7 Legal Essays: A Checklist

This article was originally published as the foreword to volume 29 of the Dalhousie Journal of Legal Studies under a Creative Commons Attribution 4.0 International License (CC BY 4.0). It is reproduced with permission from the authors.

LEGAL ESSAYS: A CHECKLIST

REAGAN SEIDLER & SARAH MACLEOD^[1]

Good legal writing is more science than art. It persuades not by its rhetoric but by the impregnability of its research method. It answers its question using a testable, falsifiable, and repeatable method, so that others would choose to follow the same steps and come to the same conclusion.

At the Dalhousie Journal of Legal Studies (DJLS), we read scores of papers each year from law schools across the country. They show us that, nationwide, many authors misunderstand the purpose of a research paper. It is not a memo, nor is it an op-ed. The goal is to use a structured method to say something new and advance the law. All strong papers have certain elements. That checklist comes below.

THE INTRODUCTION

The introduction is the hardest part because it contains the whole paper. It must put a topic in context and explain why it is important, explicitly state the research question or hypothesis, describe the methodology, and outline how the paper is organized.

Put the topic in context and explain why it is important

The audience for a legal paper is a generic lawyer. In the introduction, you must give them the background to understand your topic. This is often done by pointing to statistics or prior studies. Take this article that asks whether a baby born to a deceased parent should still inherit:

The rapid and continued advancements in assisted reproductive technology now make it possible for children to be both conceived and born after the death of a genetic parent. In 2009, there were 16,315 in vitro procedures performed in Canada, resulting in 5710 live births. Many of the legislative schemes governing intestate succession were enacted before the development of assisted reproductive technology. As technology continues to advance, these implications, including the rights of posthumously conceived children to inherit on intestacy, warrant consideration.^[2]

Some articles start with catchy anecdotes. One piece on creationism in schools began by telling a story of conflict between trustees on a Pennsylvania school board.^[3] Another, on corporate takeovers, recapped the movie Wall Street.^[4] Whatever the tactic, make sure the reader understands why your conclusions are worth reading about.

Explicitly state the research question or hypothesis

Reduce your topic to a single question or statement. For instance:

• The objective of this article is to assess whether Canada could be liable for the transboundary environmental damage induced by climate change.^[5]
• What legal space does a municipality occupy in the Canadian context? And, given that position, what are the barriers to environmental authority exercised by a municipality?^[6]

Explain the methodology

If there is one thing to take away from this article, it is the importance of your methodology. A “methodology” is the strategy you use to answer your research question.

We often see authors state a proposal and then give three reasons why it’s a good idea. Those are poor papers. How do you know there aren’t four reasons why it’s a bad idea?

A proper methodology explains the criteria you will apply to determine whether your idea is a good one. Is your proposition true because it is supported by leading cases, is good economic policy, conforms with suggestions made by another author, or is consistent with a certain theory?

Each paper should have a paragraph explaining what its methodology is. At a minimum, it should:

1. Name the methodology,
2. Cite where it comes from (a book? another article?),
3. Explain any assumptions,
4. Define any value-laden terms,
5. List the criteria against which your idea is being assessed (if making a judgment),
6. Delineate the scope of your research — especially any related topics you’re not addressing, and
7. Explain why your methodology is the right way to answer your question.

Prior issues of the DJLS offer several strong examples.^[7]

Selecting a methodology is arguably the most important decision when designing a paper. The method determines the direction, scope, and depth of the study, and determines the tools you use to reach a conclusion. It is also vital to choose a methodology before “collecting data” rather than trying to fit evidence into a framework in hindsight.

There are many types of methodologies available. Studies can be comparative, empirical, or rely on a supporting discipline, such as history or economics. When selecting a methodology, keep in mind your research question. For example, if your topic is investigating the gender or sexuality implications on an area of law, feminist or queer theories may be most appropriate. Also be mindful of the resources at your disposal (including time). It is often helpful to review other papers that have used the same methodology to determine the most efficient practice.

