6 Student Scholarly Writing: The Seminar Paper

 

Writing a seminar paper is often a student’s first experience with scholarly legal writing. Even those students who have already written a case note for a journal write-on competition are often surprised to find it a more difficult process than they had anticipated. While the memoranda and briefs that are typically the focus of the first year legal research and writing curriculum were new types of documents with which most students had little, if any, prior experience, most of our students have been writing research papers for many years. They thus typically expect that the writing process will be relatively easy and therefore are overwhelmed and frustrated when they discover that it is, in fact, a very time-consuming and difficult process. This struggle is often reflected in what a professor will perceive to be a “badly written” draft of the paper, when most of the problems with the paper are not deficiencies in writing ability but are, instead, a reflection of the fact that the students are novices when it comes to scholarly thinking and writing and are unsure of both the expectations of the audience and their own authority in taking a position on a difficult legal issue.[1]

Teaching students how to write effective seminar papers can be equally overwhelming and frustrating. However, it can also be exciting and rewarding when the professor is able to intervene in the students’ writing process[2] and help their papers develop from a general idea into strong pieces of scholarly analysis. In the most general terms, the keys to getting good seminar papers from students are:

  • challenging the students to assume the role of “expert” and to take a stance on the topic that they will use legal analysis to support, rather than simply reporting on what others have said;
  • incorporating discussions of the writing process into the seminar itself, allowing time in class to lay the foundation for students to understand the expectations during each step and to discuss the students’ questions and concerns about their work on that step of the process;
  • setting deadlines that require students to start early and to work on the papers at a steady pace, while at the same time allowing enough time for each stage in the writing process; and
  • intervening in the students’ writing process as often as possible to provide feedback and guidance about the students’ progress thus far.

The following discussion outlines the stages of the writing process for a typical seminar paper and how faculty teaching a paper course might be able to assist students at each of these stages.

  A.  Selecting a Topic

Many students, and particularly those who are new to the subject matter of the seminar, have great difficulty selecting a topic for their papers.  Without clear deadlines and guidance from the professor, some students will delay selecting their topics so long that they do not have enough time to fully research the issue and develop a coherent thesis and they do not have enough time to change topics if they discover mid-way through the research process that the topic is too broad or too narrow to form the basis for a seminar paper.[3]

A professor has a variety of available options to make topic selection easier for the students.  Some professors offer a list of topics for students to choose from.  This can be particularly helpful for seminars dealing with complex or difficult subject-matter with which most students will have little prior familiarity.  However, there must be a broad enough range of pre-selected topics for students to be able to find a topic of interest, as the research and writing process can be much more difficult for students who must write about a topic that does not fully engage their interest. If providing a list of topics, the professor can greatly aid students in this early stage of the writing process by organizing the seminar syllabus so that foundational material for most of the topics is covered earlier in the course, enhancing the students’ understanding of the subject matter. Or, if the list of topics cross-references the syllabus, students can readily look to the readings assigned in the syllabus for the subject matter relating to the potential topic and use those readings to gauge whether or not the topic will be of interest. This option is a good choice for faculty who prefer to have the seminar papers cover in depth something that will be a topic of discussion during the course of the seminar.

If a professor prefers to allow students to find their own topics, students can be greatly aided in their topic selection if they are given a list of, or links on an online course management system to, helpful sources of current topics in the particular area of law. Most law schools’ librarians are willing and able to assist in creating such lists or links.  Professors can also encourage students to read ahead in the course materials, looking for topics that interest them that may not be covered until late in the course.  In addition, professors can schedule individual consultations with students to discuss the students’ particular areas of interest, possible topics, and resources that students could look to in narrowing down their possible topics. This option is a good choice for faculty who encourage students to move beyond the topics specifically covered in the course, particularly if the seminar is designed to include student presentations of their papers during the final weeks of the course. By allowing students to select their own topics, those presentations expand the scope of the seminar, with students becoming teachers of new material that they have researched and considered in depth by the end of the course.

In addition to providing lists or links for topic selection, it is also helpful for the professor to expressly identify, either in class or in a written handout, his or her specific goals for the students’ papers.  Such goals might include:

  • mastering a narrow topic relating to the subject matter of the seminar;
  • demonstrating original analysis of a legal issue discussed in the seminar or relating to its subject matter;
  • synthesizing complex material;
  • engaging in careful research of a subject;
  • proposing law-related solutions to problems relating to the seminar’s subject matter;
  • critiquing a position taken by scholars in the field; and/or
  • creating a dialogue in the seminar classroom.

Providing samples of past seminar papers that the professor found to be particularly strong could also be helpful in giving students some perspective on what the professor’s expectations will be – but be sure to provide multiple samples so that students feel free to explore different approaches rather than mimicking a sample. Once students know what the professor expects the paper to accomplish, they may feel more confident in selecting a topic.

  B.  Developing and Articulating a Thesis

Students often have difficulty understanding the difference between a topic and a thesis for their papers.  Once they have selected their topic, often they will dive into research and sometimes begin writing or even complete a first draft without articulating what the thesis is.  As a result, their drafts read like reports on their research or general discussions of a broad topic, and the paper lacks focus and direction.

Professors can help students with this process by requiring students to hand in express, written thesis statements and by providing feedback to students on their thesis statements.[4]  If an early thesis statement is required, the professor should expressly inform students that they are free to refine/revise the thesis as they work on the paper, as a thesis will often evolve during the research and drafting process.

A professor who expects students’ seminar papers to share the qualities of novelty, non-obviousness, and usefulness common in academic scholarly writing[5] should discuss the importance of conducting preemption checks before settling on a topic and thesis. To qualify as novel, the thesis must be distinct from what has previously been written on the subject. Thus, if a student has a point she wants to make on the topic at the outset of her research process, an express step in her research process must be to find and review what scholars have already written on the topic. If other scholars have already made the argument that the student intended to make, then the student’s thesis must be revised or refined, or the student will need to reconsider the topic and focus on something different. Discussing this process with students as they begin developing a topic and thesis will help them to anticipate that dead ends and shifts in focus are a common part of the scholarly writing process and to allow sufficient time early in the process.

