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Tuesday, December 06, 2011

How I Write

I've noticed that many aspiring law professors (including fellows) find writing law review or other articles, an essential part of our job, difficult at first. Here is a set of suggestions based on what works for me. I make no claim that these are best practices, exhaustive, or even something that will work for you. Still, I thought it worthwhile to share some reflections, and I invite others to do so in the comments.

NB: I have no children and am unmarried, so I've often wondered whether that is part of what makes writing work for me. I am sure it plays some role, but as I discuss below given that I stick to a pretty strict 9 to 5 schedule Monday to Friday (except once every week and twice every other week where I teach till 7 PM), and rarely work on the weekend, I suspect that this cannot explain most of what works for me.

Here are the tips based on how I write:

  1. Get a big monitor: I love having a monitor big enough to show two full documents and a sizable magnification at the same time. I can have westlaw up in one and the draft article in another, or have a journal’s edits and my original article up simultaneously. Some people prefer two monitors, but either way I think this will increase your efficiency.
  2. Alter your email schedule: If you can change your automatic email receive schedule to 20 or 30 minute intervals rather than every 5 or 10 minutes you will find you are less likely to get distracted. Of course, turning email off altogether is better still but for many of us that is not a great option.
  3. Aim for crappy but complete first drafts, avoid perfection: I have always admired people who write perfect first drafts; I’ve never been one of them. I usually go through 100 drafts of any piece of writing, and actually save a new version on any day I make an alteration that is even mildly significant. I think for many perfection equals paralysis. I can generate a crappy and almost complete first draft much quicker, and I feel liberated knowing the final draft will be SO much better. It also enables me to share the draft earlier in its gestation and even workshop it with friends early…which leads to the next point….
  4. Work on Deadlines: As an appellate lawyer at the Justice Department I basically had hard deadlines almost constantly on briefs. Indeed, the harder the deadline, the faster I would work. In a few emergency stay cases with basically a 24 hour turn around, I found that I could work two to three times as fast and produce a document that was 80% as good in terms of the quality. I think deadlines are very helpful, and you should seek them out as much as possible. Agree to give a workshop in-house or at another school at a date that feels a bit on the early side. I also use the law review cycles as internal deadlines when I should have a “very good” draft, and then work backwards to create deadlines for myself as to when I will give the draft to various people and incorporate changes.
  5. Teach your draft papers: If you are teaching a seminar or even a general class in your area, consider teaching a draft paper. I have found that the students love it, and you get good feedback – especially as to whether the article is pitched at the right level for law review editors.
  6. Work in 45 minute tranches, and 3 hr blocks: I have found I can work intensely for 45 minutes at a time, and I can do a 3 hour block before my brain is exhausted.  So I usually do a morning and/or afternoon session, and if I do both on a given day I schedule a full one-hour lunch in between (on every work day we either have a faculty workshop or a dining room where I can relax with my colleagues). I use the last 15 minutes of each hour for answering emails, or administrative matters or blog reading. I know this amount of time-management seems neurotic or the exact billing practices many people happily left behind when working for a firm, but it works for me.
  7. Pick good times and places to write: My concentration is at my peak first thing in the morning, so I try to do my writing then and schedule my classes for the late afternoons. This also benefits my students because I am an incorrigibly fast talker, and my being “tired” actually makes me a better teacher.  I really like writing in my office at the law school, but for others a coffee shop or home works better. Find your ideal writing space and stick with it.
  8. Have multiple projects of various types/lengths at once: At any given time I have 2 to 5 papers on one of the burners of my intellectual stove. I will be dealing with a journal’s edits on one paper, getting a second ready for sending out to law reviews, writing the first draft of a third, and researching a fourth.  I find this works well for me because when I am sick of or exhausted by one paper, I can switch to one of the others and feel renewed rather than having to switch off writing altogether. One of the reasons why this works for me is that I try at any time to have multiple types of papers going.  Some of this is no doubt field specific, but for me it is great to have one short paper for a medical journal audience, one or two longer law review articles, and maybe an partially empirical project where we are just working on cleaning data.
  9. Split to your heart’s content: Most subjects I find interesting prove to be much more complex then when I start writing about them. I routinely cut down 48,000 word draft papers to 32,000 words – indeed I spend at least 40% of my time on any paper on this phase . . . but sometimes it becomes clear to me early on that what I really want to write will end up being more like 80,000 and have three different big ideas aimed for different audiences.  Almost always when this has happened I have been able to split the original projects into multiple parts. I have done this with my medical tourism work, and one of the nice side benefits is that even after you split you can always potentially re-join the work and still further elaborate on it as a book, as I am trying to do now.
  10. Have RAs work on the piece throughout, during your “off times”:  I have a “stable” (about 9 or 10) of research assistants. Having this many is great because it means there is always at least someone available to work on something. Even when a paper is only mid-way through the drafting process, I will give it to my RAs to edit while I am busy working on another paper with the hope that they can make it better even when my eyes are not on it.
  11.  Treat writing like a job: This is more a philosophy. Many flock to legal academia away from a more rigid job in the legal world, but there is something to be said for rigidity and not waiting for the muse to whisper in your ear. I try to treat legal writing as a job, come in at 9, leave at 5 on most days and work consistently throughout. This helps me be both productive and sane, but perhaps I am an aardvark in this respect.

