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By Barbara Tyler,
Legal Writing Professor Emeritus and former Director, Legal Writing, Research and Advocacy Program
Whether you are writing a scholarly article for Law Review, the Journal of Law and Health, or for a class, a well-written article can do more than get you just a good grade. Your article can get you a position on the editorial board, publication credit, and even a judicial clerkship or other coveted job. I hope to give you some advice based upon my own writing experiences. I have used many of these techniques and find them useful.
I often use the media to help me choose what interests me. Whether it is CNN, Nightline, the New York Times, or other media, there are always topical and interesting and current things in the news that pique my curiosity. (And do be aware that you may cite these programs or sources in your paper.) You must choose a topic that you care about, because you will spend many months of your life researching it and reading about it. Most ideas can have a legal spin put on them-from drug companies that sell drugs direct to consumers on TV-to practicing medicine on the Internet.
Choose a problem that you want to research and one that your faculty advisor thinks can lead to thought-provoking or novel treatments. As you begin to research that problem, you may find a tack to take on it that is new. Be open to changing your ideas if your research takes you to more interesting or innovative areas.
One of the first things many savvy researchers do when faced with new issues is to read a law review article on the subject. That is my favorite way of learning about a new area of law. You may tell a lot about the focus that law review articles have on one element of the topic. Are all the articles liberal? Conservative? Do you wish to take a different approach to an issue? For example, one student who found that all the articles on the Fourth Amendment violation by use of thermal imagers found that all the articles focused on the plaintiffs' rights. This author chose to write in favor of the police.
Then, as you digest information, you must figure out what argument you wish to make. And state it in a concise and coherent way. Remember, a scholarly article must advocate, not just educate. If the Journal or Law Review makes you do an exhaustive search to make certain your article is not preempted by another, then you will also gain a plethora of attributable works. Use them.
As you formulate a claim, design a test; then think about what you have learned in light of the test and the various test cases.
CAVEAT PREEMPTIVE SEARCHES Don't jettison an idea simply because you find a recent law review article on the subject. Can you relate or investigate the problem in just Ohio? Is it a problem that can be investigated in a different venue-or state? Can you find a different solution to the problem? Is there another approach to arguing the ramifications? Are there different parties' rights involved and can you argue a constitutional provision applies? Do you think differently than the other author's article on point? If so, then you can write an article taking a different stand or solving the problem in a different way.
Whatever your topic you need to vary your legal research and method based on the subject matter. No one plan will do for one-size-fits all research. The subject matter and availability of your resources is always a consideration in research.
The golden rule of Research is "Find research someone else has already done, use it, rely on it, borrow from it, and update it to the present day."(1) I add my own caveat- Cite it correctly and accurately.
My other rule is quite important. Document everything you do. Or you will be faced with a situation in which you found the perfect article, comment or essay, only to have lost it because you did not write down or print out the citation to it. Keep a Research Journal with you at all times and collect cites-or you may be very sorry.
Generally you will find that you need to do the following four steps in researching:(2)
Step One: Find general background sources covering the topic you are reading about to (1) gain a deep and clear overview of the area of law, and (2) begin to collect cases, statutes, articles and other pertinent data. (I always use law review articles to start)
Step Two: Find specific background sources covering your topic and read those sources in order to (1) obtain a more critical analysis of the topic, (2) find more law or information on point, (3) obtain some ideas for arguments favoring your thesis, and (4) obtain secondary authority you can and should cite in your article.
Step Three: Figure out where your authorities stopped researching (When did they go to press?) and then update the topic with newspapers, other cases, and current articles on point to bring it up to date.
Step Four: Shepardize all cases, statutes, law review articles and any other information you can update this way. Thus, you will not only up date but find more recent cases, statutes, and articles.
I am a stickler for introductions. They set the tone for your work. In addition, the introduction has several important functions. It must state your claim. It must frame the claim clearly. Lastly, it must organize the contents of your paper for the reader.
The introduction must entice me to continue to read on, or they fail in their task. The role of storytelling and narrative is often overlooked in writing an introduction. But it should not be. Anyone who spends so much time crafting a lengthy article should begin it with creativity and panache. Tell me a story about people, or injustice or whatever you are interested in, but make me want to read on.
Readers must be excited about your topic or they will not read on to the end of the piece.
Which of these introductions makes you want to read on?