Students will also benefit if the professor makes it clear that the novelty component of a scholarly paper does not require that everything that the student says in the paper should be something that has never been said before.  In fact, scholarly papers often build off of work that has preceded them, adding something to the current discourse in existing scholarly papers and judicial opinions. For example, a paper might note that there is an ongoing debate about a particular issue, describe the main points made by the key participants in that debate, and then go on to (1) offer new criticisms of certain of the arguments that have been made in the debate, or (2) offer new arguments for adopting one or another solution to the problem, or (3) propose an entirely new resolution of the problem.  Indeed, a paper might be original by pointing out that something is a problem that has not previously been perceived as a problem, or, conversely, that something that has been thought to be a problem is not in fact a problem.

It is often helpful to devote seminar time to having students discuss their draft thesis statements, with the entire class responsible for asking questions about and helping each student refine his or her thesis.  Requiring students to write out and submit a thesis statement early in the process highlights the need for them to begin the process of actively engaging with the issues. Professor and peer feedback on their initial thesis statements will help them to focus their research and craft a draft with a strong initial thesis.

When commenting on the first draft of students’ papers, the professor should make a point of identifying where in the paper the thesis is stated; if it is difficult to find or does not (at the very least) appear in the introductory and conclusion sections of the paper, the professor’s comments should highlight this issue. If it is imprecise, too obvious, or impractical, the professor can reserve time in the paper conference to brainstorm alternative iterations of the thesis.

Many students begin writing with one thesis in mind but end up convincing themselves as they write that a more moderate, or more extreme, or completely different, position is appropriate.  Students should be encouraged to continuously evaluate and adjust their thesis as necessary throughout the research and writing phases of the paper, but they should also be reminded to maintain a consistent stance throughout the paper.  When commenting on their drafts, the professor should watch for and identify sections in which the stance slips from neutral to argumentative, from confident to ambivalent, from analytical to descriptive.  Remind students that the reader should be aware of their position from the beginning of the paper and use the comments on the draft to point out arguments that are surprising to you as the reader because they seem inconsistent with or unconnected to the paper’s main thesis.

To help students develop their thesis statements, give them feedback on their submitted thesis statements (or in the seminar discussion) that asks them to consider the following:

  • What is the primary purpose of your paper? Is it to clarify a murky area of law, evaluate a decision or statute or line of cases, develop empirical data and interpret it, criticize a position, compare similar ideas in different contexts, or something else?
  • Who is your target audience? Are you writing for scholars who are experts in this area of the law, practitioners who advise clients in this area of the law, legislators who are drafting or revising statutes governing this area of the law, executives who deal with this area of the law in the business community, or some combined or other potential audience?
  • What is the intended scope of your paper? Keep in mind that you must be able to develop your thesis in a coherent, self-sustained manner within the required length and by the end of the semester.  Are your thesis and topic narrow enough to avoid the necessity of pages and pages of background introduction yet broad enough to warrant twenty-five pages (or whatever the requirement is) of discussion and analysis?
  • What stance will you take in your paper? You may choose to be strong, quiet, questioning, cautious, concerned, curious, or some other adjective.  Consciously select your stance, however, so that you can connect your stance on your topic with your feeling about the topic and thus maintain a unified point of view throughout the paper.
  • What is original about your theme? Indicate what you are adding to the field and what your paper will bring to the development of the particular theories that you discuss.

Examples of Comments on Draft Papers Relating to the Paper Thesis

Example 1 (relating to the paper’s Purpose, from an end note):  I know there is a balance to be struck between laying a foundation and building your own argument, but right now the paper seems to go in a couple different directions. As you revise each section, ask yourself whether the information you provide is closely tied to your ultimate thesis and whether the assertions you make in your ultimate proposal/recommendation are tied to information provided in the background sections. For example, the paper’s initial focus is on the shift in the industry from a property/ownership model to an access model, but when you get to your proposal, the focus shifts to discussing options for artists in offering their recordings for sale – there isn’t really any discussion of how artists get compensated from subscription streaming or what the issues are in that revenue-base for artists who act independently of labels. Thus, your discussion of possible solutions seems disconnected from the opening sections of the paper. Similarly, one aspect of your suggestions at the end deals with transparency by labels – but there was no preceding discussion of a lack of transparency as a problem relating to digitization in the industry, so it seemed to have come out of the blue. As you revise, think of the thesis (where you end up in the paper) as a guide for the rest of the paper – if sections of the paper don’t lead directly to the thesis either as background or as analysis, then they might belong in just a footnote or might not belong in the paper at all. If there are points that you make in the paper that are not tied to the ultimate thesis/proposal, then perhaps the thesis needs to be expanded/tweaked. We can talk about how you might focus the discussion as you revise.

Example 2 (relating to the paper’s Scope, from a margin note): This is a really interesting point – but it might take you down a rabbit-hole that is beyond the scope of the paper. How does it relate to or support your thesis? If you raise this issue, you will have to analyze its implications with some in-depth discussion of the First Amendment and the fair use defense. If these areas are ones that you don’t want to pursue in depth in the paper, then this point might be just a footnote rather than a main part of the analysis.
Example 3 (relating to the paper’s Purpose and Scope, from an end note): Let’s talk in conference about how best to deal with your discussion of 360 deals. Right now, it seems to be hanging out on its own, without any real connection to the preceding discussion and no foundation (no discussion of what typical deals looked like before the start of 360 deals). It seems like it might just be a footnote, but if you want to keep it in, it needs some foundation and a more direct tie to both the introductory/background sections and your ultimate thesis. Let’s talk about other options when we meet so that you can decide what approach is most consistent with where you ultimately want to take the paper.
Example 4 (relating to the paper’s Stance, from a margin note):  As noted above, it would be nice to see you take a stronger stance. This seems like a pragmatic conclusion but leaves the reader wondering what the point was of all the prior discussion of the difficulties inherent in global digital distribution of music and combating piracy – it seems like you are just shrugging your shoulders here and saying, “Oh well, tough luck for the music industry…” If en banc rehearing is unlikely, is this something that the Supreme Court could or should take up? If so, how should it decide the case – what do you think the right approach is? Are there ways to put limits on the Commission’s power that would address the concerns expressed by the court and the Internet powerhouses but still allow some enforcement?