The most common methodology is known as doctrinal research. This is what a lawyer does when they write a memo. It is “research in law” rather than “research about the law.”^[8] If doing doctrinal research, you should explicitly use the words “doctrinal research.” You might describe how you identify relevant statutes and cases, note the databases you use, comment on the relevance of international, foreign, or Indigenous sources, explain the role of commentary in your analysis, or generally characterize whether your conclusions require a conservative or generous look at certain principles. Ultimately, the goal is to assure readers your statement of the law is true.

Outline how the paper is organized

In the final paragraph of your introduction, list what readers will find in each section of your article. For instance:

The paper will be broken into three sections. Section I will examine the case law and legislation, which detail the content of fiduciary duties in Canada. Section II will critique the fiduciary duties outlined by the Supreme Court in Peoples and BCE. Section III will outline a variety of arguments as to why directors’ fiduciary duties should require them to focus exclusively on maximizing shareholder value in the change of control context.^[9]

THE LIT(ERATURE) REVIEW

The purpose of an academic article is to make a point nobody has made before. How can you prove your thought is original unless you compare it to what’s already been said?

The literature review is a crash course on the article’s topic and is meant to bring the reader up to speed. It summarizes the subject’s fundamentals as well as the most recent ideas of others in the area.

It is often wise to include a lit review as a section, on its own, early in the paper. Some skilled writers will embed the lit review within the body of the analysis, implicitly relating their ideas to what others have said before. It can also fit well in the conclusion, allowing an author to explicitly compare their conclusions against preceding studies.

For an example, see “A Safe Bet,” where the author not only summarizes the laws on gambling regulation in Canada, they also highlight criticisms and delve into Parliamentary debates to provide a full picture of the legal landscape.^[10]

Leave politics for the dinner table

Academic writing should take an objective, scholarly tone. Authors must resist the urge to sensationalize their writing with broad generalizations (“always,” “never”), emotional appeals (“it is heartbreaking that…”), or editorial characterizations (“controversial”). These reactions must be earned.

Language showing a political bias, including the use of terms that originate in one side of a political discourse, are also ill-suited for a research paper. In 2011, the DJLS published an article that began: “Since the early days of the post September 11th era and the beginning of the infamous war on terror operations in Afghanistan and Iraq, Canadians have become acutely aware of the horrors of torture.”^[11] What made the operations “infamous” is not explained. More recently, in 2016, the DJLS published an article called “The Problems of False Comparison: Animal Discourse and the Anti-Choice Movement.”^[12] This too is unnecessarily political. Terms like these not only alienate readers, they compromise the integrity of the analysis by presuming key facts or premises and portraying the author as a partisan.

In today’s climate, we urge particular caution around use of the term “social justice.” Too often, authors take for granted that readers share their vision of what is socially just. When using the phrase, be specific about what interest is being advanced and how it does so.

This said, not all politically charged words are off-limits. In 1998, the DJLS published an article entitled “Zionism, Racism, and the Palestinian People: Fifty Years of Human Rights Violations in Israel and the Occupied Territories.”^[13] It overflows with incendiary statements, including claims Israel “is in fact a racist state” built on “outmoded ideologies … that the world can no longer afford to tolerate.”^[14] Such bold language is not unacademic in its context, however, as it is substantiated by primary source quotations and the author’s own methodology that explains why they find the nation’s policies problematic. While we make no comment on the merits on the author’s work, we highlight it to illustrate that provocative language can be scholarly if properly justified.

Legal writers can and should take on controversial topics. We merely advise authors gain support for these causes through sound research and not rhetoric.

Use readability statistics

Short words, short sentences. This is the key to readability.

