Successful Student Online Legal Writing

I am teaching a seminar at Yale Law School this term, and the students there asked me—based on my experiences with Lawfare—to give a talk about student online writing. (I am also teaching a how-to “laboratory” at Harvard Law School for students who want to write for Lawfare.) One needn’t choose between online, bloggy forms of writing and more traditional law review forms. (I write both, and other forms as well, as do many professors.) But I believe that the shorter, more relevant, less normative online style is (in general) a more useful form of student legal writing than the traditional student law review note. I also think online writing is a more productive use of student time, measured in terms of influence and amount learned per word written or hour spent on the project. Harvard Law School now has many professor-run, student-involved blog-like projects that involve this form of student online writing, including Lawfare (which is not Harvard-affiliated but on which many Harvard students write), OnLabor (run by Ben Sachs), The Global Anticorruption Blog (run by Matthew Stephenson), Court to Table (run by Jacob Gersen), and SHARIAsource (run by Intisar Rabb, forthcoming).

What follows is a write-up of my notes from my talk at Yale last week.

***

Why write for the public in law school? Many possible reasons, including (a) to generate writing samples for various audiences (including judges and employers), (b) to develop expertise, (c) to signal interest and expertise in a topic to a community of scholars or practitioners, (d) to practice and thus improve one’s writing, (e) the joy of discovery, or of figuring something out, or (f) to have influence (even if that means nothing more than someone reading your work). Online student writing can satisfy (a), though judges and employers often want longer and more complex writing samples. But compared to the traditional student note, online writing is often—I would say usually—a better way to satisfy (b)-(f). I think this because students can write many more online pieces; because they spend significantly less time on substantively irrelevant tasks (e.g. blue booking and responding to superfluous multiple rounds of editing); and because online pieces in general are more widely read. (These claims are too simple, but to put them another way: I am confident that the student pieces written for Lawfare are read carefully by more people than the same students’ notes for the Harvard Law Review, even though the notes take considerably more time and energy to publish.)

Certain kinds of student legal writing tend not to work well online. Long, involved, heavily footnoted, pieces—indeed, anything that requires footnotes as opposed to hyperlinks—are usually not a good fit. Relatedly, the “Cult of the Big Idea” is antithetical to good online student writing. Students should also avoid opinion pieces. Successful opinion writing is very hard. Unless the student is a recognized expert, or has significant independent credibility, or publishes in a fancy online space (like the New York Times), there just isn’t a wide audience for students’ opinions. I do not mean to insist that students should always and everywhere eschew normative writing online. Sometimes a normative critique by a student (of a report, or a legislative proposal, or even a judicial decision) that is highly analytical and that turns on settled legal principles can be effective. But in general, student online pieces—at least ones written for legal audiences—should steer clear of the normative.

What works better is non-normative writing that is useful to an audience. That means that students need to identify the relevant audience and then write for it in a useful way. Here are three imagined or model audiences that can help guide online student writing.

First is the senior counsel who wants to get up to speed on a topic fast, perhaps in response to rapidly emerging events. What she needs is a brief, clear explanation of the context, issue, and applicable law (and perhaps policy), with links to primary and secondary sources in case she wants to follow up or needs more detail. Think of a clear 1-2 page memo on a new case or statute or regulatory development for someone with limited time who is generally knowledgeable of the field but not specifically knowledgeable about the issue.

Second is the lawyer who is interested in but not expert in the field, and who wants to stay abreast of developments. Imagine (in the Lawfare context) a federal judge who occasionally sits on national security cases and who wants to keep abreast of non-justiciable national security law developments.

Third is a lay audience reader who needs an emerging news issue to be placed in legal or legal policy context. The ideal type here is a journalist who is writing about a current event and wants to understand the legal background.

There are other potential audiences, many of which combine features of the above generic types. The main point is simply to consider your audience and try to write for it in a way that it finds helpful. The goal is a work product that seeks to satisfy the demand side, not the supply side.

Once you have identified the audience, what counts as useful writing for it? The basic answer is a piece on an issue that the audience cares about but that is under-analyzed or not yet analyzed. The piece must be written with clarity, accuracy, insight, credibility, and with links to sources.

This is easier said than done, of course. It may help to provide examples.

