Writing a Student Article
Based on Eugene Volokh,
Academic Legal Writing: Law
Review Articles, Student
Notes, and Seminar Papers
Note to Presenters

This material is just a starting point
that you might find useful.

It has more slides that you’ll want to
use—just choose the ones you like.

Update these as you please, adding,
deleting, or modifying various items.
Note to Presenters (cont.)


Check the “Notes” fields on many of
these slides, for instance by printing
out the slides with the “Print What”
option set to “Notes Pages.”
These notes give you tips on what you
might say as you’re presenting the
slide.
Note to Presenters (cont.)

You might give this talk in several
phases: For instance,



the material on finding a claim before
summer break,
the material on writing and structure after,
and
the material on cite-checking in a
separate talk.
Note to Presenters (cont.)

For more information on each slide, see the
book page noted in the heading.

Encourage listeners to also refer to that
page if they have more questions.

Before giving this presentation, refresh your
recollection of the book by skimming the
referenced page. The slide text only
contains a brief summary of the point—it’s
up to you to provide more details orally.
Note to Presenters (cont.)

The slides usually give general points.

Definitely include concrete illustrations,
but I find they’re best presented orally.

The book gives plenty of examples,
but you might also come up with your
own.
Step 1: Find Problem; Possible
Sources (p. 11)
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Cases you’ve read for class that leave
things unresolved.
Class discussions that intrigued you.
Questions in casebooks.
New S. Ct. cases that create/leave
open issues.
Advice from faculty members.
Westlaw Bulletin (WLB) and similar
databases.
http://www.lawtopic.org.
Step 2: Do Research (p. 63)

Identify sample cases and incidents.

Get the big picture: Read a short book
on the subject (e.g., Concepts and
Insights, Nutshell, Understanding).

Get the details: Read treatise(s).

Get the details: Fully read all the cases
and statutory provisions that are relevant.

Find other articles (literature search).
Step 3: Build Test Suite (p. 19)

The test suite will help you identify sound
solution to your problem.

Problem: When should religious
objectors get exemptions from
paternalistic laws?

You came up with problem because you
were outraged about people being denied
religious exemptions from peyote bans.
Include in Test Suite (p. 22)

Don’t just think about how the proposal
affects peyote bans; consider a
broader set of test cases:
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bans on assisted suicide;
bans on dueling;
bans on drinking poison or handling
snakes;
motorcycle helmet laws.
Creating Test Suite (p. 22)
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Plausible cases (good to draw them from
real incidents).
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Cases that track the famous precedents.
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Cases that you know are hard cases for
your thesis.

Cases that yield different bottom-line results.
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Cases involving issues that appeal to
different political perspectives.
Step 4: Identify Claim (p. 9)
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Claim = solution to your problem.

Come up with claim that is
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sound = yields results that you think are
right when applied to your test suite;
novel;
nonobvious;
useful.
Soundness (p. 20)

Applying your proposal to your test suite
cases might suggest that the proposal is:
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mistaken, and needs changing or narrowing;
too vague, and needs clarifying;
produces unexpected insights that are worth
explaining;
reaches the right results, which are worth
highlighting.
Novelty (p. 13)

Your claim should be a novel solution to
problem.

New to everyone, not just to you: You’re trying
to add to the body of professional knowledge.

Best to have a novel claim.

But a novel justification will do, too.

Look for special nuances present in some
situations within your broad topic—nuances that
let you say “the rule should be X in these cases,
but Y in those.”
Nonobviousness (p. 15)

Your proposal needs to add something
new to our knowledge of a field
(novelty).

But it also has to be something that
isn’t that easy to figure out.

Example: Claims about new statutes
are often novel, but they might be
obvious.
Utility (p. 15)

Maximize the usefulness of your
proposal:
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Don’t limit yourself to one state.

Discuss the issue, not a particular case.

Try to make claims that are useful to
lawyers, judges, and academics.

Try to make politically plausible claims.
Making Article More Useful (p.
15)

Don’t fight binding Supreme Court
precedent.

Instead, focus on questions that the
precedent creates or leaves unanswered.

