Academic Legal Writing - Eugene Volokh [56]
Searching in Westlaw's ALLCASES-OLD database for text(“intellectual property”) & date(< 1/1/1900), for instance, yields three cases; but this is not because nineteenth-century lawyers didn't see copyrights as property (as I've heard some suggest). Rather, they spoke of literary property, and a search for text(“literary property”) & date(< 1/1/1900) yields 58 cases. If you want to find early cases that deal with what we'd now call “symbolic expression” or “expressive conduct,” you'd need to search for the term “signs” (often appearing in the phrase “signs or pictures”). If you're searching for “freedom of the press,” you should also search for “liberty of the press.”
Likewise, if you want to find early references to the right to trial by jury in civil cases, you should search for “Ninth Amendment” as well as “Seventh Amendment.” The first Congress proposed twelve amendments to the states; what we call the Bill of Rights consists of amendments three through twelve of that set. The first two amendments were not ratified at the time, but some people included them in the numbering for at least about 25 years. Thus, for example, the 1815 case Hunter v. Martin speaks of the “9th article of the amendments” and the “ninth amendment” to refer to the civil jury trial right, “the twelfth amendment” to refer to what we now call the Tenth Amendment, and “the eighth amendment” to refer to the Sixth Amendment rights to speedy trial and jury trial.
Late 1700s and early 1800s documents also had one marked font difference from modern documents: Some “s” characters were printed in a way that looks much like modern “f”s, so that “Congress” might look like “Congrefs”—and electronic scanning software may scan it as “Congrefs.”
Many electronic databases have corrected for this, but some have not. You should therefore take this into account in your searches, so that if you're trying to find (for instance) the phrase “free state,” you might want to search for “free ftate” as well.
How can you find such translations from modern terms into the older ones?
First, keep your eyes open. If you read an old copyright case and see it talk about “literary property,” recognize that this might be a search term that could find more cases for you.
Second, read the old treatises to see what terms they use.
Third, independently look up the cases that are cited by the cases and treatises you've found, and that cite them in turn, rather than counting on your electronic keyword searches to find all the cases you need.
IX. EDITING: GENERAL PRINCIPLES
A. Go Through Many Drafts
“Nothing is ever written,” my high school journalism teacher taught us, “it is rewritten.”* Aim to produce your first draft well before the deadline. This is hard, but critical.
Print the draft, edit it thoroughly, and enter the changes. Edit the draft on the printout, not on the computer; it's generally easier to spot errors that way. As you edit, ask yourselves these questions:
1. (For each sentence:) What information does this sentence communicate to readers that they don't already know?
2. (For each sentence:) Has this information—or even part of it—already been communicated by a previous sentence?
3. (For each sentence:) Are this sentence and the previous sentence so closely related that part of the first sentence is repeated in this one?
4. (For each word, phrase, or sentence:) Can I eliminate this without changing the meaning?†
5. (For each phrase in a sentence:) Is this how normal people talk?
6. (For each word:) Does this word communicate exactly what I want it to?
7. (For each noun:) Should this noun be a verb, adjective, or adverb instead?
For more tips, check out Bruce Ross–Larson's Edit Yourself, which focuses mostly on word and sentence edits; C. Edward Good's Mightier Than the Sword and A Grammar Book for You and I; Bryan Garner's Elements of Legal Style; and Strunk & White's The Elements of Style, the classic general writing guide.
Set the draft aside for