LEGAL RESEARCH PROJECTS1

DAVID G. POST2

Revised: August, 2014

This document is designed to be read in conjunction with my “Writing Guidelines” (see http://tinyurl.com/pfp6vaq), and covers a series of questions you need to consider as you begin work on a legal research project (such as a law journal note, a guided research project, or a seminar paper). Look through my Writing Guidelines from time to time (like, for instance, now); I hang people out my window by their thumbs if they fail to pay attention to what's in there.  Just kidding! - but I have worked hard on that document, and I take everything in it seriously, and I expect you to do so as well.

There are any number of guides to legal writing generally; Bryan Garner’s book on legal writing, The Elements of Legal Style, is an outstanding guide. More specifically, there are a number of very helpful guides to writing research papers:

Eugene Volokh, “Writing a Student Article,” 48 Journal of Legal Education 247 (1998) (also available on the World Wide Web at http://www.law.ucla.edu/faculty/volokh/writing.htm), and his book, “Academic Legal Writing.”

Elizabeth Fajans & Mary Falk, “Comments Worth Making: Supervising Scholarly Writing in Law School,” 46 Journal of Legal Education 342 (1996)

Pamela Samuelson, Good Legal Writing: Of Orwell and Window Panes, 46 University of Pittsburgh Law Review 149 (Fall 1984) (available at http://www.sims.berkeley.edu/~pam/papers/goodwriting.html

There are lots of good ideas in each of these articles to help you think about and organize your project.

GETTING STARTED

THE FIRST STEP IS TO DEVELOP A GOOD RESEARCH QUESTION BEFORE YOU BEGIN THE REAL WORK ON YOUR PROJECT.

Developing the ‘right’ question(s) for your paper is not easy, and may take a considerable amount of time. It is also probably the single most important part of the entire process, and you must have it completed before I will approve your project, i.e., before the start of the semester in which you will be working on the project.

I have included some ideas below (and in my Writing Guidelines) on (a) what constitutes a “good research question,” and (b) how you develop one. You cannot wait until the semester

1 These Writing Guidelines are distributed under a Creative Commons Attribution License (ver 2.5, available at http://creativecommons.org/licenses/by/2.5/. Please copy, redistribute, and reuse.2 Comments always welcome: david.g.post@gmail.com.Guided Research ProjectsD. PostPage 1

begins to formulate your question, because it can take weeks of work to get it in shape, and then you will have wasted too much time to expect to be able to complete the task in the time allotted.

Once you have a good question (or set of questions), your task is straightforward: answer it/them. That does not mean what you think it means. It does not mean that your task is to find the “correct” answer. If you have formulated a good question, there is no “correct” answer; that’s what makes it a good question, that there are good arguments to be made on both sides. Your task, then, is to choose one side – your thesis – and then to prepare the best argument you can that your answer to the question is the best one available.

You will be getting a lot of assignments like this in the course of your legal career; think of this as practice for those. Think of me as a partner or senior associate in a law office who has given you an assignment: I need to know the answer to this question (or set of questions – the one(s) that you have formulated); please provide it to me. There are some things which make this one easier and perhaps more pleasant; I have a lot more time available to help you than most partners or senior associates do, and it is, in fact, my job to do so.

What’s a good research question? And how do you find one?

You cannot write persuasively until you know what you are trying to persuade your readers about, and you can’t have a well-constructed argument until you know what question(s) you are addressing.

1. Choosing the Question

You have to begin by choosing some topic to write about, some general area of the law on which you will focus your attention – e.g., “look-and-feel” copyright protection for software user interfaces, or patent protection for video game programming techniques, or application of common law privacy torts to social media disclosures, or current proposals for “network neutrality,” or international copyright, . . . etc.

That’s the (relatively) easy part; it should not be too difficult for you to find some general area of the law that you think might be particularly interesting and that you would like to spend more time thinking about. The difficult part is finding the legal question(s) within that general area on which to focus.

To begin with, plan on spending several weeks reading whatever you can get your hands on about the general area. One good way to find relevant material is to enter your topic as a search query in Lexis or Westlaw, using their “natural language searching” functions. See what pops up, both in the case database(s) and in the law review databases. Do the same thing at Google or any of the other WWW search engines, and spend some time exploring whatever pops up that looks interesting.

