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Write First, Research Second?:
Over at The Glom, Gordon Smith has a post on how he writes law review articles:
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?
Sean M:
I started my Note this way. Idea first, research later.
10.17.2008 1:34am
Loophole1998 (mail):
Works for briefs too.
10.17.2008 1:46am
trad and anon:
I definitely do it the other way. Conclusion first, evidence second is fine for legal briefs but not for an enterprise that purports to be truth-seeking.
10.17.2008 1:52am
Order of the Coif:
I do it exactly the opposite 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.
10.17.2008 2:07am
OrinKerr:
trad and anon,

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.
10.17.2008 2:07am
highway61:
VC's politics-related posts seem to attract many commenters from the write-first, research-later camp.
10.17.2008 2:12am
krs:
How do you decide what the law should be before understanding the arguments for why it is the way it is?
10.17.2008 3:00am
OrinKerr:
krs,

Because I write in areas where there is no law yet.
10.17.2008 3:09am
OrinKerr:
And I should add, of course I read the cases where there are relevant cases: It's the scholarly literature that I put off.
10.17.2008 3:10am
BruceM (mail) (www):
I sorta figured this was how all experts write such articles. To answer krs's question, the people writing the articles (at least those writing articles in this manner) are people who know a lot about a topic - enough to know what the law is and a basic history of it. You can go find out the cites and make sure your points are correct (where you will likely find new arguments, counterarguments, and tangents) after you sketch out your main ideas.

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.
10.17.2008 3:13am
PhanTom:
Honestly Orin,

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
10.17.2008 3:43am
Obvious (mail):
I've heard President Bush takes a similar approach to signing laws
10.17.2008 4:20am
Sasha Volokh (mail) (www):
Orin -- I'm also writing now on a topic that no one has written on yet. So I started out by writing a ten-page draft, introduction through conclusion, with an organization that probably won't change between now and the final draft. Some of the normative conclusions are still tentative here, but the precise normative conclusions aren't important; that is, whether I decide that my idea is good or bad, it still makes a good article. Plus, I know enough about the area that my initial draft didn't include any gross errors.

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.
10.17.2008 4:24am
Boularderie (mail):
Outcome directed writing? For a legal academic?

Just what are the standards for legal academic writing? What are the quality controls? Who enforces them? How? How are they corrected? Policed?
10.17.2008 6:56am
twitterwill (mail):
It's all irrelevant anyway. No one reads your articles.
10.17.2008 8:27am
The Florida Masochist (mail) (www):

I usually start writing b
efore have done the research


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
10.17.2008 8:31am
Alan Gunn (mail):

I definitely do it the other way. Conclusion first, evidence second is fine for legal briefs but not for an enterprise that purports to be truth-seeking.

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.
10.17.2008 9:10am
Melancton Smith:
Of course, it is the Chicago Way. Narrative is more important than Truth.
10.17.2008 9:43am
Ignatius (www):
I just make it up as I go along, but never bother to check for authority later.

Sincerely,
W. Brennan
10.17.2008 9:54am
Kenvee:
I write pretty much the same way, as long as it's an area I'm familiar with. The only exception is a brief where I'm covering a new area -- I'd have to research first then to know what I'm talking about. But if it's a brief on an issue I've covered before or an article or book (which are always based on topics I have a decent familiarity with first, or why would I be writing them?), I'll usually write out at least the basics on my own first before going to find specific citations and quotes to bolster my argument.
10.17.2008 10:05am
Eric Muller (www):
When you do legal history, as I do, Orin's method is a formula for malpractice. 90% of the research has to come first (which, in my case, is typically archival research in manuscript collections). Only then can you know what the story is that you're telling and how to interpret it. After the writing's done, I usually have to go back and do the last 10% of the research -- "cleanup" research, as it were, (hopefully) just to fill in holes.
10.17.2008 10:23am
Anon321:
I usually start with the footnotes and work backwards -- I open a word document, insert about 200 footnotes, and then populate them with randomly selected source citations. Then I pull the sources I've just cited, read them, and try to figure out an argument that fits the sources. I find it's the best way to ensure originality, albeit sometimes at the expense of coherence.
10.17.2008 11:07am
Sk (mail):
You are a philosopher, and not a scientist.

Steve
10.17.2008 11:25am
Eli:
This seems like a good technique when you know what you are writing about. I think: "before hav[ing] done the research" is a little misleading, since I am guessing the author is already very knowledgable on the subject.

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.
10.17.2008 11:33am
Stuart Buck (mail):
It's a good sign that one isn't writing in an empirical field if one can write before doing the research! :)
10.17.2008 11:43am
David M. Nieporent (www):
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.
What PhanTom writes. Generally speaking, by the time I'm writing a brief in a case, I know the relevant law well enough that I know what my brief is going to say, so I write first, and then pull the supporting cases later to flesh it out.
10.17.2008 12:13pm
BruceM (mail) (www):
Outcome directed writing? For a legal academic?

Being a lawyer is an outcome-directed job. All legal writing (advocacy, anyway) is directed towards a particular outcome.
10.17.2008 12:41pm
Bob from Ohio (mail):
I think Anon321's method is followed by more people than he thinks.
10.17.2008 12:53pm
Anderson (mail):
Interesting. I recall that the Smith-Kerr method was excoriated a few months back when it came to writing judicial opinions. Prof. Kerr's comment distinguishing briefs from LJ articles I guess serves as a rebuttal re: legal opinions as well.

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.
10.17.2008 1:13pm
Brian G (mail) (www):
Write first and research second? Sounds like most of the Summary Judgment motions I get from the other side.
10.17.2008 4:15pm
Ryan Waxx (mail):
If you ever leave academia, you might consider a future in journalism with that approach.
10.17.2008 4:20pm
gasman (mail):
The antithesis of the scientific writing method.
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.
10.17.2008 4:38pm
LarryA (mail) (www):
Seems like your approach will work great, provided you have the integrity to say, "Oops," if your research doesn't support your thesis.
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.
Well, not quite. Most scientific method research starts with a thesis, then conducts experiments and examines evidence to see whether the thesis is valid or not. My favorite example is a book called Restricting Handguns: The Liberal Skeptics Speak Out. Circa 1979 a group of social scientists who were gun control advocates decided that what was really needed was scientific proof that gun control would work. They did the studies and concluded that they were wrong.

If you start without a thesis, how do you select what evidence to look at?
10.17.2008 5:06pm
The General:
some judicial opinions are written the same way, especially those byl left wing activists judges of the type that Obama would nominate. Of course, they often don't even bother to do any research before imposing their policy preferences on the rest of us.
10.17.2008 7:01pm
TCO:
Who needs law articles. Do real science.
10.17.2008 8:29pm
gasman (mail):

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.
10.17.2008 11:50pm
Brooks Lyman (mail):
Makes sense to start with some sort of outline and then do the research to fill out the outline. If the research winds up destroying your idea, well, that's how the old cookie crumbles.

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).
10.18.2008 8:13pm