Defining Legal Academic Writing
Webster’s Dictionary defines academic writing as "basic elements, structure, or procedure." Combined with the word legal, we now have "basic elements, structure, or procedure of a legal matter or specific area of the law." Essentially, this is the way legal information is expressed in writing. Academic legal writing describes principles, theories, and concepts in a thorough manner. It does not advocate for a particular outcome in a case. Instead of telling the reader why this or that course of action should be taken, it explains why and how that decision must be made. While it is similar in style to other types of academic writing, it is much more specific, detailed, and focused on the law.
Academic legal writing is an essential part of legal education. From first-year memos to final year law review articles, academic legal writing must be fully coherent, thoroughly researched, and properly referenced. Mastering this type of writing is crucial to your education as a law student. It will be the key to both getting published and getting hired.
While academic legal writing is focused on teaching you about the law and the scope of your knowledge, it is also focused on teaching you the ends and outs of legal advocacy. In other words, academic legal writing serves two main purposes in academic legal writing. One of the biggest purposes of academic legal writing is to persuade and inform the reader. Unlike other forms of writing that simply inform, this type of academic legal writing is directly related to assessing some type of outcome. Capitalising on the knowledge you have developed throughout your legal education , academic legal writing draws from your understanding of the law. It asks you to interpret the law and apply its principles to a hypothetical factual situation. The facts may be subtle inferences or outright abstract, but either way, your writing must be grounded in an understanding of the law. More than simply interpreting the law, academic legal writing asks you to assess what the law’s principles mean. Not only does this type of writing ask you to apply an understanding of the law to facts, it also asks you to determine what the implications of that law are. Is a hypothetical fact situation simply absurd, or does it open the door to an entirely new and unintended interpretation of the law? Academic legal writing not only asks you to interpret the law and the facts, but also to predict what other’s understanding of those facts and the law would be. These two purposes of academic legal writing are often closely related. When you assess what a hypothetical fact situation means for the law in some manner, you are directly predicting how someone else would interpret the law and facts. For example, when you explain how a judge would interpret the law to exclude extrinsic evidence, you are predicting how a judge would interpret the law. When you present a hypothetical factual situation that creates a new and unintended interpretation of the law, you are depicting how someone else would interpret that same law. This means that each academic legal writing piece will often contain some amount of both purposes at the same time.
Characteristics of a Legal Academic Paper
Academic legal writing has a few key components, or rather categories of such, which together constitute the body of academic legal writing: academic papers, law review articles, case notes, book reviews, scholarly reviews and commentaries, and student notes.
Academic papers are documents using an argumentative and/or expository style and are generally published in a peer-reviewed journal. These papers may also be written as a student requirement for credit hours earned during postgraduate study or as part of a postgraduate course of instruction. They are often expected from those engaged in scholarly study, research or writing connected to legal issues and are prepared in accordance with carefully-followed format and referencing requirements as described in student note content guidelines or scholarly work standards/guidelines and thus are often required to adhere to a specific format and structure regardless of the topic addressed.
Law review articles are in a similar category of academic legal writing documents but are not often required as a course of study. More like an academic paper, law reviews, which are usually specialized publications in legal areas, publish law-related articles contributed by figures from the world of law, rather than articles contributed by its staff. Notable federal law reviews include the Yale Law Review, Harvard Law Review, Stanford Law Review and the University of Chicago Law Review. Both law reviews and traditional academic papers generally include a considerable selection of primary and secondary sources and require careful organization of ideas and consideration of audience.
Case notes look at a single court decision, or perhaps a group of decisions, and analyze them alongside statutes, regulations, other case law and relevant literature. They also often discuss trends in legislation or jurisprudence, evaluate precedents and possibly suggest changes in the law or improvements to a system of justice. Like law reviews, this type of academic legal writing is done primarily by legal scholars and is generally geared toward an audience of peers. As such, case notes may adopt a persuasive tone to advance carefully reasoned interpretations of precedent, law and the legal system. Specific guidelines exist for a variety of case note types that adopt different approaches to the subject matter. These include break-even style notes, ground-breaking style notes, identifying style notes, revisiting style notes and majority style notes.
Book reviews provide scholarly discussions on newly published books in a particular area of law or eventually on a wider audience in the field and conclude with recommendations to the target audience based on the information presented in the reviews. Often written to serve a scholarly audience, book reviews also include a clear statement of purpose and may even include a summary of what the book provides and a brief overview of the publisher and target readership.
