Elizabeth Fajans graduated from Sarah Lawrence College (B.A.) and Rutgers University (M.A. and Ph.D.). She is the author/co-author of books and articles such as Writing and Analysis in the Law, and Against the Tyranny of Paraphrase: Talking Back to Texts, 76 Cornell Law Review 163 (1993) which are widely used as legal writing text by law students.
She is on the editorial board of the Legal Writing Institute monograph series and has been on the Board of the Legal Writing Institute and on the editorial board of the Journal of Legal Writing.
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Question: What motivated your research for your first article and what was the topic?
E.F.: My first article was on the need for law students to read legal judicial opinions more closely and critically. I did not want my students just to paraphrase what the court said. I wanted them to evaluate the court’s thinking by reading between the lines, recognizing flaws in reasoning, evaluating the equities, and linking texts to larger contexts so that they could not only predict the most likely outcome of litigation but also use precedents to make creative arguments and effective analogies and distinctions on their clients’ behalf.
This required about two months of research in other fields. My co-author and I read articles on critical thinking, composition theory, and cognitive psychology. We also read relevant articles in journals on legal education and legal writing. This research led to an article on what law professors could do to encourage close reading: Against the Tyranny of Paraphrase: Talking Back to Texts, 76 Cornell Law Review 163 (1993).
Question: Can students conduct satisfactory research or do they lack experience?
E.F.: Many law students need some guidance to conduct comprehensive research because they are not aware of the multitude of legal sources and how to access them. However, with guidance, I do think they can research competently. Some law students are competent researchers, however, especially those who have taken a legal research course, have previously worked as a paralegal, or have some other prior background researching the law.
Question: What advantages does a law student have by writing a law review article, particularly in the U.S. job market?
E.F.: Law journal articles require patient intellectual inquiry. Most require students to identify the problem in the law—perhaps one that arises from new factual situations, conflicts in lines of authority, or ambiguity in legislation—and to come up with a feasible and creative solution. Both problem and solution may necessitate exploring a variety of perspectives—those of all the parties in a dispute or affected by its resolution, those of different jurisdictions and scholars, as well as emerging voices in the field of law like feminist jurisprudence, critical race theory, law and economics, etc. It also requires thinking outside the box and using theories from allied areas of law or different disciplines, or challenging assumptions and creating new paradigms.
Articles also require students to exercise a wide variety of analytic and writing skills: how to research, integrate and summarize large amounts of information, how to categorize and organize that information, how to support arguments effectively, how to evaluate alternative solutions, when to make an argument more nuanced, etc.
An article that demonstrates mastery of these skills makes its student author especially attractive to prospective employers since these skills are important to the successful practice of law.
Question: What is a good structure for a law article?
E.F.: The classic U.S. law review article has four parts. The introduction identifies the topic and briefly gives essential background information. It then narrows the topic to a legal problem and sets out the author’s solution. The introduction often ends with a roadmap paragraph that outlines the organization of the article.
Next is the background section, which provides a thorough but concise summary of any material a legal reader needs to understand the analysis. Often it begins with the genesis of the subject, moves through developments noted in both primary and secondary authority, and ends with the current status of the issue.
The analysis section, the heart of an article, tends to have a problem/solution structure, a comparative structure, or a cause and effect structure. The problem solution paradigm often begins with a section on the status quo and reasons for the change. It then explains the efficacy of the proposed solution and the weaknesses of alternative proposals. Comparative paradigms are useful when you need to justify one choice over competing alternatives, for example when balancing litigant’s competing interests or choosing among different policies or approaches. Here you can analyze each point in terms of the alternatives, or you can organize around the alternatives, taking in turn and explaining the advantages and disadvantages of each. In the cause and effect paradigm, you might discuss the effect, suggest its causes, and provide evidence showing how these causes led to the effect. Sometimes one paradigm becomes embedded in another. Thus you might first discuss different approaches to an issue using a comparative paradigm and then explain how the weaknesses of each require a different solution using a problem solution paradigm.
The fourth section, the conclusion, summarizes the gist of the article.
Understanding the structure of a law review article is important because thinking about your topic in terms of that structure helps you to sort and organize your materials and steer you through the writing.
Question: What are the key characteristics of good legal research?
E.F.: Be Thorough:Good research requires thoroughness. You need to be sure you have found and read all the relevant cases, statutes, and commentaries. Thus, you should research using different sources:treatises, articles, cases, statutes. In the United States, you would search in the two main legal platforms, Westlaw and Lexis, as well as Bloomberg, Google Scholar and Hein. You should use different search terms to see if these turn up new material. Try Boolean and natural language searches. Use an index of legal periodicals. You know you are nearing the end of your research when the circle starts to close: when every search yields the same information.
Stay Current: You need to make sure your information is up-to-date, that you are aware of all new developments. For example, you can double-check for recent legal developments by using citators, Shepards and KeyCite in Westlaw and Lexis, or using the fast case function in Hein, although it sometimes might be a year or two behind. Many legal scholars post their works-in-progress, articles, even book chapters on the Social Science Research Network (SSRN) before it is even published. Thus one of the best places to find discussions on hot topics and current issues is to search there. While writing, it is important to keep up to date using online tracking services like Lexis Alerts or West’s Alert Center. Read specialized blogs and legal news services. Many law schools have open source depositories that host its professors’ work. Digital Commons Network and Google Digital Commons are other good sources.
Be Accurate: One problem with internet research is in knowing whether your source is respectable. You may want to check in professional journals to see if there is a commentary on, for example, empirical research, to see if the study is considered reputable. The reputation of a website, journal or law firm may help you determine the authority of the author. Ask questions: Is the author a known expert? Does the material seem biased or one-sided? Can you verify the information in other sources or is it “fake news”?
Build on the Knowledge of Others: A researcher’s first question should be “who would know about this?” Professors, librarians, and practitioners in the field of your topic are good starting sources for information. Look to see if someone has already compiled information on your topic. An internet search for research guides on your topic may direct you to a school that has guides in that area. GlobaLex at New York University has guides to many foreign law guides. Start with secondary sources that give you overviews of the subject: treatises, books, and articles.
Read with Purpose: As you research, you want to pull out the most significant and relevant sources for your topic. Material that seems tangential or duplicative may be skimmed or browsed, but any text with real bearing must be read with a critical eye and more than once. Focus on the purpose of the article, the key questions raised, the important and supporting information, assumptions and validity of inferences made, implications of the argument, the relevance of the material to your thesis.
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