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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”. WHAT IS SCHOLARLY WRITING?. What Is Scholarly Writing?.

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Thesis Writing for Law Students

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  1. Thesis Writing for Law Students Prof. Gary Chodorow BFSU 2007-2008 Semester I

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

  3. WHAT IS SCHOLARLY WRITING? What Is Scholarly Writing? • Implicitly directed to legislative, executive, and/or judicial decision makers. • 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

  4. Differences Between Scholarly Writing & “Practical” Writing • Audience: Primary audience is academicians and interested legal readers (not a judge or client or supervising attorney). • 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.”

  5. Similarities Between Scholarly Writing and “Practical Writing” • Same analytical skills: e.g., analyzing statutes, analyzing cases, using facts, analogy, synthesis. • Same writing skills: e.g., CRuPAC, paragraphing, citations, quotations, grammar, usage, punctuation, style.

  6. What Makes Scholarly Legal Writing Good? • An Original, Important, and Timely Thesis—Says something about the law that hasn’t been said before.

  7. What Makes Scholarly Writing Good? (cont’d) • Comprehensive—Provides sufficient background material to enable any law-school-educated person to understand and evaluate the author’s thesis. • Correct—The factual and descriptive material must be accurate. • Logical—The presentation must be well reasoned and well organized. • Clear and readable style—Must be in a somewhat formal style that avoids both the pompous and the colloquial.

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

  9. Format of Scholarly Writing • Introduction: • Plainly states your claim (a.k.a. thesis)= your original analysis of the legal problem & proposed solution. • Roadmap. • Background (factual & legal) • Analysis • Conclusion

  10. Format (cont’d): Extensive Footnotes Three functions: • Authority. • Attribution. • Textual footnotes.

  11. THE PROCESS OF SCHOLARLY WRITING The Process of Scholarly Writing See handout

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

  13. CHOOSE A SUBJECT What are you interested in?

  14. What do you have experience in? Ask a professor, judge, or practicing Attorney for an idea.

  15. Try Reading… • Legal writing competition topics* • Newspapers & legal newspapers • Westlaw Highlights & Lexis Hot Topics* • Annual survey issues published in many law reviews • Editors’ notes in casebooks • Law review articles mention related unresolved issues in the conclusion or in footnotes • Law blogs

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

  17. How to Narrow Your Subject • Determine which of the 10 sub-categories of scholarly writing to fit into.

  18. Use your imagination like a zoom lens. Micro view Medium view Macro view

  19. Categories of argument from Aristotle’s Rhetoric: • Definition • Comparison • Causation • Substantiation

  20. Ask a series of questions: • How can the subject be defined? • Is this a new subject? • Can the subject be divided into parts or aspects? • Can the parts be grouped in any way? • Are there analogous subjects?’ • What are the advantages of this subject or aspect? • What are the defects in this subject or aspect?

  21. Ask a series of questions (cont’d): • What other disciplines deal with the subject and to what end? • Is there controversy concerning terminology? • Are there disputes concerning theory? • Is a definitive solution possible? • What future events might affect the subject? • Who is affected? • Is the subject affected by political or public pressure or vested interest? • Who is interested in the subject?

  22. 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.”

  23. 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.

  24. You don’t have to be Einstein to find an original claim.

  25. Characteristics of a Good Claim (cont’d) • Important = not trivial, not obvious, useful. • Timely = new & emerging issue or fresh look at old problem.

  26. Find Your Claim by a Critical Reading of the Literature on Your Subject Ask questions as you read: • What is the text’s thesis? • What are the problems the author identifies? (Bias? Over-simplified? Are there other ways to characterize the problem?) • Are the facts presented accurately? Does the author characterize authority properly?

  27. Is the author’s reasoning clear and logical? (Does the author have an unstated reason for his position? Could other arguments be made?) • Does the author make questionable assumptions? • Are the author’s conclusions justified by the evidence? What other conclusions could be reached? • Does the author respond to potential counter-analyses? • If the author’s solution is adopted, what are the likely consequences?

  28. Read for Argument Type:

  29. Read for Jurisprudence: imagine how different approaches would affect the outcome: • Law and Economics • Formalism • Legal Realism • Legal Process • Fundamental Rights • Critical Legal Studies • Feminist Jurisprudence

  30. 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?

  31. Sample Reading Journal Citation to source in Bluebook format

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

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