Scholarly reviews and commentaries combine elements of case notes and book reviews and provide a full-length article on an area or systematic approach to reasoning, problem solving and decision making that tends to an area of law, as well as a critical evaluation of contemporary non-legal literature to provide insights into the development, improvement and reform of law and to better understand judicial reasoning or the application of a specific statute or regulation. They can also look at wider systemic social issues and their interaction with legal issues or directly at jurisdiction, substantive or procedural law, and are particularly useful for analyzing technical legislation and the underlying values of such legislation.
Finally, student notes, or student comments, are brief papers written by students (usually law), comment on new developments in the law or legislation that typically follow a "specific-certain," "broad-general," "broad-broad," "personal…"
They are most commonly published in law journals and law reviews, and their style is generally personal, persuasive and used to argue a particular viewpoint. Infrastructure, format, structure and analysis in student notes tend to follow strict guidelines set out in law review or journal submission rules but, generally, these types of essay-style academic legal writing will include more expression, more flexibility and are slightly less critical and analytical than other types of academic legal writing.
Legal Academic Writing Research Techniques
Success in academic legal writing relies on research strategies that lay the foundation for subsequent drafting. With so many primary and secondary sources available to students, organizing research is integral to a smooth drafting process. Sourcing authority in legal writing is critical, so acquiring reliable legal sources, statutes, and precedents will maximize writing efficiency. Fortunately, there are many resources available to students to facilitate this process.
The U.S. Federal Court System and State Court Systems are both accessible through a simple online search. Statutes and amendments can be found from the Judiciary Branch, the Executive Legislation, and the Congressional acts for the government, and for state court, all state websites are easily accessed and typically searchable online – a particularly useful resource is the Law Library of Congress. Each state will have its own specific legislative branches and sources, but most are searchable online and include prior rulings and opinions.
Legal Databases are one of the best tools at a student’s disposal, from Bloomberg to Westlaw, to the more user-intensive and less frequent Lexis and Westlaw. Many schools provide students with free access to these. Most database companies also offer a free template that highlights the type of writing that is expected, using organization, language, and general formatting as a basis. For example, Bloomberg’s brief writing template is an exceptionally detailed overview of how to write a brief, from organization to fonts to specific choices on inclusions such as creating charts for statements of fact, which can catch many things omitted from normal writing. These templates can be extraordinarily helpful when writing drafts that are explicitly required: for example, a brief or a motion for summary judgment – Bloomberg offers templates for each of those specific types of motions to help students, and unfortunately many students (including myself) did not know about this previously until many years later. Even standard blank document templates from Bloomberg and Westlaw are invaluable, which can be used for any purpose, such as complaints and oppositions – the benefit is that it is the appropriate size, spacing, and font – customized. Many schools will have subscriptions to these legal databases or they can be accessed at public law schools or courts.
Secondary Sources will help outline both primary and secondary resources. These secondary resources can range from law review articles to encyclopedias to treatises to handbooks to surveys – these materials are the starting point or research. For example, for my final paper this semester I used a treatise on judicial activism for the specific area of law I was writing about. From that reference I was able to use the exact citations and then move to a larger body of sources until I ultimately ended up back where I started, reviewing some of the original articles and comments from law review journals.
Primary Sources, such as cases and statutes, are things we normally understand, but don’t put a lot of thought into. Whenever a case was decided or a statute is updated, that case or statute becomes a primary source. Primary sources are also used to supplement secondary sources when they are updated – for example, when a case is reversed or a statute is amended. Primary sources will be the most reliable research sources – every student should always check if something has become a primary source. That being said, what most students are missing is looking at the secondary sources for the specific primary sources. A little-known fact that I’ve learned in the most recent semester is that secondary sources often cite examples or supplements of primary resources that may illuminate or highlight the primary source better than the primary source itself. This is highlighted on Bloomberg’s legal research pages with a "What’s Included?" section that will include secondary materials readily available to the primary source. This is often a hidden gem, and students should always double check their primary sources against the secondary sources. Most schools will have subscriptions to Westlaw, Bloomberg and other resources for students.
Crafting a Solid Thesis Statement
A common mistake among novice legal academicians is to treat the topic of a paper or an essay as a thesis. A topic is just that—what a paper is about. For example, the topic of an essay could be "ABC Act." Master’s level writing is supposed to be at a Ph.D. level. This means thinking critically about whatever you are writing about. Ask yourself, "What is the question I am trying to answer in this paper?" Stated another way: What argument am I making? In response, the answer will point you to the real essence your masterful thesis statement.