 

  C.  Researching Materials Other than Cases and Statutes and Keeping Track of a Large Number of Sources

Although the first year Legal Research and Writing program in most law schools familiarizes students with researching cases and statutes and introduces them to some commonly-used secondary sources, students are often not familiar with the specialized legal resources that they will need to thoroughly research a seminar paper.  As a result, their research is often inefficient or incomplete.  In addition, scholarly research is typically different in nature from the research that students do in preparing to write client-driven documents like memos and briefs.  Problems in researching are also often related to the students’ indecision about a paper topic or failure to articulate and focus on an express thesis while engaging in research. Without a clear topic/thesis in mind, students can find themselves going down research rabbit holes, focusing on tangential issues rather than delving deeply into material that is most pertinent to their thesis.

Students often struggle with the sheer magnitude of sources of information available to them on a given topic.  Sometimes they do not yet have a complete understanding of the topic and thus they can benefit from referral to helpful secondary sources that will put the legal issue in perspective for them.  Sometimes their topic is too broad or their thesis statement not clearly enough articulated.  Sometimes they are unsure of the purpose of the document they are creating or the depth of their target audience’s understanding of the issue.  Will they need to lay an elaborate foundation for their analysis, or can they assume that the reader knows the relevant background information?  Identifying your expectations from the outset and requiring the students to expressly identify their target audience can help them to better focus their attention on the most relevant sources.

In addition to helping students with their topic selection, target audience, purpose, and thesis statements, professors can help students with the research process by providing them with research guides that are tailored to the subject-matter of the seminar[6] and by holding conferences with students to discuss their research process.  Professors can require students to hand in research reports so that they can provide feedback and guidance for students who seem to be struggling with research.  In addition, professors can invite the law school’s librarians to speak to the seminar about researching for seminar papers and can encourage students to set up individual research conferences with a reference librarian during the course of the semester for help with topic selection, preemption checks, and general topical research.

Providing students with guidance, either with a handout or an express discussion, about effective note-taking and organization of research materials can also help students to be more efficient and will enhance the quality of their final product.  Although the tools available on Westlaw and Lexis for tracking a research trail on a particular topic are helpful, they should not be relied upon as substitutes for the student’s own system for documenting and organizing her research – in part because research for a seminar paper will typically take the student well beyond either of these two commercial legal databases, and in part because note-taking and organization of materials is best if done deliberately and thoughtfully after reviewing the materials the student has found rather than merely being a reflection of the path that her research has taken.  Below are some suggestions to highlight with students regarding effective note-taking and organizing research findings to best suit the student’s individual writing process.[7]

  • Critical Researching: Tell students to focus their note-taking on their own thoughts, reactions, questions, and ideas that arise when reading the source. Is it a helpful source? Is it on point, or does it diverge from the thesis the student’s paper seeks to advance? Is it well-researched and argued, or are there flaws in the research and analysis? Note-taking that focuses on the students’ critical reactions to the source and how they think it relates to their working thesis will be most helpful in the writing process.
  • Supporting Normative Assertions: Encourage students to look for sources that lend support to value-laden judgments that support their initial thesis. Many students assume that certain results are inherently “good” or “bad” rather than working to establish those normative assumptions, leaving gaps in their analysis or weakening the foundation for their ultimate conclusions. As they research, they should be considering how they will support the normative assertions that they make in the paper.
  • Tracking Research: Remind students to write down the date of each source and the date when each set of research notes is made. Many students spend too much time repeating searches that they have already done or too little time following up on good research leads because they leave big gaps in time between searches and do not accurately track what they research or when they research it.
  • Noting Citation Information: Make sure students know to include all of the information needed for a proper Bluebook (or other citation manual) citation for each source that they think will be helpful. This information will be essential for the paper’s footnotes. If the citation manual is not handy at the time the student is researching, the student should be sure to include all of the information about the source that is available to her, including dates, authors, titles, and page numbers. Looking it up during the writing or rewriting stage of the process is a tremendous waste of time.
  • Dealing with Quotations: If the student is cutting and pasting materials from an online source rather than downloading entire documents, she should be sure to include the citation with the pasted material. Encourage students to take advantage of options on Westlaw and Lexis that allow them to “paste with citation” or to type the citation and pinpoint reference immediately before or after the pasted material. In addition to including the citation, remind the students to always place quotation marks around material taken verbatim from a source so that they do not run into plagiarism problems in the final product.
  • Tracking Ideas: Students should aim to be consistent in how they treat notes that are their own thoughts about information from a source and notes that are taken verbatim from a source. Using a marker such as a “*” or “#” next to or brackets around notes that are the student’s own thoughts/reactions to material will allow the student to be comfortable incorporating those ideas into the paper during the writing process and will still provide a citing reference for the inspiration for those ideas.
  • Creating Organized Notes and Research: Encourage students to create a deliberate and organized note-taking system. Although the computer revolution has left fewer and fewer students relying on traditional note-taking systems like note cards and legal pads, some still find it helpful to print out materials and organize them in loose-leaf binders or folders, separating material by topic or sub-topic in a way that makes it easier to have all of the relevant research materials on a given part of the paper in front of the writer during the drafting process. Those materials can then be marked up with margin notes, post-its, and/or highlights to remind the student of what she found most helpful or relevant in the material or what she wanted to say about it and to help her find specific materials more quickly.  Some students find color-coding systems to be helpful as well.
  • Using Online Organization Tools: If a student is comfortable working with documents in purely electronic form, individual computer sub-files can be opened for her notes and research materials and organized by topic.  Students who are working with a large number of research sources and materials may find it helpful to use one of the many research organizing tools available online, including Zotero, EndNote, Mendeley, and RefWorks, which can be used to store and organize research materials. These tools typically allow the user to import citations from research sources like databases and web sites, insert her own annotations, and create footnotes.  The Georgetown Law Library has published a helpful chart that sums up the features of some of these tools that students might consider reviewing to decide whether one of these tools might be helpful as they begin gathering research materials; it is available at http://www.law.georgetown.edu/library/research/citation-tools/features.cfm (note, however, that none of these organizing tools is a reliable source for proper Bluebook citation).
  • Using Active Thinking: Instruct students to use active thinking in their note-taking. Rather than merely transcribing key points from a source, students should focus their notes on how each source relates to their working thesis. Does it support the thesis? Which part? How? Instead of quoting (or cutting and pasting) long tracts from a source, it is typically more effective to paraphrase the source and explain how it relates to the topic/thesis in the student’s own words. Quotations should be clearly marked, with reference to the pinpoint page numbers, as noted above. Effective notes will also include questions that the student has about the source.
  • Mining Footnotes: Encourage students to keep a separate list of research tasks that come up as they read each source and to “mine” the footnotes of the material they find most helpful – to find and read the most relevant-seeming material that is cited by each key source.
  • Revisiting Research after Writing: Underscore the recursive nature of the research and writing process. Initial research should help students to identify an initial, rough organizational structure for their paper. As more helpful materials are found, they can be organized according to that initial organizational structure; choices can also be made about revisions to that initial structure if newly-discovered sources suggest new topics or a different organization.