Another excellent source for refining your topic into a research question are the various BNA publications (US Law Week, Copyright Law Reporter, Internet & Electronic Commerce Law Reporter, etc.) that summarize important current legal cases. What are the legal issues that

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people are fighting about? If there’s litigation in which the interpretation of some statutory phrase, for instance, is a critical issue, or the precise application of some old concept to some new circumstance, that tells you that there are (probably) good arguments on both sides of that issue, and that it matters out there in the real world which side has the better arguments – both of which are characteristics of a good research question.

The point of all this general research is to find the specific question(s) that you will be focusing on and to which your paper will attempt to provide an answer. “The enforceability of shrinkwrap licenses” is an interesting topic, but it is not a question that your paper can answer – indeed, it is not even a question at all. Your job during the first few weeks after you have chosen your topic is to find the question within your topic area that

(a) is likely to be interesting enough to support a fairly extensive treatment (i.e., that is not so narrow that it can too easily be disposed of in a few pages), and

(b) is not so broad that it cannot be adequately answered in the space that you will be devoting to it; and

(c) that you can answer using the tools of legal analysis and argument that you are learning in Law School (i.e., reading and interpreting cases, statutes, treaties, and the like to construct an argument about an issue of law).

For example, if you have chosen any of the following topics, here are examples of some good questions; these are just examples off the top of my head, and are not meant to constrain you in any way, but only to give you an idea of what I mean by a good research question around which you can structure your paper:

Topic: Shrinkwrap licenses

Questions:1. Are shrinkwrap licenses pre-empted by the Copyright Act?2. Are shrinkwrap licenses enforceable under the provisions of the proposed Uniform Commercial Information Transactions Act (UCITA)?

Topic: Patentability of computer software

Questions:1. Are the PTO Guidelines on software patentability consistent with the Supreme Court

and Federal Circuit precedents?2. Does the Freeman-Walter-Abele test for patentability have any continuing vitality?

Topic: Computers and privacy

Questions:1. Is employer monitoring of employee e-mail communications a violation of the Electronic Communications Privacy Act?

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2. In what circumstances is the use or disclosure of consumer information derived from Internet usage prohibited?

And so on. These are, of course, just examples.

Two practical suggestions: first, define your question very narrowly. It is very likely that, as you do your research, you will find that the question you have asked is more complicated than you originally thought; if you begin with a very broad question, your paper will quickly become completely unmanageable. When thinking about formulating a good question, ask yourself: will I really be able to formulate an answer, supported by a persuasive argument, to this question in the amount of space and time I have to work with? You can’t solve all the world’s problems in a single research paper, and you shouldn’t try; it is much better to have a well-formulated paper answering a narrow question than an incomplete and messy argument focusing on a very broad question.

Second, keep in mind the distinction between “is” questions and “ought” questions. An “is” question asks “what is the law governing X?” An “ought” question is “what should the law governing X be?” My advice: Avoid ‘ought’ questions. The task of persuading the reader that the Patent Act should cover business methods, or that Congress should enact additional protection for databases, or that employer monitoring of employee e-mail should be prohibited, is not only more difficult than answering the equivalent “is” questions, it is a task for which you lack, in most cases, the proper tools. The tools that are specific to the law, the ones that you are learning in law school – fundamentally, how to read cases and statutes – are almost always inadequate for “ought” questions.

3. Formulating the Argument (The Outline)

Once you know the question that you will be focusing on, the paper, fundamentally, consists of nothing more (!) than your answer to the question you have posed, along with a logical argument designed to persuade your reader that your answer is, in fact, the best available one. Do not think of this as “finding the correct answer” to the question; think of it as formulating the best argument you can in support of one side or the other. Generally speaking, it does not matter which side you take; a good research question, by definition, is one on which there is substantial disagreement about which answer is correct, and supporting arguments for both sides.

This is an iterative and dynamic process. After you have selected a question, you may do research on that question and discover that there is a different, related question that is in fact more interesting. Or, as you are constructing your argument in support of one side you may realize that your initial answer is in fact completely wrong, and that the evidence strongly supports the opposite conclusion. This is not only unavoidable, it is part of what makes this process interesting and exciting – and you must be flexible enough to be open to modifications of all of these components as your research proceeds.