Posted by Glenn Cohen on December 6, 2011 at 04:18 AM in Life of Law Schools, Teaching Law | Permalink


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I don't know how self-aware any of us are in terms of what does or doesn't work, but I perceive the key to my own writing to be #3: I try to write up an idea quickly and imperfectly, generally without footnotes, and usually over a brief window where it's the only big thing going on. I then try to step back and get a sense of whether the idea worked. On rare occasions, I conclude the idea just didn't pan out, and I drop it. But usually I decide there's a core of an idea in the draft, and I keep rewriting it until it takes shape. (Once in a while, it actually comes out reasonably okay the first time: I once wrote a short article in a few days and placed it in a top journal the next week without having asked anyone to read a draft for comments. But that's rare.)

Ideally, I like to get in the state of mind in which I'm annoyed that no one has expressed the idea before, and I feel compelled to express it myself, even if it's only half-coherent the first time out. That lets me feel I'm writing for myself, which is liberating. Then write and re-write, and feel free to ditch big parts, redo themes, and generally conduct whatever surgery is necessary to help it along.

Posted by: Orin Kerr | Dec 8, 2011 2:02:18 AM

I would say I do a little bit of all of these things, with some caveats.

First, the nice thing about writing is that it begets additional writing. My second paper emerged from my first paper. My fourth paper was an issue I thought about as I was writing my second paper, and so on. One of the benefits of writing that "crappy" first draft is that in subsequent editing sessions, the author can begin to see issues that are related but tangential, and yet substantial enough that they warrant their own treatment in a separate article. So as you become a better editor, you also generate additional ideas and future papers.

Second, I think it is helpful to write with an eye toward when you expect your teaching schedule to be heavier or lighter. During heavy semesters, I have little time to do original research or write entirely new papers. I do, however, have time to do a little editing or polishing here and there, as well as some targeted research (ie, read the occasional paper that I know for sure is relevant to my piece). So if you know Fall is going to be an extremely busy time, push yourself to complete a draft so that you can edit the paper in your spare moments. (As for the roughness of the draft, I find that I cannot help but drop footnotes as I go along, although I don't necessarily fill in pincites during the early drafting of the piece.)

The third piece of advice I have is this: try to remain generally familiar with the literature generated in your field of interest. Even if all you have time to do is read abstracts and introductions to law review articles, just do it and do it routinely. I agree with those who say that you should not put off writing in order to read "everything" that touches upon your subject. But you should also keep reading new and relevant articles that you find or that emerge on services like SSRN. You will be in a much better position when classes are finished and you want to start putting together a new piece. In fact, I have started downloading articles of interest and placing them in folders on my computer. That way, I know what I want to read when I finally get the time.