When commenting on the draft seminar paper, the professor should address the effectiveness of the student’s research as it is reflected in the analysis and citations. Are there leading sources that are missing from the discussion and footnotes? Has the student addressed scholarly commentary relevant to the topic, or does the paper rely primarily on primary sources like cases and statutes?  Are the cited sources authoritative? Is the student over-relying on Internet sources?  Are there assertions in the draft that an experienced legal reader would expect to see supported with a citation to authority? Do you have suggested research strategies for the student seeking to fill research gaps as s/he revises the paper? Having these questions in mind as the professor reads and comments on each draft paper can help the professor to provide focused feedback on the student’s research for the draft and tips for expanding it in the rewriting and revising process.

 

Examples of Comments on Draft Papers Relating to Research

Example 1 (inadequate discussion of existing scholarship relevant to the topic): You have a solid start to your research and have found a good initial universe of authority supporting the interpretation of the various requirements for the DMCA safe harbor that are relevant to Facebook Live. As a general research matter, it will be important for you to look for more scholarly sources to support your analysis, as the current draft relies too heavily on just primary sources like the statute’s language, legislative history materials, and cases. Those sources are important and helpful, of course, but there has been a lot of scholarly comment on the DMCA and on the performance right (including law review articles more generally addressing compulsory licensing and its pros and cons, which would be helpful for your final proposal section). One purpose of your paper should be to “place” your arguments within the greater scholarly commentary on related topics even if no one has written about your exact topic. I encourage you to take a couple days and read through some of the past scholarly discussion related to your topic; I think you will find that it helps you to fine-tune your thesis and to expand both the introductory/background sections and to provide greater support to your arguments, both by anticipating and addressing some of the arguments that might be raised in opposition to what you propose and by showing that the concerns raised in your paper are important ones that need to be addressed.

Example 2 (additional research needed):  You’ve found some helpful materials as a starting point for the past performance right arguments, so the next step is to incorporate more of a variety of the available background materials into your citations and discussion.  You rely fairly heavily on just a couple of sources (or ones to be found later) for a lot of your background discussion, so I recommend doing some additional research into both primary sources like Supreme Court cases discussing the purposes of the Copyright Clause in the Constitution and secondary sources like scholarly articles advocating for or against an expanded performance right to lend further support to some of the discussion.  In addition, the Feb. 2015 Copyright Office report on the music marketplace will likely be a good source for you as you move forward, and you could mine the footnotes in that document to find even more helpful material.  I’ve noted quite a few places throughout where citations to authority would be expected, and I know that there are materials out there to support those points – the challenge will just be to narrow down the universe to what is most authoritative and helpful.

Example 3 (too much emphasis on a single source):  If there is ambiguity about what is required (and from your discussion, it seems like there is), then don’t feel wedded to just what the court analyzed in Cox. Are there other relevant cases or law review articles or amicus briefs that present alternative views? Present them here as well.
Example 4 (absence of support for normative assumptions):  Analytically, it would be helpful to perhaps include an expanded background section to incorporate more normative analysis about copyright protection and the importance of compensating those who create music for uses of their work in a changing business. In doing so, you might be able to find some themes from past controversies about balancing the copyright monopoly with consumers’ desire to use music in various ways, what the harm to composers and thus to society is likely to be if the new live streaming platform on Facebook becomes widely used and compensation is not available for uses of music in live streams, and what steps might reasonably be taken to address those harms. Right now the paper just assumes that live streaming without a performance license for music used in the stream is a harm that needs a remedy, but it would strengthen the paper to add just a few paragraphs to lay the foundation for why this is something Congress or Facebook should care enough about to take action.
Example 5 (absence of support for normative assumptions):  The “bad for the Internet” point is also an interesting one that deserves some unpacking if you are going to make it.  It might be interesting to include a preliminary section that addresses the normative concerns that are inevitably invoked in this context – i.e., why Congress has been so hesitant to regulate the Internet (which typically is more of an economics-based argument than a speech-based argument – encouraging innovation and expanding commerce over the web) and how those concerns played out in the compromise struck in the DMCA.  The Communications Decency Act could be a good example to bring in when discussing the normative issues, because it pretty clearly shows how Congress was concerned with the impact of regulations/legal liability on the movers and shakers behind the developing Internet. Congress wasn’t so much concerned with protecting speech over the Internet (i.e., the third party content providers’ speech interests) but was more concerned with protecting the economic engines behind Internet development against liability for third-party speech.  It is very helpful to include normative arguments regarding what is good/bad, harmful/beneficial to the Internet, but make sure that you are backing up value-laden assertions like this with authority and analysis.

 

  D.  Writing the Outline

Requiring students to submit some form of outline of their paper well before the draft paper is due can greatly enhance the quality of the draft. A draft that is not sufficiently researched or that is poorly organized can make it hard for the professor to provide meaningful feedback on the quality of the student’s thesis and analysis, so providing feedback on the outline is an opportunity for the professor to focus on those two foundational aspects of a strong paper.

Be specific about what information you expect to see students include in the outline and how far along in the research process they should be when writing it. Requiring students to list the main sources of authority that will be cited and to use an outline-numbering format (i.e., with main headings and sub-headings to show which points will be subsidiary to others) will help them to think about how they want to structure the paper and will help you to provide feedback about how each part of the paper might be more effectively organized or supported.

Requiring a detailed outline before the students begin writing their papers enables the students to set out their vision of the entire analysis of the paper without the need to worry about good prose.  Preparing this outline also will help to focus the student’s thought, reveal gaps in the analysis that must be filled and criticisms that must be dealt with, inspire new ideas that were not previously clear to the student, and force the student to consider the most effective organization for the analysis.

A good outline will provide a clear idea of the thesis, discussion, and probable conclusion of the paper.  It should be as detailed as possible, specifying particular arguments and sources that serve as the basic foundation of the thesis and starting points for additional research.  It should provide a coherent, logical framework of the arguments and discussion that the student intends to include in her paper.

