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 advantages.

Nitya Duclos examines four reasons advanced for same-sex marriage (political reform, public legitimation, socioeconomic benefits, and safeguarding children of lesbian or gay parents). She concludes, that the effects of allowing same-sex marriage will not be felt uniformly throughout lesbian and gay communities and questions whether it will exacerbate differences of power and privilege in those communities.

In a companion piece to Ettelbrick’s, Thomas Stoddard believes that while recognizing the oppressive nature of marriage in its traditional form, believes that lesbians and gay men should be able to choose to marry and the civil rights movement should seek full recognition of same-sex marriages. His three reasons for pursuing this right are the practical advantages associated with marriage-related benefits, the political reason that marriage is the issue most likely to end discrimination against lesbian and gay men, and the philosophical explanation that lesbians and gay men should have the right to choose to marry and that providing that right will be the principal means toward eliminating marriage’s sexist trappings.#
Nan Hunter argues that legalizing lesbian and gay marriage will destabilize marriage’s gendered definition by disrupting the link between gender and marriage. She analyzes both marriage and domestic partnership against the feminist inquiry of how law reinforces power imbalances within the family and views same-sex marriage as a means to subvert gender-based power differentials.# Mary Dunlap finds that same-sex marriage is constructive when lesbians and gay men are encountering gay-bashing resulting from Bowers. She examines the values underlying the push for same-sex marriage (such as equality, autonomy, fairness, privacy, and diversity) and encourages expansion of the marriage debate outside legal circles. One way to expand this debate is to read the interviews of lesbian and gay couples some of who have chosen to have public ceremonies their commitment and some of whom have chosen to keep their commitment private.#
The debate continues to rage, without resolving the debate here, it seems clear that obtaining the right to marry will drastically impact the lesbian and gay civil rights movement. My response to this debate is best expressed in the following short essay, of a lesbian woman explaining the vital political change that can result from the simple (and personal) act of same-sex marriage.
Yes, I know that weddings can be “heterosexual rituals” of the most repressive and repugnant kind. Yes, I know that weddings historically symbolized the loss of the woman’s self into that of her husband’s, a denial of her existence completely. Yes, I know that weddings around the world continue to have that impact on many women and often lead to lives of virtual slavery. Yes, I know. Then how could a feminist, out, radical lesbian like myself get married a year ago last April? Have I simply joined the flock of lesbians and gay men rushing out to participate in a meaningless ceremony that symbolizes heterosexual superiority?
I think not. When my partner and I decided to have a commitment ceremony, we did so to express the love and caring that we feel for one another, to celebrate that love with our friends and family, and to express that love openly and with pride. It angers me when others, who did not participate or do not know either of us, condemn us as part of a mindless flock accepting a dehumanizing ceremony. But more it distresses me that they believe their essential vision of weddings explains all–because they have been to weddings, both straight and queer, they can speak as experts on their inherent nature.

Perhaps these experts should consider the radical aspect of lesbian marriage or the transformation that it makes on the people around us. As feminists, we used to say that “ the personal is political.” Have we lost that vision of how we can understand and change the world?
My commitment ceremony was not the mere “aping” of the bride that I supposedly spent my childhood dreaming of becoming. (In fact, I was a very satisfied tomboy who never once considered marriage.) My ceremony was an expression of the incredible love and respect that I have found with my partner. My ceremony came from a need to speak of that love and respect openly to those who participate in my world.

Some of the most politically “out” experiences I have ever had happened during those months of preparing for and having the ceremony. My sister and I discussed for weeks whether she would bring her children tot he ceremony. Although I had always openly brought the woman I was involved with home with me, I had never actually sat down with my niece and nephews to discuss those relationships. My sister was concerned that her eldest son, particularly, might scorn me, especially at a time when he and his friends tended toward “faggot” jokes. After I expressed how important it was for me to have them attend, she tried to talk with her son about going to this euphemistically entitled “ceremony.” He kept asking why my partner and I were having a “ceremony” and she kept hedging. Finally he just said, “ Mom, Barb’s gay, right?” She said yes, they all came, and things were fine. Her youngest son sat next to me at dinner after the ceremony trying to understand how it worked. “You’re married, right?” “Yes.” “Who’s the husband?” “There is no husband.” “Are you going to have children?” “No.” “So there’s no husband and no children but you’re married, right?” “Yes.” “OK,” and he happily turned back to his dinner.

My partner invited her large Catholic family to the ceremony. We all know how the Pope feels about us. Despite that, her mother and most of her siblings, some from several states away, were able to attend. Her twin brother later told us that our ceremony led him to question and resolve the discomfort that had plagued his relationship with his sister for many years.

As a law professor leaving town early for the ceremony, I told my two classes that I was getting “married” to my partner, who is a woman. (I actually used “married” because saying I was getting “committed” just didn’t quite have the right ring to it.) The students in one of my classes joined together to buy my partner and myself a silver engraved frame that says “Barb and Peg, Our Wedding.” My colleagues were all invited to the ceremony and most of them attended. One of them spoke to me of the discussion they had within their family explaining to their children that they were going to a lesbian wedding.

How can anyone view these small victories in coming out and acceptance as part of flocking to imitate, or worse join, an oppressive heterosexual institution? Is it not profoundly transformative to speak so openly about lesbian love and commitment? The impact was so wide-ranging, not just on my partner and myself, but on our families, our friends, and even the clerks in the jewelry stores when we explained we were looking for wedding rings for both of us. Or on the 200 people who received my mother’s annual xeroxed Christmas letter with a paragraph describing the ceremony. Or the clerk in the store who engraved the frame for my students. Or the young children who learned that same-sex marriage exists.

Yes, we must be aware of the oppressive history that weddings symbolize. We must work to ensure that we do not simply accept whole-cloth an institution that symbolizes the loss and harm felt by women. But I find it difficult to understand how two lesbians, standing together openly and proudly, can be seen as accepting that institution? What is more anti-patriarchal and rejecting of an institution that carries the patriarchal power imbalance into most households that clearly stating that women can commit to one another with no man in sight? With no claim of dominion or control, but instead of equality and respect. I understand the fears of those who condemn us for our weddings, but I believe they fail to look beyond the symbol and cannot see the radical claim we are making.
The preceding writing demonstrated many of the principles of scholarly legal writing. I truly believe legal scholarship has a strong bearing on the future of the legal profession. If we continue to not only take in question what is or what works, but what might, could, should or should not be, we will continue to have stimulating debate and a strong democracy.
Bibliography
Bibliography
Delgado, Richard. (1986). How To Write A Law Review Article.
Dunlap, Mary. (1995). Virginia Law Review Symposium Issue. Volume 3.

Ettelbrick, Paula. (1996). Since When Is Marriage a Path to Liberation?
Fajans, Elizabeth. Falk, R. Mary. (1995). Scholarly Writing for Law Students.

Hunter, Nan. (1998). Marriage, Law and Gender: A Feminist Inquiry.

Monk, C. Carl. (1993). Memorandum, Association of American law School, to Deans of
Member Schools.

Stoddard, Thomas. (1994). Why Gay people Should Seek the Right To Marry.

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