Posted by: Miriam | Dec 7, 2011 2:56:38 PM

I discussed some of this a couple of years ago:


Posted by: Howard Wasserman | Dec 7, 2011 9:43:59 AM

I used to write for detailed first drafts, including sourcing and footnoting. I have gradually moved away from that to the point where I write my first draft as a free-form essay. Interestingly, the change was brought about by blogging; a post is, in many ways, an earlier, free-form, not-fully-sourced, not-fully-detailed draft. I also am writing much shorter things (10k-15k) and thinking in terms of multiple projects.

Posted by: Howard Wasserman | Dec 7, 2011 9:41:55 AM

Again I'll emphasize how delighted I would be if others (including those with much greater experience than I) also chimed in regarding how they write...

Posted by: I. Glenn Cohen | Dec 6, 2011 3:40:03 PM

Sugar Huddle -- I read a lot of the literature when I am thinking if the idea is good and novel, and often deputize RAs (see my response to Froomkin) to search what's out there and summarize it for me. Then I start writing. During the writing process I probably do just as much research if not more as when I started.

I've seen people get stuck doing too much research on the front end and feel the need to read EVERYTHING. I think that is a mistake, in part because it sometimes dulls one's creativity. Seeing someone else's map of the terrain sometimes causes you to recede from or lose sight of your own map. That said, one should also know enough of the literature to make sure you are adding something new.

Where to draw the line is a judgment call that depends in part on how much time you have till your "deadline"(e.g., a job talk paper) and also how fast you are as a writer, and how much time you need to give people to get comments back to you. The longer I am in this business, the better I know the literature in the areas I write in, and therefore the quicker I can move to writing and identify pieces to research more thoroughly as the piece develops.

Again, one thing I'll say in praise of my big monitor tip, is that I can pull up a lot of research on Westlaw while working on my draft in a way that is more seamless.

Posted by: I. Glenn Cohen | Dec 6, 2011 3:39:14 PM

Very interesting! I'm curious where research fits into this writing schedule-- do you do most of your research while outlining and before beginning the writing process, or are you alternating between research and writing throughout? Any differentiation between researching case law vs law journal articles vs non-legal sources, e.g. start with surveying the law journals for preemption and background, then focus on the cases before/while writing, then go back to legal and non-legal secondary sources as needed/while revising?

Posted by: sugar huddle | Dec 6, 2011 3:30:47 PM

Very helpful! As a side note: the only other person I've ever heard use "aardvark" in that way is Arthur Miller.

Posted by: AndyK | Dec 6, 2011 2:20:55 PM

Hi Michael,
Lest I give the wrong impression we get a fixed budget for RA help...some people hire one or two RAs with pretty regular hours...I hire a larger number but use them much more episodically....
As for what I use them for, primarily:
(1) Editing my work.
(2) Preparing memos on areas of law/topics I am thinking of writing on (e.g., find me what's been written in the last ten years on travel for assisted suicide).
(3) Compiling lists of people to whom I should be sharing my work with when it comes out.

Posted by: I. Glenn Cohen | Dec 6, 2011 2:19:16 PM

Nine or ten research assistants! Nine or ten research assistants! (Not to mention that they may do more than cite checking, and doubtlessly many do it well at Harvard.)

How many schools routinely give professors more than one or two RAs?

Posted by: Michael Froomkin | Dec 6, 2011 1:56:56 PM

Glenn -- thank you, this is enormously helpful.

For an aspiring prawf, to what extent would you recommend tailoring what you write to your research interests? For example, assume the following options:

(a) An article on a subject with which you have experience from practice, and but that is somewhat more practice-oriented and while related to your research interests, would be difficult to portray as central to them, or

(b) An article on a subject with which you have no direct experience, are behind the curve in terms of reading up on it (meanwhile, the clock is ticking on writing as you near the five-years-in-practice mark and you need to juggle practice obligations), but that is directly related to your research interests.

The problems in (b) could be mitigated by spending lots and lots of time reading up on the issue, but as you know time is scarce and as you allude to in your third piece of advice, one should fcous on getting something down on a page (and indeed feels pressure to do so).



Posted by: Aspiring Prawf | Dec 6, 2011 1:13:27 PM

thank you, Glenn. Very helpful!