In giving instructions about the nature of the outline and feedback on it to students, the professor should make sure that the students know they are not wedded to this initial outline; it will change as their research progresses and more ideas develop.  However, it is essential to have a good, starting roadmap to guide the students’ writing process.

Ideally, a student outline should include more than simply a list of topics that the student intends to discuss; a strong outline for a 25-page paper is typically at least three pages in length. It should sketch out the analysis that will be applied to the issue and the key authorities that will be examined.  It might include a discussion of the legal doctrine that is being criticized, examined, or discussed.  It might also list the key criticisms of the approach taken in the analysis and suggested responses.  To the extent possible at this stage in the student’s writing and analysis, it should also sketch out the student’s current thoughts about her conclusions and/or recommendations.  It should include a list of key references as well as a description of any additional research that remains to be done. These components will allow the professor to provide feedback that will help to guide the student in the writing process.

  E.  Writing the Draft Paper With Audience and Purpose in Mind

Students may have a strong understanding of the subject matter of their papers but will still produce weak papers if they do not have a clear understanding of 1) their target audience and 2) the purpose of the paper.  Engaging in an express discussion of your goals for the paper as a professor, forcing students to think about their audience, and requiring students to turn in a written thesis statement can provide students with a more precise understanding of the purpose of the paper.

Audience: Either during the seminar itself or during individual conferences with students, it can be very helpful to have the students expressly identify their target audience.  Are they just writing for the professor?  For the readers of a law journal to whom they might submit the paper for publication?  For the judges in a student writing competition?  For experts in the subject matter, laypersons, or lawyers without expertise in the particular area?  For legislators or judges who might be in a position to change a challenged rule of law?  Without a clear idea of the target audience, students have great difficulty choosing the appropriate level of detail to provide in analyzing their topic.  Moreover, without a clear idea of the students’ intended target audience, it is hard for the professor to provide helpful feedback about whether the student has provided an appropriate level of detail for his or her intended audience.

Purpose: In addition, students tend to organize their drafts around the sources that they consult rather than letting the substance of the legal topic and the purpose drive the organization of the paper.  Many of their drafts will read more like undergraduate research papers than creative legal analysis, with students reporting on the information that they have found elsewhere and quoting large blocks of text from authorities.  As you comment on their drafts, it can be helpful to identify the legal issues discussed in each paragraph, ask questions about the purpose of each section, and suggest ways that the document can be reorganized to focus the discussion on legal issues and sub-issues rather than focusing on sources of information.

Forcing students to clearly articulate their thesis before handing in a draft will help reduce some organizational problems.  In addition, requiring students to turn in detailed outlines well before their draft is due will give the professor an opportunity to determine whether the students have an appropriate understanding of the legal issue, to meet with students to discuss the complexities of the issue, and to provide feedback and guidance on more effective organizational schemes for the paper that students can use in drafting the paper.  In addition, when commenting on the draft, the professor can include an express discussion of the paper’s legal analysis and organizational structure, noting problems with analysis, omissions of issues or authorities, awkward transitions, order of presentation, and redundancy.  Ideally, such comments will give students a sense of the reader’s perspective on the paper and will suggest several possible ways to improve the paper’s analysis, purpose, and structure.  Often, creating a reverse outline for or with the student can help identify both analytical and organizational problems.

 

Specific Suggestions for Providing Guidance and Feedback

It can be difficult to determine whether a poorly written paper is the result of problems with the underlying ideas, or problems with the student’s ability to express those ideas, or both.  The following are suggestions for working with students to help them to craft stronger final papers for a seminar:[8]

  1.  Establish the Parameters of a Good Paper in Seminar.

Discuss what features you expect in good scholarly writing.  Assign an article, such as Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247 (1998), that addresses student scholarly writing,[9] and devote some time to discussing it in class. If you have them available, give students samples of good seminar papers – or give them a couple of A papers and a couple of B papers and have them evaluate which papers fall within each category and explain why.[10] If you do not have samples of student papers, it can be helpful to pick two or three short, published articles on subjects relevant to the course and assign them for the students to read, giving them specific questions regarding how well the papers are researched, how clearly (and where) the thesis is stated, how well (or poorly) organized the discussion is, what each section’s purpose is, and how well the thesis is supported with both foundational material and analysis. When students are asked to do the intellectual work of evaluating someone else’s work and expressly considering the structure of the article or paper and nature of the support provided for the thesis, and when they have an opportunity to discuss their evaluations in seminar, their own writing will be stronger as a result.

Talking with students in the seminar about their papers at each stage of the writing process will also keep expectations clear, enable students to ask questions as they work on the paper, and help the students to connect their work on their papers with the classroom rather than separating the paper from the seminar discussions.

   2.  Provide both General and Specific Feedback when you Comment on and Discuss a Student’s Draft Paper.[11]

The professor’s comments on the paper are an opportunity for the student to gain a better understanding of the expectations of the intended audience for the paper. If, as suggested above, you provide guidance to students before they write the draft paper about your expectations, then your comments can help the student to calibrate where she has met those expectations.  Praise strong elements of the draft and identity places where the paper still falls short of those expectations by pointing out specific examples of where the paper is effective and other places where it needs improvement. The feedback the professor provides on a draft paper should be formative, not summative, in nature at this stage of the writing process – i.e., designed to help the student improve the paper in the revision process without attempting to compare its quality to other students’ papers or to give it a grade.[12]

Look for patterns in the student’s draft – such as summarizing information rather than analyzing it in light of the paper’s thesis, making the reader wait until the end of a section to understand its purpose, failing to provide sufficient foundation or authority for an assertion, or organizing around sources rather than around topics – and use the comments to point those patterns out to the student.  In addition to jotting notes in the margins in response to specific points made by the student, include a cover or end note with several paragraphs that provide more global, overarching feedback as to the overall organization, depth of analysis, and tone of the paper.

 

Examples of Comments on Organization

  • Making a few organizational tweaks as you revise with help to make the paper flow even more smoothly for the reader.  First, you’ve included a general statement of your thesis and start to a traditional scholarly “roadmap” on p. 2, but it would be useful to be even more express about what each part of the paper will address and about what you recommend and why. Doing so will make it clearer to the reader how the pieces of the paper work together to support your ultimate thesis.

