Transcript Thesis Writing for Law Students
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”
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
client.” : Scholarly writing topics are chosen. Practical legal writing “comes with the
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-school educated 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 —
pompous and the colloquial.
Must be in a somewhat formal style that avoids both the
10 Sub-Categories of Scholarly Legal Writing
1.
2.
3.
4.
Case cruncher Law reform article Legislative note Interdisciplinary article 5.
6.
Theory-fitting article On legal profession, legal language, legal argument, or legal education Continuing a pre-existing scholarly debate 7.
8.
Legal history 9.
Comparative law 10. Empirical research
Format of Scholarly Writing
I.
II.
III.
Introduction: • Plainly states your
claim (a.k.a. thesis)= your original analysis of the legal problem & proposed solution.
• Roadmap.
Background (factual & legal) Analysis IV. Conclusion
Format (cont’d):
Extensive Footnotes
Three functions: 1. Authority.
2. Attribution.
3. Textual footnotes.
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 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 counter analyses?
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.
Precedent should be extended from an analogous situation.
Counter-Argument:
• The material facts are different.
• Precedent should be overruled.
The situation is not sufficiently analogous There are two competing lines of precedent. Line A is better.
Line B 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.
Counter-Argument:
No, the legislature is.
This is an area where the state is free to make law.
This rule would “open the floodgates” Federal law preempts state law.
• Few litigants could invoke this rule.
• Gates already open.
• There can’t be too much justice.
Courts/juries have difficulty with this vague standard.
This is a bright-line rule, easy to apply.
This rule creates a “slippery slope.” 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
Summary of important parts of source with pincites.
. . . . . . . . . . . .
Citation to source in
Bluebook
format 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.