Academic Legal Writing - Eugene Volokh [19]
If you don't know who the right specialist on your faculty might be, or you're afraid the person might be too busy to make time for you, ask your main advisor to pave the way for you. Your main advisor will probably be eager to help, since he will know his own methodological limitations, and will want you to get advice from someone who doesn't suffer from those limitations. And your main advisor could even get you help from historians or empiricists in other departments.
2. Look for books and non-law articles
Many law students (and even law professors) fall into the habit of doing nearly all their research on Westlaw and Lexis. It's convenient, and for purely legal issues it's usually not bad.
But this won't work for research on history, sociology, economics, and the like. For such research, you'll want to search for articles in the journals that serve the relevant fields. You'll also want to look for books, especially if you're writing about history; books play a much bigger role in historical scholarship than in legal scholarship. Ask your reference librarians for help figuring out how to find all these works (for instance, through resources such as JSTOR).
3. Watch out for the historian's “false friends”
Language teachers talk about translators' false friends—words in a foreign language that sound familiar, but are quite different. The classic example is the Spanish “embarazada,” which means not embarrassed but pregnant. The Russian “magazin” means a shop, not a magazine. If you're not careful, the false friends can fool you into making an error.
Likewise, old sources speak a language that's usually very close to ours (at least if we go back only 200 years or so) but that sometimes includes false friends. To most readers today, “militia” means either the National Guard or some small quasi-private force. In late 1700s America, it generally meant the entire adult white male citizenry (possibly up to age 45 or 60) seen as a potential military force.3 “Free state” today often means independent state, and in the early 1800s often meant a nonslave state. But in 1700s political works, it generally meant (more or less) a democracy, republic, or constitutional monarchy.4
The same is true in many other contexts: Words and phrases subtly change their meanings. Words that were once legal terms of art lose their technical meaning and revert to their lay meaning, and vice versa. Grammatical and punctuation conventions change.
So before relying on your assumption that a term meant the same thing in 1830 or 1730 as it does today, do some investigation. Do some sources that use the term seem odd when the term is assigned its modern meaning? What do contemporaneous legal dictionaries say about the term? What does a faculty member who specializes in the era say about the term?
4. Consider whether you're limiting your dataset in ways that undermine your generalizations
Say that you are studying the effect of the Supreme Court's 1963–1990 Free Exercise Clause religious exemption doctrine. You want to figure out how lower courts actually applied the doctrine, which mandated strict scrutiny when religious exemption requirements were denied. Was this strict scrutiny really strict? Or was it, as some have argued, “strict in theory but feeble in fact”?5 So you decide to go through all federal appellate cases from 1980 to 1990 that applied the Free Exercise Clause to religious exemption requests.
That would be an excellent project (and in fact such a project produced a superb student article, which is discussed in more detail in Part XIX)—but you should recognize an important limitation: By looking only at federal cases, you would be missing the possibility that some state courts have applied the