But being flexible does not mean proceeding without any goal in mind. The best way to accomplish this project is settle on your preferred answer early in this process, and then to get to

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work producing the argument that supports that answer. This is a bit counter-intuitive; your instinct is likely to be that you want to “wait until all your research is completed” before settling on the answer to the question you have posed. In virtually all cases, this is a mistake; first, because you never magically reach the point where your “research is completed,” and, second, because you will be far more capable of making sense of the material you uncover in your research if you are trying to fit it into a logical structure early on.

You must produce an outline of your paper before you begin the process of drafting it. The outline should contain a short (i.e., one- or two-sentence) thesis statement, consisting of the question you will be addressing and the proposition that you hope to establish in your paper (i.e., your answer). The remainder of the outline sets forth the overall structure of the argument you will be making in order to persuade the reader of the correctness of this proposition.

The outline is not merely an expansion of the topic that you are addressing. It must set forth the propositions that you hope to establish -- the argument -- to persuade the reader that you have produced a satisfactory answer to the question that you are addressing. Avoid passive constructions and future tense at all costs, the former because they allow (and encourage) you to obscure your own views and ideas, the latter because the outline should set forth a logical argument (not a description of what you hope to discuss in your paper).

My rule of thumb (the “Hit by a Bus” rule): you have a really good outline if, were you hit by a bus and put out of commission, someone else could take your outline and, more-or-less, complete the paper that you were going to write. This does not mean that a good outline is longer, or more detailed, than a bad outline. It does mean that a good outline sets forth the argument you will be making, the propositions you hope to establish in order to persuade a reader that you have successfully answered the question you have posed.

Suppose your topic is “Shrinkwrap licenses,” and your question is “Are shrinkwrap licenses pre-empted by the Copyright Act”? Here is a BAD outline:

* * * * * * * * * * * * * * * * * * * *Topic: Shrinkwrap Licenses

A. This paper will look at the possible conflict between enforcing shrinkwrap licenses for computer software and the Copyright Act’s pre-emption provisions.

B. Background on shrinkwrap licensesC. Pre-emption and the “extra element” test for determining whether state laws

are pre-emptedD. Analysis of ProCD v. Zeidenberg and Vault v. QuaidE. The paper will conclude by putting forth a proposed standard that courts

should utilize in determining whether particular shrinkwrap provisions are permissible under the pre-emption provisions of the Act

* * * * * * * * * * * * * * * * * * * *

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It’s a bad outline because it has no argument. What question are you answering? What are you going to say about the “extra element” test? What will you reveal by comparing ProCD and Vault? What will your proposed standard look like?

A better outline:

Topic: The enforceability of shrinkwrap licenses

Question: Are shrinkwrap licenses pre-empted by the Copyright Act?

Thesis: Shrinkwrap licenses, to the extent they contain terms that are inconsistent with rights granted under the Copyright Act, are pre-empted by Section 301 of the Act.

A. Section 301 of the Copyright Act states that “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright . . . and come within the subject matter of copyright . . . , are governed exclusively by this title.”

B. Any license that purports to govern a user’s right to make ‘fair use’ of copyrighted material (such as a computer program) is governed exclusively by the Copyright Act. Any license restricting those fair use rights is void.

C. This interpretation, however, has been rejected numerous times by courts interpreting these provisions. These courts have focused on the Act’s stated policy of fostering negotiated transactions between copyright holders and users, and have accordingly allowed the parties to license agreements wide scope in modifying and transferring rights granted by the Act.

D. Shrinkwrap licenses are, by definition, not negotiated by the parties. They therefore resemble “contracts of adhesion.”

E. The absence of negotiation over the terms of shrinkwrap licenses eliminates any policy grounds for enforcing these agreements.

F. Therefore, the broad language of Section 301 should control and they should be pre-empted

* * * * * * * * * * * * * * * * * * * *

The point is not that this argument is a good one, or even a “correct” one. The point is that it sets forth the main propositions that the paper will have to establish (by means of logical argument, reference to case law or statutory policy). All that remains afterwards, in effect, is to substantiate each of these points and the paper is finished. Not a small task, to be sure — but at least the outline is a useful road map for your research and writing.

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