Academic Legal Writing - Eugene Volokh [48]
Much of the book, of course, won't directly relate to your particular question. But some of it will, and you might not know in advance which parts will and which won't.
For instance, if you're writing on free speech and captive audiences, you don't just need to understand the cases that have mentioned captive audiences. It turns out that you also need to know at least:
a. the distinction between content-based restrictions and contentneutral ones,
b. the distinction between the government acting as sovereign and the government acting as proprietor or K–12 educator,
c. the distinction between commercial speech restrictions and other restrictions,
d. the obscenity cases that discuss the risk that some people will inadvertently see the offensive material,
e. the cases elaborating the meaning of “strict scrutiny” in free speech law, many of which happen to be campaign finance cases,
f. the rules dealing with offensive speech generally, and
g. various free speech procedural rules, such as the void-for-vagueness doctrine and the overbreadth doctrine.
Moreover, to make the policy arguments needed to support your claim, you may have to draw on principles that arise even in doctrinally unrelated areas. Captive audience questions, for instance, have little to do with incitement law and libel law. But when you write about captive audiences, you'll probably need to discuss arguments about the marketplace of ideas, chilling effects, and the like—and you'll want to draw analogies to the way those arguments have been made in leading incitement and libel cases.
2. Get the details
After you broadly understand the general area in which you'll be writing, you need to learn about the specific topic in much more detail.
a. Start with a treatise. Read carefully the chapter that discusses your topic, plus any other chapters that you've identified as doctrinally connected to your topic. Pay close attention to the footnotes, pocket parts, and other updates.
If there are multiple treatises, find the best one by asking your librarian or the professors who teach in this field. In some fields, different treatises are known for having particular ideologies; if this is true of your field, read the best treatise on each side.
b. After you're done reading the treatise chapters, go back and see which cases and statutory sections seemed to be the most important; then read each entire case and statutory provision carefully, from beginning to end.
Treatises usually tersely summarize most cases, and often omit important policy arguments, implicit limitations, and even significant doctrinal details. And while a treatise will usually give you a good sense of the broader legal context, sometimes it will omit some context that is irrelevant to most lawyers but quite relevant to your argument. There's thus no substitute for reading the cases and statutes themselves.
3. Find other works on the topic (the literature search)
Once you get a sense of what the law is, you need to find the articles and books that touch on your particular topic. You should read them because (1) they might say something useful, and (2) you need a novel claim (or at least a novel argument for your claim), so you need to know what has already been said.
How can you find these works?
a. Check the Index to Legal Periodicals and the Legal Resource Index (available in Westlaw as the ILP and LRI databases), and of course the book catalog in your law library.
b. For many topics there are several cases that are so important that any serious article on the subject must discuss them. Search for all the articles that mention those cases. If that yields too many articles, try doing an ATLEAST search in Lexis, finding all articles that mention the cases at least a certain number of times. Do the ATLEAST search using the case's short-form name, since an article may cite a case fully only once and then use the short form.
c. Ask your professor