You can measure reading ease using Flesch-Kincaid scores and grade levels. Higher scores, or lower grade levels, mean pieces are easier to read. The Harry Potter books have a readability score of about 75-85, requiring a grade 6 education to understand.^[15] Commentators recommend work for legal clients should score in the 40s,^[16] which seems a good target for legal essays as well. In the famous words of Bryan A. Gardner: “legal writing shouldn’t be lethal reading.”^[17]

Free tools online and in most word processors will give you Flesch-Kincaid numbers. Use them!

Make it shorter

As Andrew Coyne once said: “Space constraints are the reader’s friend. Unlimited space is the writer’s indulgence.” No matter how long your article is, make it shorter.

Use automatic supras

Your word processor can insert cross-references to automatically update your footnotes. That way, you can avoid manually changing “Vavilov, supra note 2″ each time you add a sentence.

THE CONCLUSION

Like the introduction, the conclusion is expected to contain certain things. It is not merely a recap of what has been said. While summarizing key points is part of it, the conclusion should also state what the article contributes that is novel, offer a brief comparative lit review, and highlight any shortcomings and/or areas of future research.

State the article’s contribution

As said earlier, the purpose of academic writing is to advance the law. In your conclusion, state explicitly what your paper adds that is new. This is an excellent opportunity to tie your main points back to the introduction, which stated your argument and outlined why this topic required study. With clarity and brevity, drive home why the reader spent their time reading your 25-40 pages. As an example:

The primary contribution of this article is the assertion that even by conservative doctrinal principles, protecting traditional knowledge under section 35 of the Constitution Act, 1982 seems quite possible. It appears to offer the first practical, in-depth analysis of how a claimant might make such a claim. It also observes that protecting traditional knowledge under section 35 seems to be a positive step forward toward reconciliation.^[18]

Compare your conclusions to others in the field

With your conclusions stated, compare your position to others before you. Would those authors agree? How and why are your ideas different — and better?

By bringing in comparisons, you make clear why your article is important. See these closing comments to the Lewis article cited above:

Beyond the case commentary discussed herein, there has been little additional work … Commentary has focused more on the government’s use of the notwithstanding clause than historical or philosophical examinations. Leonid Sirota, for instance, has criticized the failure of the government to justify its use of the clause: “The government doesn’t say that it disagrees with Layh J’s views about the scope of religious liberty … It is content to state the objective of `school choice’… as if the end justifies the means, and it is permissible to disregard Charter rights as soon as one has a worthwhile reason for doing so.” This criticism has been echoed by media commentators such as Andrew Coyne. Perhaps all interested parties, having offered initial reactions, are awaiting the results of the appeal.^[19]

This part should not be lengthy—and be careful not to simply repeat your lit review.

Offer ideas for future research

After exploring your topic, you will undoubtedly encounter other interesting questions that are outside your scope and resources. You may even have noticed some delinquencies or areas for improvement within your own methodology worth pointing out.

Make note of these possibilities in your conclusion. It not only gains the reader’s trust by assuring them you are not making outlandish claims, but also sets up the next writer to follow in your footsteps. List these thoughts explicitly, as in:

[T]he research reported in this paper should serve as a foundation for a number of divergent inquiries, each of which could test and explore my hypotheses. Some particular areas of research are noted here for future reference.

1. A comparative analysis of Nova Scotian Chancery procedure with the procedure of equity courts in other jurisdictions (and with Nova Scotia’s Supreme Court) will place my research into context. Particular areas to focus on would include the duration and expense of litigation.

2. A comparison of the practice and pleadings of the Nova Scotia Chancery to those in Ireland after 1751 would be an interesting comparative analysis. An interesting question is the extent to which Ire-land’s practice developed in new directions after its export to Nova Scotia. …^[20]

CONCLUDING STATEMENT

Legal commentary benefits from the rigours of scientific expression. Our intention, with this piece, was to outline the key elements of essay writing we see so often lacking in legal academia. Those interested in more detailed guidance should look to the numerous books on legal research and writing, research methodologies, and research design. We hope you have found these first pages informative and look forward to reviewing your future submissions.