 

  • On page 22, you raise some arguments about the impact of the Internet on copyright protection. Organizationally, it would make sense to introduce these things in the earlier sections of the paper where you demonstrate that there is a problem in need of fixing. This seems like too late in the paper to begin to introduce new problems, and there is a fair amount of overlap in the background to the DMCA and this background in terms of how the Internet age has affected copyright.

 

  • It might be useful to more expressly break out subsections within more of the main sections that you’ve identified, to more clearly separate distinct points. If you do so, it would be helpful to incorporate guiding “roadmap” paragraphs at the start of each of the main sections, before you break out subsections (A, B, etc.), so that the reader understands from the start of a section how each subsection that follows leads up to and supports your ultimate thesis and what the progression of analysis will be within that individual section. Right now, you have what looks like a roadmap for part IV on p. 8, but it lists only three “threshold” requirements and then does not seem to really match the subsections that you include within that section.

 

  • I’ve also suggested including conclusions within each main part and subpart of the paper before you move on to a different section, so that the reader knows where the discussion is leading – every section should be funneling towards your thesis/proposal, so that the reader knows the relevance of the particular issue just discussed. In addition, an overall Conclusion section at the end would be helpful to wrap up the paper.

Examples of Comments on Depth of Analysis

  • It would be nice to see you get into some of the normative arguments here about why we impose burdens on certain parties and why we limit burdens on others in this context – some of those normative arguments could be introduced in the introductory section to show why the language was adopted that now exists, and then if you want to make the case that times have changed, you can do so with that foundation in place.

 

  • Ideally, this section would include a more detailed, concrete proposal that engages with some of the past scholarship addressing performance rights in sound recordings (most of those articles have been in favor of expanding the right, but for a variety of reasons). Right now, Part III is under-developed and seems to repeat your thesis at a general level without engaging in detailed analysis or support through citation to/engagement with past authority on the subject.  Without more development of this section, the rest of the paper is mostly agreement with prior articles that have made the same argument about why it’s time for greater recognition of performance rights in sound recordings, so this is the section that should be engaging with those prior articles more expressly and explaining why those arguments are even more strongly supported if the new digital marketplace and role of radio in that marketplace is considered in light of the Framers’ purpose underlying the Copyright Clause.  We can talk more in conference about ways you could expand this section to place your own “take” on the arguments and reasons why the hesitancy to provide a full performance right is no longer justified.

 

  • You mention the current statutory license for webcasters for the first time on p. 25, stating that you propose a similar model be adopted for live streaming uses of music. Ideally, because it seems to be an essential part of your proposal, the statutory license for webcasters would be explained in some depth earlier in the paper as part of the background, so that it does not come as a surprise at the end of the paper.

 

  • Let’s talk in conference about how best to deal with your application of the DMCA safe harbor provisions to Facebook Live in Part V.  You’ve done a nice job of laying out all of the requirements for the various potentially-applicable safe harbors in Part IV, but when you apply them to Facebook Live in Part V, you seem to be arguing just from the statutory language rather than applying the cases you’ve discussed for each required piece of the safe harbor protection. There are a number of options for addressing this – one might be an organizational tweak by merging Parts IV and V to include a paragraph or two at the end of each subsection that applies the requirement to Facebook Live, so that you are immediately applying the cases/provisions/legislative history that was just discussed for the particular requirement rather than making the reader wait. Another might be to incorporate more express sub-sections that mirror one another in Parts IV and V and that allow you to isolate individual issues and apply them using the precedent. Let’s talk about other options when we meet so that you can decide what approach is most consistent with where you ultimately want to take the paper.

 

Examples of Comments on Tone or Stance

  • The introduction to the paper does a nice job of explaining the topic and thesis of the paper, but it is fairly dry in tone. If you can think of a good, real-life example that illustrates the problem your paper is trying to solve, that can often be a good way to “bookend” the paper – at the start of the Intro by engaging the reader in a compelling illustration of why there’s a problem that needs fixing, and then coming back to it in the final section to show in a concrete way how your proposal would be at least a step towards a better solution to the problem.

 

  • My biggest suggestion moving forward as you revise is to work on your final section(s), to tie the different pieces of the discussion in the paper into a cohesive stance that addresses how you think Barbados should address the issue of cultural appropriation – what options does it have that might provide its artists with greater protection against cultural appropriation than exist in the current legal regime, and how can it avoid the same problems that exist under U.S. law in protecting (or not protecting) against cultural appropriation?  Right now, it’s not clear where you ultimately want to end up, and without knowing where you intend to end up, it is difficult to make choices about what discussions are important foundation for that ultimate conclusion and what discussions are tangents that don’t advance your actual thesis.  We can talk more in conference about ways you could expand these final sections to place your own “take” on the issues and what you ultimately decide to recommend.

 

In crafting the cover or end note, it is helpful to try to list the two or three (but no more than four, to avoid overwhelming the student) priorities that the student should focus on in revising the paper.  Think about it as a form of triage and let the student know where her efforts are most needed for improving the paper. If it lacks a clear thesis, for example, the student should work on clarifying the thesis before addressing organizational problems in the background sections of the paper; clarifying the thesis will likely help the student to then make choices about how to best organize the background sections to lend support to that thesis. If the paper is missing foundational information to support the thesis, researching and drafting the missing foundational sections will likely be a priority for the revision process. However, it is also helpful to praise the parts of the draft that you believe are strong, or that are at least a good start. If you can point to an example from the student’s own work in the draft that is effective, she will have a better sense of what her audience expects and how to approach revisions to sections that need more work.

Example of Introductory Paragraphs to a Cover/End Note

Below are some general points to consider as you finalize the paper.  You’ve selected an interesting topic and have a strong start on supporting your thesis; it’s clear that you’ve given some careful thought to this area of the law. The next steps as you revise are to flesh out your ultimate proposal more precisely, to be sure to lay the foundation for the points that you want to make, and to address some of the potential obstacles your proposal might face in being implemented.

In addition to the specific margin comments above, below are some general points to consider as you finalize the paper.  This is an interesting paper, building from past analysis with a timely example. My main recommendations for you moving forward are (1) to think about how best to organize the discussion so that the focus is on your main goal of the paper and (2) to more expressly develop the thesis so that the paper leads in a clear direction and is focused on supporting that ultimate thesis.
In addition to the specific margin comments above, below are some general points to consider as you finalize the paper.  You have a strong start on the background information regarding arguments made in support of and against an expanded performance right in sound recordings.  The main focus moving forward should be on providing a bit more detail regarding the background information and then fleshing out your third section in more depth so that you are able to better support the argument that the issue should be framed as a constitutional imperative rather than as a business issue and can more directly address how  your argument is distinct from those made in the past.

