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Thesis Writing for Law Students

Prof. Gary Chodorow


BFSU 2007-2008 Semester I

Class 1
What is scholarly writing?
The process of scholarly writing
Inspiration: Choosing a topic &
developing a claim

WHAT
IS Scholarly
SCHOLARLY
WRITING?
What Is
Writing?
1. Implicitly directed to legislative, executive,
and/or judicial decision makers.
2. Normative (informed by a social goal) and
prescriptive (recommending a means to that
goal).

Compare: Literary criticism more interpretive


Compare: Natural & social sciences more
descriptive

Differences Between Scholarly


Writing & Practical Writing
1. Audience: Primary audience is academicians and
interested legal readers (not a judge or client or
supervising attorney).
2. Purpose: To inform or educate reader about a lawrelated claim (not predict legal result or advocate
on behalf of client).
3. Source of topic: Scholarly writing topics are
chosen. Practical legal writing comes with the
client.

Similarities Between Scholarly


Writing and Practical Writing
1. Same analytical skills: e.g., analyzing
statutes, analyzing cases, using facts,
analogy, synthesis.
2. Same writing skills: e.g., CRuPAC,
paragraphing, citations, quotations,
grammar, usage, punctuation, style.

What Makes Scholarly Legal


Writing Good?

An Original, Important, and Timely


ThesisSays something about the law
that hasnt been said before.

What Makes Scholarly Writing


Good? (contd)
2. ComprehensiveProvides sufficient
background material to enable any law-schooleducated person to understand and evaluate the
authors thesis.
3. CorrectThe factual and descriptive material
must be accurate.
4. LogicalThe presentation must be well
reasoned and well organized.
5. Clear and readable styleMust be in a
somewhat formal style that avoids both the
pompous and the colloquial.

10 Sub-Categories of Scholarly
Legal Writing
1.
2.
3.
4.
5.
6.

Case cruncher
Law reform article
Legislative note
Interdisciplinary article
Theory-fitting article
On legal profession, legal language, legal argument, or
legal education
7. Continuing a pre-existing scholarly debate
8. Legal history
9. Comparative law
10. Empirical research

Format of Scholarly Writing


I.

Introduction:

II.

Plainly states your claim (a.k.a. thesis)=


your original analysis of the legal
problem & proposed solution.
Roadmap.
Background (factual & legal)

III. Analysis
IV. Conclusion

Format (contd):
Extensive Footnotes
Three functions:
1. Authority.
2. Attribution.
3. Textual footnotes.

THEProcess
PROCESS
OF SCHOLARLY
The
of Scholarly
WRITING
Writing

See handout

Inspiration: Choosing a
Subject & Developing a Claim
1. Choose and narrow your Subject
2. Find a Claim
Next Week.
Test Your Claim
Preemption Check

CHOOSE A SUBJECT
What are you interested in?

What do you have experience in?


Ask a professor, judge, or practicing
Attorney for an idea.

Try Reading
1.
2.
3.
4.

Legal writing competition topics*


Newspapers & legal newspapers
Westlaw Highlights & Lexis Hot Topics*
Annual survey issues published in many law
reviews
5. Editors notes in casebooks
6. Law review articles mention related
unresolved issues in the conclusion or in
footnotes
7. Law blogs

NARROW YOUR SUBJECT


Think narrow & deep,
not broad & shallow
Why?
1. To be original: So much has already been
written that comments on general trends or
overviews of entire areas of law are usually
redundant.
2. This makes your research & writing more
manageable!

How to Narrow Your Subject

Determine which of the 10 subcategories of scholarly writing to fit into.

Use your imagination like a zoom lens.


Micro view

Medium view

Macro view

Categories of argument from Aristotles


Rhetoric:
Definition
Comparison
Causation
Substantiation

Ask a series of questions:


1. How can the subject be defined?
2. Is this a new subject?
3. Can the subject be divided into parts or
aspects?
4. Can the parts be grouped in any way?
5. Are there analogous subjects?
6. What are the advantages of this subject or
aspect?
7. What are the defects in this subject or aspect?