Posted by: Jamie Persyn | Dec 6, 2011 11:51:13 AM

Just a quick note of thanks for this post. Some great points in here that will really improve my process. Cheers!

Posted by: 5thyrlawprof | Dec 6, 2011 11:21:04 AM

For me, the hardest part has been coming up with good ideas (ideas that I think are fun and interesting to write about and that will add something useful and novel to the literature). Writing a paper based on a really good idea is much easier than writing a paper based on a so-so idea.
One way I have dealt with this is that every time I think of a potential article idea (and you would be surprised how often this occurs just as I am getting into bed or as I am eating breakfast), I email myself the idea and then store the emails in a folder.
When it comes time to write a new article, I usually have at least a dozen article ideas in my folder. Then I spend some time trying to figure out which ones are truly novel (requires a bit of research) and which ones are really good (usually at least one or two are clearly better than the others). Then I start work.
If you have a really exciting idea to begin with, it makes everything else much easier.

P.S. I like your idea about teaching your draft papers. I haven't tried that before, but it sounds like it could be interesting for the students and helpful for me.

Posted by: Stuart Ford | Dec 6, 2011 11:07:20 AM

New VAP -- I usually have a skeleton of the argument worked out before I write. So I find just getting the headings and sub-headings down (let's say down to the Part II.A.i level), or even mapping it "powerpoint style" helpful. I then to start writing whichever part I feel most excited about, and fill in the rest of the paper like a jigsaw puzzle as I go towards finishing the first crappy draft. By the time I am on draft 100 (that is usually how many I go through before publication, saving it as a new draft each day I work on it so I can feel safe if I want to revert) I have moved things around substantially, dropped arguments, added new ones, and even very occasionally changed my mind on my conclusions for a portion of the argument.
Hope that helps. Again, I hope others will chime in...

Posted by: I. Glenn Cohen | Dec 6, 2011 10:52:30 AM

I would only echo Glenn's suggestions and emphasize point 3. Several years ago, Eugene Volkohl wrote an article directed toward law journal staff on how to write their journal comments. One of my mentors pointed out that the article is equally applicable to professors as well. My biggest takeaway from the article was to write the first draft quickly and to save most of the nuance, shaping, and framing for the editing process.

New professors without a lot of journal writing experience could easily think that it is ineffecient to regularly write hastily drafted paragraphs ands pages only to delete or rewrite them entirely a month or two later. From my experience, I find the opposite is true because, as Glenn writes, the likely alternative to writing quick first draft is paralysis or staring at a computer screen for hours on end without producing much.

I would also add that it is not uncommon for law schools to hire entry level candidates who show tremendous scholarly promise, but a few years later the tenured faculty members are sitting around scratching their heads as to why the new professor has yet to produce an article (notwithstanding heavy prodding and offers of assistance). Surely the answer for some is that they have confronted familial, medical or other personal challenges. For the rest, I can't help but believe it is because they are paralyzed by their writing process rather than a lack of ideas. They have the capacity; they just need to follow some simple rules of the road like number 3.

Posted by: Derek Black | Dec 6, 2011 10:50:06 AM

Thanks for this post. This was just what I needed to see this morning. I'm a new VAP, and feel like I've had a lot of false starts and have been spinning my wheels a lot trying to get an article written. It's encouraging just to hear that other newbies have difficulty writing as well. I think the tip I need to follow most is just to get a first draft done without worrying too much about quality. My question for you (or others) is this: before you even get a first draft down, do you have a pretty good sense of where you're going or what you're going to write? Or do you just start writing, and the writing and re-drafting process is what helps refine your ideas?

Posted by: New VAP | Dec 6, 2011 9:03:28 AM

I am just bringing out a book (a study guide for the MPT, if anyone cares), working on three other big projects, and thinking maybe there's a more relaxed way. You've persuaded me to intensify what I do, rather than relaxing it. I especially love what you say about the value of deadlines. So true.

Posted by: Mary Campbell Gallagher, J.D., Ph.D. | Dec 6, 2011 8:34:40 AM

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