Scholarly Legal Writing The education of lawyers must not merely involve the acquisition of knowledge and skills; it must include the cultivation of creative thinking and imagination, the appreciation of the commonality of the human condition, and development of a sense of judgment and responsibility. Hence, lawyering includes the ability to understand and critique existing and emerging visions of the profession in relation to interdisciplinary and multicultural perspectives, the implications of technology, and the consequences of economic globalization.# As the preceding quotation suggests, legal scholarship has a major impact on the future of the profession. The future of any legal student must begin with a strong foundation of legal knowledge. A cornerstone of this foundation must be the practice and interpretation of scholarly legal writing. Scholarly legal writing in itself can be a very complex, even scary term for law students to understand and apply. However, the way in which legal writing is applied may very well hold the key to whether or not the writing is understood and properly judged.
During the course of this paper, I will demonstrate and shed understanding on the effective writing process of scholarly legal writing a student will encounter in law school. I will show and explain the writing style as well as examine the different writing styles used. I will give an understanding of how scholarly/critical legal writing is relevant in the development and usage of other legal writing skills. Finally, I will show an essay I created to demonstrate many of the scholarly legal writing skills and techniques this paper shows. I believe you will find the techniques and strategies in this paper to be inspirational, crucial and essential in creating effective scholarly legal writing.
You will leave with the basic understanding of how scholarly legal writing can enhance your writings and yourself. Perhaps the most difficult part of writing a legal paper is choosing a subject and developing a thesis. Allowing you to put your own educated take on the subject while supporting your analysis by argument and evidence. Choosing a subject you feel comfortable with and show interest in will make your research more enjoyable-not long and dull. It will also enable you to now find a thesis. Professor Richard Delgado suggests that you “find one new point, one new insight, one new way of looking at a piece of law, and organize your entire article around that. One insight from another discipline, one application of single logic to a problem where it has never been made before is all you need.”# Judicial opinions must be examined with a critical eye.
You must analyze the way the writer looks at the law, as well as read for inconsistency and rhetoric. By doing so, your thesis will be, as it should be, an original and supportable proposition about the subject. Once you have your thesis it is time to gather information and assimilate it. Without doubt, you will spend numerous hours reading, note taking, browsing and skimming; deciding which materials are relevant. It is very important to be thorough and to involve current trends. Assimilating information or making the information your own is critical to your research.
This will give you a greater understanding of your research and aid in setting your paper apart from others. Writing a draft can be difficult. Your thoughts and notes may be anything but orderly. An outline is an excellent way to arrange ideas and place information in schemes that will work for you. If you are dealing with case law: case charts, cluster diagrams and issue trees can be invaluable.
Case charts list cases and allows you to organize issues by case. Cluster diagrams, on the other hand, include ideas and details with lines attaching details to the main idea. Issue trees begin with a primary idea and work down the tree to sub points.# These trees and diagrams may be revised easily into outlines. The actual writing can begin at any part, not necessarily the beginning. Some writers even begin with the conclusion.
It is important to write in an order of ease. You may find something that would work perfectly in an area of your paper other than where you are. Feel free to move around. Do not be bothered with polishing and fine-tuning your work. This is a last step in the writing process and should not inhibit you at this point. The first full draft is not meant to be perfect.
It may need to be lengthened or shortened. There will be introductions, closings, and transitions that may need fine-tuning. Now is the time to step back and take a break. Find another legally educated reader to examine your work. Many times a fresh set of eyes will be able to see mistakes or items that may need more clarification.
This will add another perspective and assist you in seeing what work still remains in the next step, revising. Revising is not simply correcting mistakes. While that is a major part, revising is connecting you with your reader. You must convince your audience to see your subject as you see it. You need to know your audience in order to be convincing to them.
Legal writings are generally written for persons in the legal community. However, the legal community is not just attorneys and judges anymore. The legal community today is also made up legal assistants, paralegals, nurses, doctors, engineers and secretaries. Your thesis should be directed toward this more general, diverse audience. Of course revising must begin with the content.
You need to decide how much information you need to present. Be sure your content is objective and allows for both agreement and disagreement to your point of view. You will want to have enough information to express your points, but not too much information. Once you have your thesis arranged properly, make sure you have all items documented by footnotes. Footnotes must be accurate and frequent. The substance of the law must be documented. You must show credit for statements or facts used that show your topics of debate. Proper footnotes express that you are thorough in your research as well as cover your work from plagiarism.
Writers and editors must also avoid copyright infringement or unfair use. It is safe to say, when in doubt, seek permission for any information used in your writing. The need for footnotes is crucial for legal writings and you will find them to add to the professionalism of your work. Focusing on organization and connecting ideas is the next step. Complex materials need to be categorized together to avoid confusion.
Also, headings, topic sentences and transitions need to be clear and flow smoothly. Proofreading may be one of the most important tasks in any form of writing. Your audience will almost always notice typographical inconsistencies. What may seem like a minor error could practically ruin an otherwise great paper. When proofreading, do not simply trust a computer spell check program and always read every word. Also, follow any specific style or format assigned by a professor or employer. I feel the preceding pages gave the basic fundamental foundation necessary to create a scholarly legal writing.
In the following piece, I display many of the scholarly writing techniques explained. This piece examines the institution of marriage in the gay and lesbian community. It reviews articles arguing both for and against marriage as a political goal for homosexuals. It also speaks of the personal experience of a lesbian as she approaches and goes through a “marriage ceremony”. An Essay on Same-Sex Marriage Very little since Stonewall, and the break from accepting the status quo that those riots symbolize, has challenged the lesbian and gay community as much as the debate we have had over the past several years on whether seeking the right to marry should be the focus of our community’s efforts, political influence, and financial resources.
As is often true in most such political debates, both “sides” to the debate make important arguments about the impact that the right to marry will have on each member of our community, on the community as a whole, and on our place in society. Arguing against same-sex marriage, Paula Ettelbrick believes that it will not liberate lesbians and gay men but will make us more invisible, force assimilation, and undermine the lesbian and gay civil rights movement. She also argues that it will not transform society into respecting and encouraging relationship choice and family diversity, which are primary goals of that civil rights movement.# Ettelbrick also argues that rather than expanding the couples who can marry, we should change the institution of marriage to eliminate its marriage-dependent benefits, so that people will choose it for symbolic, rather than legal or utilitarian reasons. She also recognizes the class-based assumptions inherent in the marriage debate, realizing that for most poor people, marriage offers few economic adv …