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
WHAT IS Scholarly
SCHOLARLY Writing?
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

law-related 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-school-
educated 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. Case cruncher
2. Law reform article
3. Legislative note
4. Interdisciplinary article
5. Theory-fitting article
6. 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:
Plainly states your claim (a.k.a. thesis)=
your original analysis of the legal
problem & proposed solution.
Roadmap.
II. Background (factual & legal)
III. Analysis
IV. Conclusion
 Format (contd):
Extensive Footnotes
Three functions:
1. Authority.
2. Attribution.
3. Textual footnotes.
 THEProcess
The PROCESS OF SCHOLARLY
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. Legal writing competition topics*

2. Newspapers & legal newspapers
3. Westlaw Highlights & Lexis Hot Topics*
4. 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 sub-

categories 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 counter-
analyses?
8. If the authors solution is adopted, what are
the likely consequences?
 Read for Argument Type:
Argument from Counter-Argument:
Precedent:
Precedent must be The material facts are
followed; the material different.
facts are identical. Precedent should be
overruled.
Precedent should be The situation is not
extended from an sufficiently analogous
analogous situation.
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 is
the statute should be ambiguous.
applied. The plain meaning
conflicts with
legislative intent or
creates an absurd
result.
The language must
be read in context.
Normative Argument: Counter-Argument:
Morality requires this The result is not moral.
result.
Good social policy Society will not
requires this result. benefit.
The harm will
outweigh the benefit.
Economic concerns Economic concerns do
support this result. not support this result.
Justice between the Justice between the
parties justifies this parties requires the
result. opposite result.
Institutional Argument:
Courts are best-equipped to
make this type of decision.
This is an area where the state
is free to make law.
This rule would open the
floodgates
Courts/juries have difficulty
with this vague standard.
This is a bright-line rule, easy
to apply.
This rule creates a slippery
slope.
Counter-Argument:
No, the legislature is.
Federal law preempts state
law.
Few litigants could invoke
this rule.
Gates already open.
There cant be too much
justice.
Courts/juries use standards
like this all the time.
The rule is inflexible.
Draw the line elsewhere.
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 Your reactions from
parts of source with critically reading the
pincites. 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.