Academic Legal Writing - Eugene Volokh [20]
And missing this observation might lead you to make a less sound generalization than you might have if you had looked at a larger dataset. The federal cases, for instance, might lead you to conclude that the Court's Free Exercise Clause strict scrutiny test in practice offered no material help to religious claimants. But this conclusion might be in some measure mistaken or incomplete, if the Free Exercise Clause had helped many litigants in state courts.
Of course time is limited, and you can't cover everything. You must limit your dataset in some ways, if only to decisions that are actually available online. Perhaps you need to limit it in other ways, too. But think at the outset about how you are limiting your dataset, and whether this limitation might lead you to miss data and therefore reach a less sound result than you otherwise would have.
5. Pay especially close attention to the Using Evidence Correctly chapter below (Part XVII)
The Using Evidence Correctly chapter has material that's helpful even for traditional doctrinal articles; but some of its points—for instance, about reading, citing, and quoting original sources, or about being careful in using survey evidence or correlation evidence—are especially helpful for historical or empirical work. Read the chapter carefully before you start your research.
H. Selling Your Claim to Your Readers
Not only must your claim be novel, nonobvious, useful, and sound, but you must show your readers that this is so. More about this shortly (Part III.C, p. 48).
I. Topics and Structures You Should Generally Avoid
Here are some types of articles that you might want to avoid. These recommendations won't always apply: Sometimes, for instance, a journal may insist that you write a case note, or your article may deal with an important and interesting problem that arises only under one state's law. Nonetheless, I think you'll find the suggestions below to be helpful in most situations.
1. Articles that identify a problem but don't give a solution
Giving a solution makes your article more novel, nonobvious, and useful, and therefore more impressive. You want to show people that you have a creative legal mind that can identify solutions and not just criticize others' proposals. If you think there are several possible solutions, that's fine—just discuss all of them, and explain the strengths and weaknesses of each.
2. Case notes
An article that describes a single case and then critiques it is likely to be fairly obvious, even if it's novel. Also, because it focuses chiefly on only one already decided case, it's less likely to be useful. For instance, Harvard Law Review Recent Cases and Leading Cases items are cited more than 10 times less often by courts and nearly 4 times less often by law review articles than are Harvard Law Review Notes—even though Harvard publishes twice as many Recent Cases and Leading Cases items as Notes. Recent Cases and Leading Cases items are not quite the same as case notes in other journals (they're shorter than some), but my sense is that case notes in all journals tend to be on average less valuable than articles that focus on the issue rather than on the case.
A case note is also a less impressive calling card to prospective academic employers, and I suspect to law firms as well: It generally doesn't show off your skills at research and at tying together threads from different contexts.
If you got your topic from a particular case, that's fine. But don't focus on the case—focus on the problem, and bring to bear all the cases that deal with the problem.
3. Single-state articles
Articles focusing on a single state's law are generally useful only to people in that state. Such articles may still be valuable, especially if the state is big; but why