"John Brown's son was dying. The doctors had no idea what the child suffered from. Day by day, his small limbs wasted away more and more. His muscles became weaker. The family was devastated. In an effort to find out what his son had, Brown surfed the internet describing the disease. Finally, one day he was contacted by a person who described their child who suffered from the same symptoms. Their child had a form of myasthenia gravis-a wasting disease which attacks muscle control. "
"John Brown's son had a rare condition known as myasthenia gravis. Brown diagnosed the disease himself after surfing on the internet."
Your article is designed to make the reader think, "That's a great idea and one I had not thought about. I need to read this." The task you must accomplish is to set out the problem concretely and show that it is one that needs to be solved. Give and use specific examples. If you have none-then use a hypothetical to illustrate how the facts color the situation. In the introduction you want to set out a very simple and attenuated version of your thesis. The clearer and shorter the better. As the Bauhaus theory of architecture stated, "Less is more."
Your perspective and how you view the issue is very important. If you are writing about the Fourth Amendment and searches conducted with a "nightvision" camera(3), your introduction will differ and be slanted to favor the party you argue positively for, depending on whether you favor police use or non-use of this tool. If you favor police use of the thermal imaging camera, then I suspect you will stress the importance of winning the war on drugs and taking down home marijuana and other illegal plant gardens. On the other hand, if you choose to support arguments against the imager's use without a warrant, you may wish to tell stories about innocent victims and the few criminals brought to justice causing the rights of many other innocent individuals to suffer.
The end of your Introduction should clearly and succinctly state the way you will organize your paper into its parts. Thus, at the end of the Introduction say: "Part Two will give background information on the state of the technology of the millivision camera. Part Three will educate the reader to the arguments and case law in the federal courts. Part Four will investigate how the Circuits are split on the issue of warrants. Part Five will argue that the camera can see "intimate details" and as such should not be used. Part Five will analyze solutions and posit that the courts should require a warrant. Part Six is the Conclusion." You must actually divide the article into its discrete parts for the reader.
You need not follow any tried and true format for your paper. Many papers do follow a certain pat format as follows:
II. Historical Background of the Claim and Legal Doctrines
III. Summaries of precedents (Pro and Con)
IV. Proving your argument (for a rich analysis connect to broader issues and novel ideas)
This is template for an often used format. You can devise your own format and be innovative-or simply pattern yours in the same manner that others are organized.
3. Thermal imagers are often referred to as FLIR technology. These cameras can read heat signatures of objects and people, and are often used in finding and closing greenhouses found in homes for growing marijuana.
By Barbara Tyler, Legal Writing Professor Emeritus and former Director, Legal Writing, Research and Advocacy Program
If your paper is not selected for publication by the journal or law review, submit it elsewhere and get it published. If you write an article for a seminar or for L860 credit, and your advisor indicates it is of publishable quality, place it and get it published. Articles by students, even short ones, often find homes in law reviews elsewhere. Over the last five years of advising students on L860 projects and teaching Scholarly Writing, I have seen no fewer than ten students send their work out and get accepted in journals all over the country, from University of Florida (immigration) to Sports Lawyer (NFL signing bonus) to Albany Law Journal (The FDA and drug approval). This effort paid off for many of these students since they received job offers well before graduation.
Here are some tips for getting your article published:
June 19, 2000
University of Louisville
Louisville, Kentucky, 40292
Dear Articles Editor:
The article that I have just completed seems to fit nicely into the social justice and public policy themes of your newly created Brandeis Law Review. Enclosed is a timely article which tells the personal stories of several families who are either Holocaust survivors themselves, or whose relatives were victims of the Holocaust and whose art was stolen by the Nazis in World War II. This plundered art has now appeared in some of the United States most prestigious public museums. (SUM UP THE STORY)
The Article deplores this fact and decries the lack of legal grounds available in the United States to claimants. Litigation costs in recovering stolen art are staggering. The newly formed Holocaust Assets Commission Act may be the only hope available for return of family owned art to its original owners.
(GIVE YOUR TAKE ON THE ISSUE)
I have published several other articles in the medical/legal field as well as case notes on current cases and am a Registered Nurse as well as a Legal Writing Professor at Cleveland Marshall College of Law. Indiana Law Review is publishing my article dealing with the practice of medicine on the Internet this summer. (GIVE SOME OF YOUR BACKGROUND QUALIFICATIONS-OR TELL WHAT INTRIGUED YOU ABOUT THE SUBJECT)
I believe this article and its advocacy stance for justice for Holocaust survivors and their families would fit very nicely into your volume. Thank you for your consideration. The article is available on disc using Word Perfect. You may call me at __________. Or email me at________________.
(TELL THEM HOW TO CONTACT YOU)
Warmest personal regards,