Now, we can put aside the topics and discuss the thesis. A thesis statement provides the argument for the paper and is generally located at the end of the introduction to the paper. The thesis statement is a brief argument that should be supported by the remainder of the paper. For example: "ABC Act will greatly benefit the Nation’s health care system." Note that the thesis statement could be and often is, debatable. Some person may have contrary opinions. In this case, lobbying against the idea would be the counterargument.
"Mastering Academic Legal Writing: A Practical Guide to Legal Research, Analysis, and Writing" by Lawrence M. Solan provides a very useful discussion on developing a strong thesis. The author explains the value of a thesis in two main ways: These, according to Mastering Academic Legal Writing, are the two benefits of a strong thesis. These benefits are ultimately why you want to formulate a thesis that is both strong and clear. Googling "how to write a thesis" may provide you with some good tips and advice.
Format of a Legal Academic Paper
A legal academic paper should have an organized structure that is easy to follow and logically flow. Each section has its own purpose and is linked to the next in sequence. Clarity is paramount to a good legal academic paper, so do not add anything that would confuse the reader or obscure arguments.
Introduction
The introduction will outline the problem, identify what is missing or what can be improved, and highlight their importance. This is similar to a statement of problem or issue in a legal argument. It sets the stage for the reader in providing context for the arguments they are about to read. The introduction should answer three questions .
Body
The body of the legal academic paper will have progressively more detailed information, with each paragraph working to further the points made in the previous paragraphs. Every paragraph will support the argument, as outlined in the introduction. There are two associated aspects to the body. The first, supporting details, provides evidence for the thesis. Second, the logical progression, shows how one thought leads into another.
Conclusion
The conclusion is not a repeat of the introduction. It connects the arguments made on a larger scale and gives the reader a sense of closure. The conclusion may include recommendations, suggestions, or questions to consider but do not allow them to divert from the main point.
Approaches to Legal Academic Analysis
The last building block of strong academic legal writing is the legal analysis itself. Legal analysis serves to answer the questions presented by your research and has the additional job of framing your conclusions. Whether you are drafting a law review article, a seminar paper, a thesis, or an opinion for a client, the analysis is the lynch pin that holds the entire framework of your writing together. While you certainly do not need to be an art history major to write an excellent piece of scholarship, there are technical tricks you can use to perfect your analysis.
Good legal analysis is both comprehensive and persuasive. Good analysis answers questions and finds the crux of the argument. Good analysis, like a good rule, is a function of the law itself rather than an artificial capricious mechanism. The best way to ensure that your legal analysis has these qualities is to process it systematically.
Classify your issues and plan your order of discussion early in the legal analysis process. Key to the ‘classification process is using an organizational technique, such as an outline or a chart, that complements both your subject matter and your own personality. When the time comes to actually work through your issues, you will have already done the individual part of walking through your issues, and you will have pre-planned your order of discussion. Once you have discussed an issue, flesh it out with good authority and a few pithy examples, then move on to the next issue.
Do not be afraid to cross-reference. If arguments you are making and points you are illustrating in one section of your legal analysis apply to an issue you will be addressing later, tell your reader right then. "As I’ll discuss in more detail below, if Congress had intended the Rogers test to apply to non-trademark uses of marks, it could easily have said so in the statute." Cross-referencing is a very handy tool to make sure that you can use the same example in different places and use the footnote or parenthetical to carry your reader along with you. Two points to remember when cross-referencing though, one is that you better get to talking about the referred-to point soon enough, or you will lose whatever momentum you’ve built up. The second is that you should not overdo it. Unless your work is encyclopedic in scope, you do not need to refer to the same point in each of your thousands of footnotes. This dilutes your main points, and makes it look like you are inserting your point in inessential places to fill up your wordcount.
In addition to treating arguments serially, treat them punitively. Some arguments aren’t just wrong, they’re harmful too. It is not enough to simply point out that opposing counsel has come out in favor of discrimination by economic status. You need to tell us why that bad. Similarly, sometimes arguments just don’t make sense. Treat these with suspicion. If something seems obviously wrong to you, it’s worth considering that it could be that you just didn’t get something the first time around. Go back and read it again, and again, and again. Eventually you will see the fault. It’s like fixing a leaky faucet. Sometimes the dripping just won’t stop; you keep tightening it, but it just seems to be getting worse. That’s because you’ve missed the place that needs the wrench, and you are just messing up the place behind it. Years of practice make this easier, but there’s really no shortcut.