 

When reviewing your comments and revising their papers, students will focus on “fixing” specific problems that you note in the margin, but their papers might be more in need of a complete restructuring or additional analysis.[13] Thus, resist the urge to act as the student’s editor. Keep line-edits and corrections to a minimum, or omit them entirely in favor of a more general note reminding the student to proofread carefully on the final paper. Other common issues that you might briefly point out in a general manner in the cover or end note in lieu of line editing the student’s draft, perhaps with a page number reference or an example, might be repeated comma issues; improper citation form; use of jargon or long, complex sentences; use of elegant variation instead of using consistent terminology for important legal concepts; or overuse of transitions like “moreover” and “however.” Students will learn more from looking through their own paper for these common writing or proofreading issues than from mechanically applying corrections that the professor has made to the draft, and the professor’s time in commenting is better spent in crafting comments that will help the student to rethink her premises, expand her research, fill in gaps in analysis, and organize her ideas more effectively.

 

Examples of Polishing Comments as a Substitute for Line Editing the Student’s Draft

In the cover or end note, include a category called “Miscellaneous” or “Editing” or whatever is most appropriate for the content you will include there. This can serve as a substitute for line-editing in the paper itself. Below are examples from end notes on a student seminar paper.

Miscellaneous

I know you were still in the midst of figuring out where you wanted to take the paper, but be sure to proofread carefully for the final version and bluebook all of the citations.  I’ve noted a consistent pattern of comma errors (e.g., see where I’ve marked in the margin on page 10), so watch for those as you revise. For those sources that don’t have a clear category in the Bluebook, just make sure to provide enough information in the citation that the reader is able to track down the source if needed (e.g., author(s), title, date, page numbers, and URL if available).  There were quite a few places that I’ve indicated in the margin where the reader would expect to see citations, so if you have trouble finding sources for some of those items we can discuss possibilities in our conference.

I’ve also noted a tendency for you to write really long, complex sentences (particularly when you are trying to incorporate a quote), and as a result, important information gets buried in the sheer volume of material conveyed in a single sentence.  As you revise, work on taking it a little slower and walking through the points that you are making in a series of sentences rather than trying to say it all at once.

Thus, in the margins, instead of providing edits to the student’s language, ask questions to prompt the student to rethink her premise; identify what the reader expected a particular subsection or paragraph to address and why that expectation was not met; give prompts for where more explanation of or foundation for a point is needed. Brooke Horvath’s article[14] lists several types of formative responses that can be useful tools for faculty when commenting in the margins on specific pieces of a draft paper, the most pertinent of which are:

  • Describing: What is this portion of the text addressing? Is it consistent with what the author said the purpose of the section would be, or has the author deviated from that purpose? Marginal notes that describe the reader’s understanding of what a paragraph or section is doing can be used to show students where an idea is repeated or out of place or where a section is attempting to accomplish too much.
  • Questioning: Although overuse of questions in the margins can be frustrating for students, judicious use of questions can help students to retain ownership over the material but to recognize where their draft does not adequately explain a point or support it. Questions have the benefit of being non-directive – they do not necessarily (if well-crafted) suggest an answer, but allow the students to see where their reader is confused and to develop strategies for addressing that confusion.
  • Reminding: Cross-referencing assigned readings and class discussions in comments on papers can provide powerful reinforcement of concepts discussed in the seminar and how they might apply to the student’s paper topic and thesis. Reminders of materials provided or class discussions of the paper-writing process, expectations of the audience, and research tips can also be effective tools in helping students to find strategies for improving the paper. Remember to use the same vocabulary about writing that you have used during the seminar and in the readings.
  • Assigning: Giving the student an assignment for the paper conference as a part of the written feedback on the draft paper can be a very effective technique. Assignments could include rewriting the thesis statement, outlining a new structure for the paper, revising a section or paragraph to incorporate opposing views or provide more foundation, doing additional research and bringing the results to the conference, or drafting a new paragraph or section that addresses gaps in research or analysis. Giving an assignment in the written feedback on a draft paper can be an effective tool for the professor to evaluate whether the student has understood key feedback in the written comments and for focusing the discussion during the conference.

The assignment mode of formative assessment is particularly effective in a cover or end note, as it helps to focus the student on a key issue that needs to be addressed in the revision. In addition, using headings in the cover or end note to identify the two or three overarching priorities that the student should focus on will help the student to “re-envision” the paper when revising. It will also help the professor to tailor the cover/end note to the big-picture, take-away points for the student. Some common topics to address in the main headings of a cover/end note include Research, Analysis, Organization, and Stance. Keep in mind, though, that you will need to avoid overwhelming the student with minutia in the cover/end note. Use it to point the student to the key issues that the revision will need to address for the paper to be more effective.

For more information, see Chapter 1 on Commenting.

  3.  Use the Conference[15] to Discuss Both Product and Process.

Holding a conference with students after they have had an opportunity to review the professor’s comments on the draft paper is an effective supplement to the written comments on the paper, particularly if the professor ensures that the conference is not merely a rehashing of the written feedback. Too often, the focus of paper conferences between the professor and a student ends up being the product – the text of a draft and the ways in which it is deficient – without any discussion of process.  A focus on the problems with the paper can overwhelm the student and leave her without a clear idea of how to convert the deficient draft into a strong final paper. The professor should thus try to use the paper conference to discuss both the stage in the student’s writing process in which the problem most likely occurred and to help the student develop a step-by-step approach to remedying the problem.

Possible product-based problems that you might have identified in your comments on the draft paper include the research, content, point of view, organization, or thesis.  Problems in research could relate to the nature of authority cited, the scope of authority cited, or gaps in authority. Problems in content could include substantive errors, lack of depth, or too little analysis. Problems in point of view could include the failure to take a stance or the failure to recognize competing arguments. Problems in organization could involve the absence of guideposts like roadmaps and headings, the repetition of ideas, the placement of foundational material too late in the paper, or the lack of express connections between different ideas or sections and the ultimate conclusions of the paper. Problems in the thesis could include lack of clarity, lack of specificity, lack of originality, or over-breadth.