Ask a series of questions (contd):


8. What other disciplines deal with the subject
and to what end?
9. Is there controversy concerning terminology?
10. Are there disputes concerning theory?
11. Is a definitive solution possible?
12. What future events might affect the subject?
13. Who is affected?
14. Is the subject affected by political or public
pressure or vested interest?
15. Who is interested in the subject?

FIND A CLAIM
Claim = Your original analysis of the legal
problem and proposed solution.
It is enough to find one point, one new
insight, one new way of looking at a piece
of law, and organize your entire article
around that. One insight is all you
need.

Characteristics of a Good Claim


Original =
Adds something to the body of literature
on the topic.
Not enough that you came
up with idea on own.

You dont have


to be Einstein to
find an original
claim.

Characteristics of a Good Claim


(contd)
1. Important = not trivial, not obvious,
useful.
2. Timely = new & emerging issue or fresh
look at old problem.

Find Your Claim by a Critical


Reading of the Literature on Your
Subject
Ask questions as you read:
1. What is the texts thesis?
2. What are the problems the author
identifies? (Bias? Over-simplified? Are
there other ways to characterize the
problem?)
3. Are the facts presented accurately? Does
the author characterize authority properly?

4. Is the authors reasoning clear and logical?


(Does the author have an unstated reason for
his position? Could other arguments be made?)
5. Does the author make questionable
assumptions?
6. Are the authors conclusions justified by the
evidence? What other conclusions could be
reached?
7. Does the author respond to potential counteranalyses?
8. If the authors solution is adopted, what are the
likely consequences?

Read for Argument Type:


Argument from
Precedent:

Counter-Argument:

Precedent must be
followed; the material
facts are identical.

The material facts are


different.
Precedent should be
overruled.

Precedent should be
extended from an
analogous situation.

The situation is not


sufficiently analogous

There are two competing Line B is better.


lines of precedent. Line A
is better.

Interpretive Argument: Counter-Argument:


The plain meaning of
the statute should be
applied.

The statute is
ambiguous.
The plain meaning
conflicts with
legislative intent or
creates an absurd
result.
The language must
be read in context.

Normative Argument:
Morality requires this
result.

Counter-Argument:
The result is not moral.

Good social policy


requires this result.

Society will not


benefit.
The harm will
outweigh the benefit.

Economic concerns
support this result.

Economic concerns do
not support this result.

Justice between the


parties justifies this
result.

Justice between the


parties requires the
opposite result.

Institutional Argument:

Counter-Argument:

Courts are best-equipped to


make this type of decision.

No, the legislature is.

This is an area where the state Federal law preempts state


is free to make law.
law.
This rule would open the
floodgates

Few litigants could invoke


this rule.
Gates already open.
There cant be too much
justice.

Courts/juries have difficulty


with this vague standard.

Courts/juries use standards


like this all the time.

This is a bright-line rule, easy


to apply.

The rule is inflexible.


Draw the line elsewhere.

This rule creates a slippery


slope.

The rule is narrow and precise.

Read for Jurisprudence: imagine how


different approaches would affect the
outcome:
1. Law and Economics
2. Formalism
3. Legal Realism
4. Legal Process
5. Fundamental Rights
6. Critical Legal Studies
7. Feminist Jurisprudence

Probe the Context


Examine the Legal Context:
Legislation: Look at
Purpose of statute.
Predecessor statute.
Other legislative activity on subject.
Court decisions:
Look at lower court decisions.
Compare your case to other cases raising
analogous issues.
Probe the Broader Context: Do history, sociology,
economics, psychology, etc. illuminate the subject?

Sample Reading Journal


Citation to source in
Bluebook format

Summary of important
parts of source with
pincites.

Your reactions from


critically reading the
text, plus your questions
and ideas for your thesis

......
......

......
......

Tips for Your Reading Journal


a. In your summary of the source, use
quotation marks for 7+ words from the
author or for memorable language.
(Helps avoid accidental plagiarism).
b. Arrange your reading journal entries by
type of source (e.g., statutes, cases, law
reviews) or issue.

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