Producing legal scholarship is mandatory to getting and keeping a job, both as a nonclinical and clinical legal academic. For more detailed advice on academic legal writing and tips on other aspects of the legal scholarship enterprise, read Academic Legal Writing by Eugene Volokh.
Be prepared to describe your methodology, your field or fields, and your scholarly agenda by the time you are ready to seek a position in academia. You may know your methodology, field, and scholarly agenda before you start writing your first article, but more likely it will emerge organically from what you write.
Types of scholarship
A few generations ago, the vast majority of legal scholars produced what would today be called “doctrinal” scholarship: works that explain, analyze, and criticize judicial decisions, often proposing to substitute one doctrinal test (e.g. cheapest cost avoider bears the loss) for another (e.g., no recovery absent breach of a duty of care). Many legal scholars continue to produce excellent doctrinal scholarship, especially in areas in which common law methods of judicial decision making are dominant (such as constitutional law).
However, the definition of legal scholarship encompasses much more than doctrinal analysis. Much fine legal scholarship analyzes law by bringing to bear the insights of other disciplines, including economics and other social sciences, history, literary theory, philosophy, and more. Some of this scholarship is purely descriptive; some is prescriptive; often scholars make both descriptive and prescriptive claims.
How should you go about selecting a methodology?
If you have special training in a field that is relevant to a topic about which you want to write, you may decide to exploit that training. For example, if you have an economics Ph.D. or master’s degree, or even if you just majored in economics in college, you could write about bankruptcy, tax, or torts from an economic perspective. Or, if you previously studied philosophy, you might bring that to bear on a paper on professional responsibility. But beware of dilettantism. If you only have a B.A. in history, your efforts to do legal history may come across to serious historians—including serious historians on law faculty hiring committees—as amateurish. Likewise, if you have never had any training in empirical methods, you may end up spending months or years carrying out a study that was flawed from the beginning.
Accordingly, most new scholars coming out of law school, a clerkship, and/or other practice tend to write doctrinal scholarship, because that is what they are most qualified to do.
The best topics will come to you organically.
Perhaps you took a seminar that piqued your interest in a problem, or perhaps you worked on an interesting case that concerned an unsettled question of law. Often, the best ideas arise out of confusion: You don’t understand how some doctrine (if you are a doctrinalist) operates, and the more you read, the more convinced you become that no one really understands it or it’s flawed in some other regard. Then you hit upon a way to explain or improve the doctrine.
Keep a list of potential article ideas.
Many of these will not pan out, but some will. You may have to start research and writing an article idea to determine whether it’s right for you. This is not wasted time, even if you end up not writing about any particular topic, as the research and writing process will help you find what you want to write about.
Make a contribution to the scholarly literature by saying something that’s original, interesting, and at least arguably correct.
There is no single answer to what makes a good law review article, but it helps to have an original idea that you can describe in persuasive prose. Some of the best articles argue for counterintuitive conclusions because ideas that are counterintuitive are more likely to be original than ideas that conform to most people’s intuitions. (Of course, many counterintuitive ideas are simply wrong—e.g., “Repeatedly poking yourself in the eye with a sharp stick improves your vision.”) Absolute claims tend to be indefensible (e.g., “Because the process by which the Reconstruction Amendments did not comply with Article V of the Constitution, courts should treat them as illegal.”). You will often be able to make a watered-down but nonetheless interesting version of such a claim (e.g., “Conventional accounts of constitutional change do not adequately explain how amendments that were adopted extra-legally can come to have the force of law. This article offers a new explanation.”).
Find a topic at roughly the right level of generality.
As an unknown author (for now!) you should avoid the “hot topics” that more senior scholars will be writing about. These included the O.J. trial, Bush v. Gore, and the Hamdan case when these events were news. However, you should also try to avoid writing about very obscure issues of interest only to specialist practitioners in a subfield (such as the ambiguity in a new regulation governing some particular kind of tax shelter). At the same time, a new academic with a new “theory of everything” will not be taken seriously. Your challenge is to find an interesting and timely topic with respect to which you can say something novel and persuasive.
Do your research.
If you’re still not sure what counts as a good topic (and even if you think you are), take a look at the last couple of years of the top law reviews, paying attention both to articles in your field and outside of it. This will give you a good sense of what kinds of topics are current. Remember, though, that a topic that may be appropriate for a senior scholar in your field (e.g. “Globalization’s Impact on Domestic Law”) may be too broad for you as a new scholar. Conversely, remember that student notes tend to be narrower than most good law review articles.
A note about length.
The norm is no more than 40 to 70 law review pages, although individual journals have their own, more precise guidelines. For example, the Harvard Law Review gives preference to articles under 25,000 words, while the Columbia Law Review is a bit more generous to the verbose, preferring articles under 37,000 words. Although some journals do not adhere to these guidelines, many do. Unless you have a very good reason, you should aim for the 25,000-word limit.