Write First, Research Second?:
Over at The Glom, Gordon Smith has a post on how he writes law review articles:
Assuming no one has written on the topic in a way that either preempts my idea or that dramatically changes what I want to say, I then put the literature away and write the article I wanted to write, usually without any footnotes. When I'm done, I go back and add the footnotes so it looks presentable and that I have cited or discussed the most important literature.
There are pros and cons to this method, I think. It doesn't work if you don't already know the field pretty well. It also doesn't work if you're responding to a body of scholarship or writing in areas that have been covered to death by a lot of other people. There's also a risk that you'll end up having to give up and throw the intro away if it turns out you're not saying anything new. But I write that way largely for the reason Gordon suggests he does: It seems to me that the best way to make sure you're saying something original is to come up with the basic idea on your own (or as much "on your own" as you can). That's the idea, anyway.
I'm curious, for other law profs and law prof wannabes -- how do you write your articles? In the same way, or in a very different way?
I usually start writing before have done the research. (True confessions.) This is the method Richard Epstein taught me while I was at Chicago. I sketch out my thoughts on a subject, then use the research to refine or develop those thoughts. It sounds terribly inefficient, but it prevents me from being overly influenced by what others have written. Anyway, using this method means that most of my notes are put right into the draft of the paper, which I edit mercilessly as I get closer to publication.I do the same thing. I usually come up with an idea and sketch out the introduction of the article, which ends up being a 3-4 page summary of what the article will say. I usually don't do very much specific research into the literature until that sample introduction is done. Then, once the intro is sketched out, I make sure I know all the literature and know what others have said.
Assuming no one has written on the topic in a way that either preempts my idea or that dramatically changes what I want to say, I then put the literature away and write the article I wanted to write, usually without any footnotes. When I'm done, I go back and add the footnotes so it looks presentable and that I have cited or discussed the most important literature.
There are pros and cons to this method, I think. It doesn't work if you don't already know the field pretty well. It also doesn't work if you're responding to a body of scholarship or writing in areas that have been covered to death by a lot of other people. There's also a risk that you'll end up having to give up and throw the intro away if it turns out you're not saying anything new. But I write that way largely for the reason Gordon suggests he does: It seems to me that the best way to make sure you're saying something original is to come up with the basic idea on your own (or as much "on your own" as you can). That's the idea, anyway.
I'm curious, for other law profs and law prof wannabes -- how do you write your articles? In the same way, or in a very different way?
After I identify a topic (about which I usually know a great deal in an unorganized way), I do specific research, create notes of both research and my insights along the way (I dictate the notes and my secretary types them up on 1/2 sheets of paper), shuffle, reshuffle, and reshuffle again to get the ideas into the order I want, add more notes with my own insights (lots, of course). Sometimes I discard an entire line of research. Often, I have to add several items to my "read and note" pile. When I've got 3-5 hundred notes shuffled. I divide the notes into sections/paragraphs. I try to get the entire article organized in my mind and in the notes. This can take several months.
Then I pick up a section/paragraph, scan the cards, mentally reorganize if needed and dictate the section with footnoting as I go. That process yields a first draft in about two weeks.
Second draft is basically editing by me. Takes another week.
Third draft is by local LR student who catches gross brainos and typos, formats it like a L. Rev. article, and -- VIP -- puts the fns in "Bluebook" format (I won't mess with this crap). Two weeks.
Then off it goes to the selected Journals.
Funny, I look at it 180 degrees the other way. A law review article is an argument about what should be -- the primary emphasis is on normative argument. In contrast, a legal brief is an argument about what is: You can't write the brief until you have first mastered all the authorities and figured out the best way to present them.
Because I write in areas where there is no law yet.
Now, I know nothing about setting up a nuclear power plant, so if I had to write an article about it, I'd have to do a bunch of research first. We're talking about people writing articles regarding topics about which they know quite a lot. Otherwise you'd have to do the research first to know what you're talking about.
We're not talking about writing a 150 page article, guessing as to the facts, then going out and finding the facts, learning you're wholly incorrect, and throwing all 150 pages in the trashcan.
I write briefs this way. So much of the law is based on analogy and syllogism that I have a decent idea of what the law ought to be. Once I have that sketched out, I look at what the cases in my jurisdiction say. If they're on point and support my conclusion, I cite them authoritatively and move on. If they aren't on point, I cite them, explain why they're wrong and why my situation is more like another situation and then move on. If they're silent, I'll see what the other courts in the country say.
It's actually served me well.
--PtM
Now I'm reading cases, scholarly articles, etc., to fill in the details that needed filling in and support the points that needed supporting. Eventually, I'll also revise to make the points stylistically and rhetorically more effective.
Just what are the standards for legal academic writing? What are the quality controls? Who enforces them? How? How are they corrected? Policed?
If all else fails, Gordon can get a job as a golf writer. Research is always optional in that branch of sports writing.
Cheers,
Bill
Me too. With only a couple of exceptions, I wrote about problems that interested me and that I wasn't sure about how to answer. What's the fun in writing if you know how it's going to come out? Furthermore, a lot of legal writing these days reads like partisan political tripe. If you view your role in life as pulling for your team, you aren't going to say anything new, and there's a real risk of shading the evidence (to put it politely). "Law office history" isn't a term of praise, and the problem it refers to isn't limited to history.
Sincerely,
W. Brennan
Steve
Unfortunatley, I often have a sense (and know from experience) that this is how most JOURNALISTS do their work. They have an idea for an article, and then they go looking for quotes and "facts" to support their idea.
Being a lawyer is an outcome-directed job. All legal writing (advocacy, anyway) is directed towards a particular outcome.
I guess it's boring to say that I go back and forth in writing a brief -- draft, research, draft, research. If you don't have a sense of your argument, you can't know how to do the research. If you don't do the research, you can't know what fact issues are relevant to your argument.
What was just described is the creation of an idea followed by searching for evidences to support that idea, burying or refuting evidence that one does not like, and inevitably reaching the conclusion desired in the first place.
The scientific approach demands that one sift the evidence with an open mind, weigh evidence according to its intrinsic merit, then finally express the idea presented by the data regardless of the interests of the writer.
Writing in the scientific manner permits finding new ideas. It would seem that legal academic writing is about the most unscientific approach to life possible.
If you start without a thesis, how do you select what evidence to look at?
I did say start with an open mind, not a blank mind. It is important to not have one's ideas so fixed before the research begins that how one finds and assesses the evidences is inherently biased.
Theses, like hypotheses, and theories are not just hunches or they way someone would like to view the world. They too are based on a hopefully dispassionate view of the evidence.
The problem with the write the paper first approach (I've watched my colleagues do it in medicine too) is that for many off the cuff cited 'facts' that appear in a draft, it is all too easy to cherry pick some article with a title that sounds plausible. Shower your paper with enough references and it will look impressive. When I actually follow up on references because it seems to imply a new knowledge mcnugget that might be interesting to learn more on I find that even in scientific writing that the reference is often bogus or irrelevant to the sentence in which it is cited.
My only surprise here is that an apparent real academic under his real name (Orin) admits that he bastardizes his writing by researching references only after the paper is written.
This approach works in most fields, including engineering.
And as Smith points out, you don't get overly influenced by other people's ideas by doing the research first. Nor do you get so discouraged by the fact that a few other people have written on the subject that you give up your article. Don't - unless you have absolutely no new insight into the problem (or are presenting your ideas in a venue where the entire concept is new).