Sunday, August 13, 2006

Law Review Writing Time

Are you sweating away the end of your summer trying to write a fabulous law review article? Don't ruin your summer, bunky! Here are Professor McKenzie's Research Tools for Writing an Excellent Article in Less Time. It won't completely do away with the drudgery, but it will cut down on those false starts and worries about picking the best topic. There are lots of hot issues, you just have to pick a good one and then think originally about it or provide really helpful research and links. Snap-city, right?

Be smart and write with an idea where you aim to place the article. Keep in mind the new limits on length Law Review Link. You can do it! Then of course, there is Expresso to submit the darned thing, unless you are aiming at your home journal. (check the link just above for a link to Expresso.

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Research Tools for Writing an Excellent Article
In Less Time

I. How to Select a Topic – Try to think of a problem that needs solving. Look for unresolved issues, circuit splits, unexpected consequences, upcoming hot topics. Read critically; look for logical fallacies, contradictions, questions left unanswered, omissions and mistakes. Make up hypotheticals and apply the current holding to see if it works. If not, you may have a topic even if it has been written about.

A. SUNN: Make a Sound, Useful, Novel, Non-obvious Argument
Ask Around: Practitioners, faculty, friends may have ideas about issues. You may have written a memo at a job or clinical placement that could be developed into an article..

B. Casebooks, Class Discussions; often the questions at the end of a chapter may give you an idea. Did something jump out at you as an unanswered question?

C. Treatises, ALRs, U.S. Law Week. Look for a topic of interest and see if you can use one of these to locate a split in circuits or an unresolved problem in your interest area. But beware of circuit splits! Check to be sure the Supreme Court is not going to preempt you with a decision reconciling the circuits.

D. Case notes and Comments. Read existing student articles to help select a topic or to refine one. Note your reactions as you read. Question the article and the case.

E. Legal writing competitions, moot court and professional conferences’ topics often make good articles. The networking at conferences can offer a chance to ask practitioners about good topics. Remember that attendance at the Suffolk Advanced Legal Studies programs is free to you as a Suffolk student!

F. West Topic/Keynumber on Splits in Jurisdictions (106 K 90, 91, 95, 96). Also look for petitions for certiorari which often are based on unresolved splits among jurisdictions. Uniform Laws Annotated, can be another source listing varying rules among different jurisdictions (in print in our library or online at Westlaw).

G. Westlaw Bulletin, Westlaw Topical Highlights, and topical listserves are good sources for new issues. Scan legal newspapers and news databases.

H. Other good angles: Historical issues, legal philosophy, and applying new scientific or sociological research to current law for analysis. Try new facts against old legal rules; situations where society or technology has changed.

II. Checking for Originality, Preemption

A. Searching for journal articles online:

1. Use both the full text journal databases and the online indexes (Index to Legal Periodicals and Current Law Index – also known as Legal Resource Index) on Westlaw and Lexis. There is also an important database on Westlaw (LRAC), Law Review Abstracts Clearinghouse that lists articles being shopped. This is an vital last search! LegalTrac (available through the Suffolk Law Library website) is another good place to search for articles.

2. Use both a Natural Language and a Terms/Connectors search on Westlaw and Lexis.

B. Check footnotes carefully in the articles you find. When you aren’t finding new articles listed anymore, you probably have completed your preemption check. These footnotes can also be goldmine for starting off your own research!

C. But don’t give up if you have a topic you like that has been covered. You can create originality even in an area much-written about

1. Think about exceptions, new or special factors, problems with the settled rule. Try comparing jurisdictions or historical eras. Consider defining or redefining the issue to make a “done” topic new again.

2. Take a different point of view. Does the current law look different if you analyze it from a minority or special point of view? Perhaps an analysis using historical data, or from a “law and economics” direction would make a “taken” topic new, useful and fresh. Or think about the effect of a rule of law – a sociological study of the effect.

3. Focus on issues not resolved by the current conversation on the topic.

4. Try a different jurisdiction – for instance, if the federal Constitution question is settled, can you say something different about the application of state constitutional law? If the statute has been analyzed, perhaps the regulations look different. Try municipal law.

III. Test your thesis – make up hypotheticals to test your argument (thesis). If you find a wrong result, don’t give up, refine and modify your proposal. But don’t waste your time making a ridiculous argument. You want your article to be useful! Talk to a faculty member, a mentor and/or a friend to see if your thesis makes sense to them.

IV. Research

A. Find one or two cases that illustrate the issue, then ...

1. Use Shepards, KeyCite and the cases cited in your original cases to find more opinions on point. Don’t forget the Table of Authorities feature to list the authorities relied on in the first cases.

2. If you have a statute, don’t forget to use annotated statutes and Shepard’s and KeyCite to locate cases that discuss your statute.

3. Use the West headnotes to find more cases with the same topic and keynumber. You can do this on Westlaw with the Custom Digest feature.

4. Select key terms and use the West Synopis and Digest fields (SY, DI) to create searches on Westlaw to find more cases on point.

B. Look for administrative agency decisions, attorney general opinions on your topic. Westlaw and Lexis both have databases for these. There are some looseleaf services in the library that also have agency decisions not available online.

C. Look for proposed legislation to address the issues you have raised. Don’t forget about regulations! Federal agencies propose regulations in the Federal Register, and then take comments from the public. They come back and announce the final regulation and explain what comments were made that influenced their decision.

D. Look for news articles about your problem – there may have been incidents that never generated a published opinion but illustrate the problem you raise.

E. Check Looseleaf services, treatises and books on your topic. Don’t forget to check the law library catalog to see if we have a treatise or book that might be helpful! There may be useful non-law materials as well.

F. Web research can be useful, but be an educated consumer! Verify the reliability of web-based information. Read the search tips for the search engine, directory or metasearch engine you choose.

G. Make an appointment with a reference librarian. They can save you time and help you be more thorough.

H. Read everything critically, and make notes of the questions and comments that occur to you while you read.

V. Citing: Correct Format and Avoiding Plagiarism

A. Make sure you have the full citation with your notes, so you don’t have to go back and look things up to complete your cite!

B. Use the correct citation manual.

C. Plagiarism can be overt, taking material word-for-word wtithout attribution. But it can also be covert.

D. Cite to what you actually read, even if it is referring to another author. Best practice is to go to the original source and read that.

E. Attribute in your first draft, or else you are likely to forget where you got the ideas by the time you complete the paper.

F. When you borrow 7 consecutive words or more; attribute for fewer words if the language is distinctive.

VI. Resources

A. Academic Legal Writing: Law Review Articles, Student Notes and Seminar Papers, by Eugene Volokh. (Foundation Press, 2003). On reserve, Suffolk.

B. Scholarly Writing for Law Students: Seminar Papers, Law Review Notes and Law Review Competition Papers, by Elizabeth Fajans and Mary R. Falk. ( West Group: 2000). Second Edition. On reserve, Suffolk.

C. Heather Meeker, Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers, 1996 Utah L. Rev. 917. This is a jewel of an article!

D. Eugene Volokh, Writing a Student Article, 48 J. Leg. Ed. 247 (1998)

E. Online Help for Law Students: Jurist
F. Online article on good student writing: Link

G. More from Volokh: Writing

1 comment:

Marie S. Newman said...

Good post, Betsy. I plan to share it with students.