Writing While Practicing

Many thanks to Dan for inviting me back for another stint as a non-prof Guest Prawf. I thought I’d address my first post to those readers who, like me, are neither professors nor students but rather full-time lawyers who are also part-time scholars. I’ve been writing a new paper while practicing and thought I’d reflect a bit on that difficult but rewarding experience. I’ll first touch on choosing a format and then on the writing process itself.

Following up on Matt’s recent post, I too was advised some time ago that while practicing it is often easier to write a responsive piece—a book review, reply, or review essay—than an article. Responsive pieces are typically shorter than articles and require less research. Many relevant sources will be cited by the writings discussed, making it easy to place them in their scholarly context. Such shortcuts are very helpful to those without easy access to free LEXIS or Westlaw, to closed-access internet sources such as JSTOR, or to academic law libraries. While articles allow one to stake out a position supported by sustained argument, reviews allow one to make a variety of observations and criticisms that together recommend an alternative approach to the underlying subject matter. I think that non-review essays that are largely conceptual in nature may provide the best of both worlds: shorter pieces that require less research than articles but that nonetheless allow authors to pursue a single line of reasoning from beginning to end.

While my working paper does not fit neatly into any of the categories listed above, my experience suggests the description is basically sound. I had planned to spend much of my time outside of work writing an essay about capital punishment based in part on one of my old posts to this blog. An invitation to an upcoming symposium on criminal law and terrorism forced me to scrap that plan and scramble for a new topic. I decided to use the recent work of several leading scholars to illustrate a theme I perceived in the rhetoric of extremists on both sides of the War on Terror, namely the inversion of traditional moral and legal principles regulating torture and the killing of noncombatants. The resulting piece is of intermediate length and required about as much research as work would have otherwise allowed. However, the benefits were considerable as well. Close engagement with a number of important thinkers proved intrinsically rewarding and the piece gave me the opportunity to draw together a number of important issues that no single article or essay would have encompassed: the relationship between theories of moral and legal justification and theories of individual and collective responsibility; the source and nature of moral and legal constraints on killing and torture as well as the conditions for their permissible violation; and the conceptual structure of the humanitarian law doctrines of double effect, noncombatant immunity, and combatant immunity.

I cannot overemphasize the benefit I received from working with a detailed outline, albeit one that was modified several times. Like most people, I need at least an hour to get into a good writing rhythm, but during the work week I am lucky to have any time or energy at the end of the day. Once I knew the role of each section I was able to jot down notes as they occurred to me, arrange them into logical order, and then turn them into paragraphs when I had the time. Importantly, if I was blocked or bored with one section I could immediately turn to another. Avoiding boredom, by the way, is essential. Writing while practicing requires spending large amounts of one’s little free time writing or researching a single set of issues and no matter how interesting or important those issues the mind needs to shift focus on a regular basis.

One downside of the approach I took was that the paper was ‘almost done’ long before a majority of sections was complete, which can be unsettling when writing under a deadline. Another downside is that highly structured writing of this kind can lack fluidity, so I have spent considerable time toward the end of the process working on smoother transitions. But without the outline the whole enterprise would have been impossible.