My Approach to Legal Scholarship

I've been writing the Random Law Review posts for a few months now, and I thought I might share a little of my approach to legal scholarship. These are some of the things I think about when writing a new article:

Be Original This sounds obvious, but its amazing how many similar articles and student notes will be published every year about last year's "monumental Supreme Court case" (which, itself, will probably be forgotten or overshadowed in a few years) My first law review publication was in the same vein, but I like to think I've moved beyond such things. No one needs to read another attack/justification for abortion, capital punishment, or drug legalization. What I told my students at Detroit Mercy is that addressing these issues is fine, but you have to dig deep for a new angle or aspect of the larger question that hasn't yet been exhaustively picked over in the thousands of new articles that are published every year. I confess that sometimes my drive towards originality leads to writing about the obscure--like Canada's blasphemy law, the Nebraska Constitution's religious freedom guarantee, or civil liberties groups in Canada. Still, I feel that I'm at least contributing to human knowledge instead of repeating things that have already been said before. The nice benefit to choosing subjects that haven't been picked over repeatedly is that there's usually far less material to work with, meaning that you can feel like you've done comprehensive research.

Embrace Footnotes, But Don't Be Stupid Every important or non-obvious factual assertion made in the text should be supported by a citation in the footnotes. This is one of the things I really like about legal scholarship and that I find annoying when I read scholarship in other disciplines where there's only a bibliography at the back or citations for quotations. It's important to be able to judge how much support there is for an assertion, and quality citation practices makes this possible. Of course, things that are obvious (Barack Obama is President) or not important (Major League Baseball's definition of a "relief pitcher" in an article about sports injuries) shouldn't be the subject of citations. My next point is one that's controversial in legal writing, but I think footnotes are a great place to expound upon points made in the text while still allowing an argument to flow concisely. In other words, you can have more fun in footnotes and talk about some things that are interesting but perhaps not directly relevant to the main course of an argument.

Publish It, It Doesn't Matter Where Face it, people don't often pick up law journals and flip through to see what's interesting--people read legal scholarship because they need to, which means they're finding your article because they've done a keyword search in Westlaw or seen your article cited in another article. This means that, as long as your article is available online, it's just as easy to find whether it's published in a major school's general law journal or a smaller school's speciality law journal. There's a handful of prestigious law journals among the 400+ out there where an article is likely to be read more and could be a big career boost, but apart from that I don't think it really matters which specific journal an article is published in.

Do Your Homework, But Get Something Written Thorough research is necessary so you can make sure your points are plausible and original, but it's easy to get bogged down in months of research for little real gain. You have to constantly make sure you're getting something out of continuing research--if not, start writing, send the article out, and then while you're waiting several weeks for a response you can keep researching and make any modifications to the article you need to in the year or more it'll take to be actually published.