Volokh on Academic Legal Writing
Let’s see — you’re a young associate at a Great Big Law Firm and have been for the past few years. You’ve been making some great money, and you’ve been working your butt off (and you’re still in so much debt).
And now you’re worried about job security. You’re wondering, “What happens if I get canned because the economy’s so bad? What in the world will I do then?”
You’re not alone, but you could do something that separates you from so many others in the same situation. You could write a law review article that will be referenced in an opinion published by the U.S. Supreme Court. And when that opinion is published and people see that a justice of the Supreme Court learned a thing or two from your article, you just might get a call from some Great Big Law Firm or a Prestigious Law School — “Would you be interested in working for us?”
You don’t buy it? You don’t think the Court would ever rely on what a young associate wrote? Then consider the Court’s opinion in District of Columbia v. Heller, which refers to this law review article written by Brian L. Frye, a young associate at Sullivan & Cromwell LLP.
“It is difficult to overstate the importance of a written paper for a young lawyer’s career, especially if the piece is published . . . .”
Judge Alex Kozinski
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Eugene Volokh teaches constitutional law at UCLA Law School.
He’s written more than 50 law review articles, a number of which have been cited in judicial opinions*.
And he’s the author of Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review. As the title suggests, the text is directed at students of law, but its contents are valuable to anyone planning to write a law review article. And that includes young associates.
I interviewed Professor Volokh and asked him for his advice for young associates considering writing a law review article.
Q: What’s the value of being published by a reputable law journal?
A: Law journals are the scholarly publications of the legal academy, analogous to science journals in which various research scientists publish. If you want to contribute your novel observations, arguments, factual discoveries, or empirical discoveries to contribute to the state of legal knowledge, the law review is the place to do it; databases of law review articles are where academics and practitioners will look when they’re doing their own research on the subject. And if you want a job as a legal scholar, especially at a law school, then law reviews are where you should be publishing to build your credentials.
Q: What’s the value of being published by one of the most prestigious law journals?
A: Why publish in a more prestigious journal? (1) When people do searches for a legal article, usually through Westlaw or Lexis, and come up with 20 results including yours, how will they decide which to read? They will see the title (which is why you should choose clearly descriptive titles), the author’s name (good for you if you’re already well known), the publication date, the place of publication, and a brief contextual excerpt from the article. So all else being equal, they’ll be more likely to look at the articles from the higher-ranked journals rather than lower-ranked ones. (2) If you want a job as a law professor, publications in more prestigious journals are more impressive to hiring committees, especially ones who are just skimming through a big pile of applications.
Q: What’s the secret to getting into a top journal (e.g., Harvard or Yale)? Is it one of those “it’s not what you know but who you know” situations?
A: Editors want something that (1) is novel, (2) is well-written, (3) is well-reasoned, (4) is on a topic that interests them and that they think will interest others, and (5) is on a topic that’s relatively timely — tied in to existing debates or likely to start new debates — so that it’s likely to get a lot of citations.
The conventional wisdom is that editors at most journals are biased in favor of authors who are at top-ranked law schools, and that’s probably right. But top-ranked journals routinely publish articles from authors at lower-tier law schools, and even occasionally from authors who aren’t professors at all; and mid-ranked journals often do that. So just make the piece as good as you can, send it out broadly, hope for the best, and aggressively shop up the offers you get.
Q: Should you query the editors before you start on your piece to see if your topic is of interest?
A: Definitely not.
Q: What should an author consider when selecting a topic for a article?
A: Do I think I have something novel and useful to say about the subject? Am I excited enough about the subject that I will put in the huge amount of work needed to produce a publishable article?
Q: How much time should an author plan on spending on an article?
A: As much time as is necessary. Some articles of mine were mostly done in a few months; one I thought about for 15 years, with periodic false starts, before I finally produced it.
Q: What about collaborations? Should a young attorney think of co-authoring an article?
A: Yes if you think this is the sort of article that requires two different skill sets, and wouldn’t get written by just one of you. But (1) co-writing involves a lot of back-and-forth, so each person is doing much more than 50% of the work required for a solo article, and (2) if you’re applying for a teaching job, co-written articles are in some measure less valuable, because the appointments committees have a hard time telling how much credit to give you for them.
Q: What about getting others to review your article before you submit it?
A: Absolutely. It’s always helpful to have readers who can look at the article afresh, from the perspective of an average reader who doesn’t know the subject as well as the author does and who doesn’t have the same emotional attachment to the article that the author does.
Q: Can you cite some exemplary articles, ones that could be used as models?
A: I’ve always much liked an article by a student of mine, Jennifer Rothman, “Freedom of Speech and True Threats,” 25 Harvard Journal of Law & Public Policy 283 (2001). She wrote it during her second year in law school, and circulated it to law journals while still a student. Despite the prejudice many journals have against publishing student-submitted work from students at other schools, she got half a dozen offers, and ultimately published the piece in a Harvard specialty journal, which counts as a great placement even for young professors and especially so for students. And it’s a substantively excellent piece, thoughtful, creative, original, and detailed; it’s been cited by 5 court opinions and over 25 law review articles.
Q: What about writing for more popular types of publications. rather than law reviews?
A: It depends on the audience you want to reach, and on whether you have something really original (in the sense of never before having been observed by anyone in the field) to say. But if you do have something that’s both original and interesting to the broader public, why not do both? Publish the law review article and then publish a vastly reduced version in a mass-market publication.
If you want to popularize information that other scholars already know but many lawyers don’t know, the place for that is a newspaper, magazine, or Web site aimed at practitioners; if you want to popularize information that other scholars already know but many laypeople don’t know, the place for that is a newspaper, magazine, or Web site aimed at the general public.
Q: If you’re not terribly bright or creative, or you’re not such a terrific writer, is it best not to publish? i.e., is publishing in a law review something every young associate should do, or should some attorneys steer clear?
A: Sure, don’t publish anything that’s badly written or badly reasoned, and if you’ve published several good pieces, avoid publishing ones that are of lower quality (though it’s OK to publish a few that are less ambitious than the others, so long as they’re well-done for what they are). At the same time, don’t agonize so much over the quality of your pieces that you just never publish anything.
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* Professor Volokh runs one of the world’s most popular blogs (The Volokh Conspiracy), and his writings have appeared in The Wall Street Journal, The Los Angeles Times, The New York Times, and Slate. He’s also a regular contributor to the Huffington Post.
