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
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
Thesis—Says something about the law
that hasn’t been said before.
What Makes Scholarly Writing
Good? (cont’d)
2. Comprehensive—Provides sufficient
background material to enable any law-schooleducated person to understand and evaluate
the author’s thesis.
3. Correct—The factual and descriptive material
must be accurate.
4. Logical—The presentation must be well
reasoned and well organized.
5. Clear and readable style—Must 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 (cont’d):
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 Aristotle’s
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 (cont’d):
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 don’t have
to be Einstein
to find an
original claim.
Characteristics of a Good Claim
(cont’d)
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 text’s 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 author’s 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 author’s conclusions justified by the
evidence? What other conclusions could be
reached?
7. Does the author respond to potential counteranalyses?
8. If the author’s solution is adopted, what are
the likely consequences?
Read for Argument Type:
Argument from
Precedent:
Precedent must be
followed; the material
facts are identical.
Counter-Argument:
• The material facts are
different.
• Precedent should be
overruled.
The situation is not
sufficiently analogous
Precedent should be
extended from an
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 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.
Good social policy
requires this result.
Economic concerns
support this result.
Justice between the
parties justifies this
result.
Counter-Argument:
The result is not moral.
• Society will not
benefit.
• The harm will
outweigh the benefit.
Economic concerns do
not support this result.
Justice between the
parties requires the
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 can’t 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
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.