Apply argument to other jurisdictions (e.g.,
state constitutions, not just the federal one).
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Incorporate prescriptive implications (what
should be done) of your descriptive findings
(what is true or what has happened).
You Might Want to Avoid (p.
28)
1.
Articles that pose problem without solving it.
2.
Articles that merely explain what the law is.
3.
Case notes. Discuss issue, not case.
4.
Responses to others’ works. Discuss
issue, not someone else’s article.
5.
Single-state articles.
6.
Topics that Court or Congress may visit
soon, and thus preempt.
Step 5: Write Introduction (p.
31)

The most important part of the article:
1.
2.
3.
Persuades some people to read further.
Summarizes claim for those who won’t
read further.
Provides a frame through which those
who do read further will interpret what
follows.
Writing Introduction (p. 31)

Write first, then rewrite after article is done.
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Show there’s a problem.

Do this with concrete examples.

Briefly state the claim.

Briefly show novelty, nonobviousness, utility,
soundness.

Do this quickly and forcefully—“cut to the
chase.”
Step 6: Write Background
Explanation Section (p. 34)

Keep it as short as possible.

Don’t describe each precedent; synthesize
them.
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Avoid unnecessary historical discussion.

Focus most of your article on the value
you’re adding to the field,
-
not on a restatement of what courts or
commentators have already said, which
is what such sections usually provide.
Step 7: Prove Your Claim (p.
35)

Prove that the result is the right under the
statute or the caselaw and that it makes
good policy sense.

Use concrete examples.
-
The test suite is a good source of these.

Turn problems to your advantage, rather
than just ignoring them.

Look for unexpected implications of your
analysis.
Turning Problems to Your
Advantage (p. 36)
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Don’t say “this is the only interpretation of
the [cases / text / facts].”
-
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Say “this is the best interpretation,
because . . . .”
Don’t say “this proposal has no costs.”
-
Say “this does cause some problems /
sacrifice the government interest in some
measure / create some uncertainty, but
that’s OK because . . . .”
More on Problems (p. 36)
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Confronting the problems can lead you to
refine your claim,
-
thus making more novel, nonobvious,
and useful.

Acknowledging uncertainty can make your
argument more persuasive.
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Acknowledging uncertainty can make you
seem more sensible and worldly.
Step 8: Connect to Broader
Issues (p. 38)

Import ideas from related fields
(e.g., borrow from free speech law in discussing
what right-to-bear-arms law should look like)

Import ideas from broader fields
(e.g., borrow from broad theories of rights or of
constitutional interpretation)
Connecting (cont.)
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Export to related fields insights drawn
from your analysis
(e.g., how does your opinion on waiting periods for
gun purchases bear on waiting periods for
abortions, voting, parades, etc.?)

Export to broader fields
(e.g., what do the problems with applying strict
scrutiny here show about the weaknesses of strict
scrutiny generally?)
Connecting (cont.)
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Connect to subsidiary questions
(e.g., what are the procedural implications of your
substantive proposal?).

Ask what practical implications your
proposal will have
(e.g., how will legislatures react if your constitutional
proposal is implemented?)
Step 9: Writing (p. 69)
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Your readers are very busy; it’s much
easier for them to put your article down
than to keep reading it.
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Therefore, avoid:
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redundancy;
legalese;
surplusage and platitudes;
meandering paragraphs and sections.
Better Writing Through Editing
(p. 69)
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“Nothing is ever written—it is rewritten.”

Go through many drafts.
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Edit on paper.

In the first draft, try to find at least one correction or
improvement for each paragraph.

If you need to reread something to understand it,
rewrite it.

Finish first draft quickly, so you can do many more.
Using Other Editors Effectively
(p. 72)

Ask friends to read the piece and give you
editing suggestions.

Give your professor a rough draft that
you’ve already closely proofread.

Give the draft to the professor as early as
possible.

Treat each editing comment as a global
suggestion.
Summary
1.
2.
3.
4.
5.
6.
7.
8.
9.
Find a problem.
Do your research.
Create a test suite.
Identify your claim.
Write Introduction.
Write background explanation section.
Prove your claim.
Connect to broader issues.
Edit, edit, edit.