Basic Tools and Concepts

Scholarly Legal Writing

Scholarly writing is distinct from practice related legal writing primarily in its purpose. In scholarly writing one has time to ponder a legal question; it is a way for the writer to enter the dialog about a particular legal topic. Practice related writing is result oriented. Its focus is usually a specific case/fact scenario and its purpose is to accomplish something about that case. Typically, the practice related writing will begin with the law as it exists currently or at the point in time relevant to the problem being considered, and then apply that law to the problem. In contrast, scholarly writing might explain the history of that law, how it developed and got to be where it is today, then discuss and analyze that law. The time lines for completing a scholarly piece and a practice related piece are also very different. Practice related writing requires the author to be able to quickly focus the issues on what is directly relevant to solving the problem at hand and discuss those issues fully without adding interesting but unnecessary commentary.

Generally a scholarly piece of writing will have one or more highly footnoted sections at the beginning that indicate what the writer’s thorough research has revealed about the topic; that information will then form the basis for a more lightly footnoted analysis and evaluation that is appropriate to the specific document. The research sections will include whatever background that the reader will need to understand the analysis section and might include a factual or statistical component, a methodology section, a history or survey of the law. The analysis section is the writer’s opportunity to add to the ongoing debate on the topic and to make a significant contribution to legal literature.

As with any legal writing, writing a scholarly piece is easier if the process is broken into pieces and a timeline established for creating each piece as well as the final product. One of the most important pieces is to clearly define the topic of the piece before beginning research or writing. Two books that are useful when choosing a topic as well as with the other steps of the writing process are: Fajans, Scholarly Writing for Law Students and Volokh, Academic Legal Writing. Both books are available in our library.