References and Citations for Legal Papers
Referencing is a crucial aspect of academic legal writing. Whether it’s in your coursework, thesis, or dissertation, accurately referencing your work is vital for two reasons; firstly, as a means to credit the authors of the texts you use as your own research, and secondly to demonstrate an understanding of the arguments present in that text. It also provides your reader an opportunity to explore further within the field. While there are a number of different referencing styles available, the two most recognised by the legal sector in the UK are The Bluebook: A Uniform System of Citation (known as Bluebook or simply Bluebook) and the Oxford University Standard for the Citation of Legal Authorities (known as OSCOLA or simply Oscola). For most law students and legal professionals, the two main referencing styles they will have encountered are either OSCOLA or Bluebook, and both have a number of different ways to properly reference different stages of the writing process.
For instance, OSCOLA defines the following references for summarising and paraphrasing, as well as the referencing of quoted cases or legislation:
· Author, ‘Title of Article’ (Year) Volume Name of Journal or Book First Page of Article <www.legaljournals.com> accessed [Date]
· Author, ‘Title of Article’ in Title of Book (ed) Publisher of Book Year of Publication) Chapter Number Page Number <www.legaljournals.com> accessed [Date]
· Case Name [Year] Volume Number, Abbreviated Law Report Series Starting Page Number, Pinpoint Page Number of Relevant Text >www.legaljournals.com accessed [Date]
· Case Name [Year] Volume Number, Abbreviated Law Report Series Starting Page Number > www.legaljournals.com accessed [Date]
· Legislation Name Chapter Number, Section Number > www.legislation.gov.uk accessed [Date]
Bluebook has a similar series of references for summarising and paraphrasing, as well as the referencing of quoted cases or legislation:
· Author, Title of Article, Volume Number Name of Journal First Page Last Page (Year) <www.legaljournals.com> last accessed [Date].
· Author, Title of Article in Title of Book, ed. Editor (Publisher Year of Publication) Chapter Number Page Number <www.legaljournals.com> last accessed [Date].
· Case Name, Volume Number, Abbreviated Law Report Series Starting Page Number Pinpoint Page Number (Court Year) <www.legaljournals.com> last accessed [Date].
· Case Name, Volume Number, Abbreviated Law Report Series Starting Page Number (Court Year) <www.legaljournals.com> last accessed [Date].
· Legislation Name, Chapter Number, Section Number <www.legislation.gov.uk> last accessed [Date].
Each referencing system is focus driven, OSCOLA primarily focuses on academic legal writing such as research papers, while Bluebook covers a wider field such as articles, reports and documentaries.
Pitfalls in Legal Academic Writing
Academic legal writers often struggle with a multitude of common writing and editorial pitfalls. A few of the most frequent problems include:
A thick academic style
This style is characterized by long, complex sentences that make for dense and difficult reading. The main culprit is often the use of nominalizations — nouns based on verbs, which replace an action word with a noun version.
For example, instead of "The attorney argued his case to the jury" say, "The attorney argued his case." This is a simple change that makes for a much smoother read.
Cluttered sentences
When you clutter your sentences with excessive qualifiers and prepositions, your writing becomes vague, dense and difficult to understand.
Try to remove unnecessary modifiers from your writing. You can convert all phrases with the word "of" into shorter prepositions. For example, instead of "the intention of the promisor," use "the promisor’s intention."
Other common clutter words include "there is," "there are," "it is," "there will be," "the fact that," "due to the fact that," "at the time that," "at this point in time" and "through the process of."
All of these phrases can be replaced with simply "is."
Another effective way to eliminate clutter is by using the "who" form of verbs. Rather than saying , "The microscopist who was studying the suspect’s blood sample reported the presence of Rh factor in the sample," simply say "The microscopist studying the suspect’s blood sample reported that the sample contained Rh factor."
Disregarding punctuation
One of the biggest complaints from legal writing instructors is students’ lack of focus on punctuation. Many of these errors can be easily remedied and cleared up with a second look.
Punctuation errors include misusing words, omitting parentheses, using the incorrect conjunction, improper placement of commas, run-on sentences and subject-verb agreement errors.
The way to avoid these errors is to read through your paper out loud. Reading your sentence to someone else is also an effective way to identify confusing areas. As you read through your paper get a feel for how your paper flows. Listen for abrupt sentence transitions, run-on sentences and additional errors.
Make a checklist of the most common mistakes you tend to make and refer to it as you proofread your paper. Take your time on this step of the process, your professor or editor will judge you based on the quality of your final draft, so don’t leave anything to chance.
Academic legal writing is challenging, but with these helpful tools you can develop a refined, polished writing style that will impress your readers.