Perhaps the easiest form of student online writing is the explainer on a case or statute or regulation. Here are some examples:

• Easing Access to Assets for Victims of Narcoterrorism
• Iran Sues the U.S. in the ICJ – Preliminary Thoughts
• Dispute in the South China Sea: A Legal Primer
• The Israeli Supreme Court Debates Counterterrorism Home Demolitions

A second useful form of student post is the law behind the news. This too is an explainer of sorts, but it builds off a news event and elucidates its legal background or implications. Some examples:

• “Brexit” Hangover: The Morning After a “Leave” Vote Explained
• Explainer on the AP Subpoenas Controversy
• The FBI Impersonates the Media: Some of the Rules Governing Cyber-Subterfuge

A third form I call positive analysis. In this form of writing the student explains something non-obvious that is going on in the legal world that the audience is interested in but did not know about. A lot of the value here is in collecting relevant documents in one place and then analyzing those documents intelligently. These topics often take more expertise and imagination (or a law professor recommendation) to discover. Examples:

• The Obama WPR Letters, 2009-2015
• Why Are the Lower Courts (Mostly) Ignoring Zivotofsky I’s Political Question Analysis?
• Prosecuting Terrorism in State Court
• Who is on Board with “Unwilling or Unable”? (combined student-professor post)

A fourth form is a regular roundup of legal news on underdeveloped/underanalyzed topics. For example:

• Water Wars
• Military Commission Hearings
• Hot Commodities (written by a fellow, not a student)

Finally, you can simply pick an area to cover and develop expertise. If you write about a discrete topic over time, you and your prior work can become valuable if one of the things you write about becomes a news event. And even if no particular area of your coverage becomes major news, you can still develop important expertise and an audience by writing regularly on a single topic. For example, one of Lawfare’s student writers publishes regularly on terrorism prosecutions (see here and here and here), another posts about FOIA (see here and here and here), another covers developments in Israeli national security law (see here and here and here), and a former student writer covered developments in French surveillance law (see here and here and here). Because this approach requires a medium-term time commitment, it is most successful when it grows out of deep intellectual or professional interests and involves a topic you enjoy for its own sake.

All of these forms of writing are much harder than they look. Some further observations and suggestions:

• Just because a piece is short doesn’t meant you don’t need to know a lot. You do need to know a lot. Student notes often contain sections on everything the student learned about the topic in getting up to speed on the topic. In online writing the background learning tends to be implicit or more concisely stated.
• Online writing puts more of a premium on good writing than a (serially edited, stylistically reductive) student note. Online you have more flexibility to develop a personal style. But whatever your style, vivid clear writing is crucial.
• Also important is “the hook”—the engaging opening sentence or paragraph that grabs the reader. The reader needs to be drawn in at the start and to understand what the piece is about by the end of the first paragraph.
• One challenge for online writing is to be concise while also being complete. You need to walk the reader through the contextual and factual and legal details that will enable it to understand the stakes and your analysis, but without going on and on needlessly. The sweet spot is an analysis that is true to the topic but that presents the material succinctly and gets into the doctrinal weeds only to the extent that it necessary (and it is sometimes necessary) to make your points. If possible, use colorful examples or implications to bring the legal analysis alive, so to speak. Try to make the piece fun to read.
• To repeat, hyperlinking is crucial. You do a great service for readers by collecting sources, especially primary sources. And hyperlinks to more developed background materials can help you to be concise.
• Avoid cute headlines. The strongest headlines simply state what the piece is about.
• It is crucial to get feedback on drafts. The laborious note-editing process focuses too heavily on non-substantive matters and often has too many editing rounds. But you need feedback from peers (and professors, if possible) to ensure that the piece is analytically sound as well as readable and engaging even to non-experts.
• Even if your work is great, the number of eyeballs on it will depend a lot on where you publish. It can be hard for publications on pure student sites to generate wide readership, though I believe that the guidance above can help to expand readership. Social media can also help. If your publication establishes a much-followed twitter feed, perhaps based on someone’s skill in rounding up relevant news or commentary, the content on the site that is distributed through that feed will be read more widely read. That said, it is important to remember that page views don’t necessarily correlate with impact. Both students and scholars on Lawfare have published pieces that generated little reader traffic but that provoked responses from important readers, such as lawyers in government and private practice who were litigating the issues at hand. The ability to tangibly inform and participate in the real-time intellectual and professional discussion, even in small ways, is what makes online writing fun and potentially important.

Good luck!