Read them, cite them, but most importantly, use them: Don't just cite them for the sake of having cited each source, but figure out what the value of the source is to your argument (or to some counterargument).
c. Don't just describe the authorities
Don't just describe the authorities, for instance, “In X v. Y, this happened. The Court ruled this way. In A v. B, this happened. The Court ruled that way.... Therefore, in this case, the Court should rule this way.” Rather, synthesize the authorities into a rule, and then cite them to support your synthesis. See Part IV.B, p. 64 for examples.
d. Pay attention to the weight of authorities
If the law review editors give you a packet of source materials, the packet may contain statutes, U.S. Supreme Court cases, lower appellate court cases, trial court cases, law review articles, and excerpts from treatises. If they ask you to do your own research, then the results of that research will contain a similarly mixed set of materials.
Keep in mind that some of the authorities are more important than others. A U.S. Supreme Court case is more important than a district court case; the U.S. Supreme Court case is binding throughout the nation, while the district court case isn't even binding in that very district. Don't overstate the value of lower court precedents.
“X v. Y held that Z,” where X v. Y is a district court case or even a court of appeals case, is not itself a conclusive argument that Z is the law, or that other courts will reach the same result. Definitely use the lower court cases where they seem relevant—but keep in mind that if you rely on a lower court case, you must also explain why that decision should be followed, rather than just assuming that it would be followed (even if the lower court case seems very close to your facts).
You should also rely on the real authorities—such as cases, statutes, constitutions, and regulations—more than on any law review articles that you might have been given. Articles are just opinions; “Professor Schmoe says this-and-such” is not by itself a good argument that courts would or should accept this-and-such.
Certainly cite the articles when you borrow arguments from them; and do take advantage of whatever enlightenment they can provide, and whatever support they can give your thesis. But the main support for your argument should be the legal authorities, linked together by your own logic.
e. Cite everything you rely on
The law review editors will likely be on the lookout for inadequate attribution, which they may well see as plagiarism that would categorically disqualify you. What's more, because they're familiar with all the sources, they can easily spot any unattributed copying, paraphrasing, or even reuse of a general idea. You should read Part XXVI.A for more on what constitutes plagiarism, and how you can avoid it; but the brief summary is cite everything you rely on, including sources that you rely on for ideas as well as for literal words. A few tips:
i. Include footnotes or endnotes as you write, rather than just waiting for later. Later, it will be too easy to forget.
ii. If you run out of footnote