Each of these problems suggests a different process for revision for the student:

  • A problem in the research or content might require the student to circle back to the prewriting phase of the paper, and you might suggest secondary sources or other materials for the student to read to help address the problem. A consultation with a librarian for research help could be recommended, or the professor could have the student explain or demonstrate her research process in the conference itself so that the professor can make suggestions for improving the process.
  • A problem in the point of view or organization of the paper might require substantial rewriting, moving pieces of existing text around and adding sections, and thus the professor might have the student write out a new outline for the paper during the conference so that they can discuss various options for expanding, moving, or combining sections.
  • A problem with the paper’s thesis might be addressed in the conference by having the student explain how she arrived at her thesis, what materials best support that thesis, what materials might conflict with her thesis, and how she could revise the thesis to address the problem. Having the student rewrite the thesis statement in the conference is also an effective tool. Often, the exchange during the conference will lead the student to verbally state her thesis much more effectively than she did in the draft paper; if the professor asks her to write it out during the conference, she will leave with a start on revision and a clearer sense of where her final paper will take her.

For more information, see Chapter 2 on Conferencing.

  4.  Send Students to the Writing Center to Discuss their Papers.

The more feedback the students get, the more effective their papers will be.  Many schools have writing centers designed to help students in the writing process. For example, at the Georgetown Law Center’s Writing Center, “Senior Writing Fellows” are trained to assist students in selecting topics, refining research strategies, organizing complex materials, drafting and redrafting for the scholarly audience, framing a thesis, and polishing.  The Writing Center also has a library of examples and a database of helpful guide sheets, located in the Useful Documents tab, on a variety of topics relating to legal research and writing, many of which are available on the Writing Center’s web page.  More information about the Writing Center can be found on the Law Center web site at http://www.law.georgetown.edu/writingcenter/

[1] See, e.g., Joseph Williams, On the Maturing of Legal Writers: Two Models of Growth and Development, 1 L. Writing 1 (1991) (discussing the cognitive difficulties faced by novices in a new field of discourse); Linda Flower, Negotiating Academic Discourse, National Center for the Study of Writing and Literacy, Technical Report No. 29 (2003), at http://www.nwp.org/cs/public/print/resource/615 (discussing student writing difficulties when entering a new discourse community in the context of college freshman composition courses and academic writing expectations).

[2] See generally George Hillocks, Jr., The Interaction of Instruction, Teacher Comment, and Revision in Teaching the Composing Process, 16 Research in the Teaching of English 261-78 (Oct. 1982) (discussing process approach to teaching writing and effectiveness of teacher intervention in students’ writing process); Nancy Sommers, Responding to Student Writing, 33-2 College Composition and Communication 148-156 (May, 1982) (emphasizing that effective feedback on student drafts recognizes that the work is still in progress, focusing on ideas underlying the work and how they might be better developed rather than on line edits).

[3] At Georgetown Law, seminar papers that satisfy the upper class writing requirement must be at least 6000 words in length, not including footnotes. This translates to approximately 25 pages. See Georgetown University Law Center Student Handbook of Academic Policies, Juris Doctor Program, page 5, available at http://www.law.georgetown.edu/campus-services/registrar/handbook/upload/Juris_Doctor_Program.pdf.

[4] For a helpful discussion of considerations involved in choosing a thesis, see Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247, 248-52 (1998).

[5] See Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247, 248-52 (1998).

[6] Georgetown’s law librarians have welcomed requests from faculty to create a research guides for specific subject matters and have made them available on the Williams Library web page.  See Research Guides, http://www.law.georgetown.edu/library/research/guides/index.cfm (last visited August 10, 2016).

[7] Thanks to Prof. Jill Ramsfield, former Director of the Writing Program, Georgetown University Law Center, for an early version of this set of tips for note-taking when students research papers, which has since been revised over time and updated to incorporate technological tools for organizing one’s research.

[8] Some of these suggestions are adapted from materials prepared by Prof. Jill Ramsfield and the GULC Writing Center. For a series of specific guides for students on various aspects of writing a seminar paper, see the “Useful Documents” link on the GULC Writing Center webpage: https://www.law.georgetown.edu/academics/academic-programs/legal-writing-scholarship/writing-center/usefuldocuments.cfm.

[9] Other helpful articles include Elizabeth Fajans & Mary Falk, Scholarly Writing for Law Students (4th ed. 2011); Richard Markowitz, Legal Scholarship:  The Course, 48 J. Legal Educ. 539 (1999); Richard Delgado, How to Write a Law Review Article, 20 U.S.F. L. Rev. 445 (1986); and Jessica I. Clark & Kristin E. Murray, Scholarly Writing (2010).

[10] Because many students learn by using models, if you provide examples you should try to provide several, so that students can see a variety of appropriate models.  Evaluating or comparing samples as a part of your seminar discussions with the students allows you to point out – or to have them point out – effective writing techniques such as a precise thesis statement, strong organizational techniques like headings and roadmaps, consistent stance, recognition of potential counterarguments, and appropriate use of authority.

[11] For more on effective commenting on student work, see the Chapter in this book on Commenting. Although it is aimed at professors of first-year LRW courses, the advice is easily transferable to commenting on seminar papers.

[12] ABA Standard 314, effective for the incoming class of law students in 2016, requires law schools to provide both “formative” and “summative” assessment methods across the curriculum as a means of improving student learning. Formative assessment provides meaningful feedback to students that they can implement in subsequent work for the course, whereas summative assessment occurs at the end of a course to evaluate learning. American Bar Association, 2016-2017 Standards and Rules of Procedure for Approval of Law Schools, Standard 314, available at http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2016_2017_standards_chapter3.authcheckdam.pdf.  Seminars that require papers are an ideal place in the typical law school curriculum for employing formative assessment techniques in compliance with the new ABA standards.

[13] See Nancy Sommers, Responding to Student Writing, 33-2 College Composition and Communication 148-156 (May, 1982).

[14] Brooke K. Horvath, The Components of Written Response: A Practical Synthesis of Current Views, Rhetoric Review, Vol. 2, No. 2 (January 1984), available at http://www.jstor.org/stable/465572.

[15] See the Chapter in this book on Conferences for more on holding effective conferences. Although it is aimed at teachers of first-year LRW courses, the advice is also applicable to conferences on seminar papers.