Academic Legal Writing - Eugene Volokh [50]
C. Knowing When to Start Writing
When exactly are you done with your research? It's impossible to tell for sure: There's always the risk that you haven't found some key case or some perfect example.
Realize, though, that starting writing doesn't mean stopping your research—it just means shifting your primary energies to writing. While you're writing, you'll find yourself supplementing your initial research as you realize that your original searches didn't address some important aspects of the problem. And this extra research might well have been impossible at the outset, because you didn't know that it was needed until you really thought through the question, and you couldn't really think through the question until you had to write down your answer. Your understanding of the caselaw and the factual background doesn't have to be perfect when you start writing. It's enough if you understand the basics, and fill in the gaps later.
As Pam Samuelson has pointed out, the trick here is to know yourself.11 Many of us (including me) use research as a device for procrastinating, because research is more manageable and less daunting than writing. If you fall into this category, force yourself to shift to the writing phase earlier than you normally would. Conversely, if you've found that you tend to breeze through the research, then do a bit more than you usually do.
D. Digging Deeper into the Key Sources
So far, we've talked about researching legal rules and sample incidents. But once you've identified the key cases, statutes, and incidents, you might also want to research deeper into each of these sources. For instance, you might:
1. Track down earlier drafts of the statute you're writing about, precursor statutes, committee reports on the statute, and debates about the statute.
2. Track down lower court decisions, including unpublished ones, in some of the key cases that present the problem you discuss.
3. Track down complaints, indictments, trial transcripts, documentary evidence, and briefs in those cases.
4. Investigate why a case was brought: Was it part of an advocacy group's litigation strategy? Did it flow from unusual local conditions?
Often the results can give you extra perspective on why the court didn't deal with a certain argument (maybe it just wasn't raised in the briefs), why a court reached an unexpected result, what a statute was intended to do, and more. And sometimes lower court decisions, and especially the briefs, can point you to extra arguments or counterarguments that you hadn't considered—though keep in mind that some of those arguments might not be sound.
Sometimes the results will also give you a more detailed picture of what happened in the case, a picture that can help you illustrate the problem more concretely and persuasively. Thus, for instance, a published appellate case may say that it upholds an order “restricting the father from discussing any issues pertaining to his religion or philosophy with the subject children.” But the unpublished trial court opinion, which no-one other than the parties has read, may explain that the father is a jihadist who named his children Mujahid David and Mujahid Daniel, and the mother was trying to keep him from teaching them his jihadist ideology. That makes the story more interesting, more complex, and likely a better vehicle for your discussion.
And looking at the documents could help you avoid embarrassing errors. One casenote I know about, for instance, concluded that a reviewing court should remand a particular case for further fact-finding. (The casenote was in an online law review supplement, so it came out while the case was under review.) But it turns out the fact that supposedly had to be found was already known to the court; there was no uncertainty about it. Looking