LEGAL RESEARCH PROJECTS

1
DAVID G. POST
2
Revised: August, 2014
This document is designed to be read in conjunction with my Writing Guidelines (see
http://tinyurl.com/pfp!a"#$ and co!ers a series of "uestions you need to consider as you begin
wor% on a legal research project (such as a law journal note$ a guided research project$ or a
seminar paper#. &oo% through my Writing Guidelines from time to time (li%e$ for instance$ now#'
( hang people out my window by their thumbs if they fail to pay attention to what)s in there. *ust
%idding+ , but ( ha!e wor%ed hard on that document$ and ( ta%e e!erything in it seriously$ and (
e-pect you to do so as well.
There are any number of guides to legal writing generally' .ryan Garner/s boo% on legal
writing$ The Elements of Legal Style$ is an outstanding guide. 0ore specifically$ there are a
number of !ery helpful guides to writing research papers:
1ugene 2olo%h$ Writing a 3tudent 4rticle$ 56 *ournal of &egal 1ducation 758 (9::6# (also
a!ailable on the World Wide Web at http://www.law.ucla.edu/faculty/!olo%h/writing.htm#$ and his
boo%$ 4cademic &egal Writing.
1li;abeth <ajans = 0ary <al%$ >omments Worth 0a%ing: 3uper!ising 3cholarly Writing in
&aw 3chool$ 5 *ournal of &egal 1ducation ?57 (9::#
@amela 3amuelson$ Good &egal Writing: Af Arwell and Window @anes$ 5 Bni!ersity of
@ittsburgh &aw Ce!iew 95: (<all 9:65# (a!ailable at
http://www.sims.ber%eley.edu/Dpam/papers/goodwriting.html
There are lots of good ideas in each of these articles to help you thin% about and organi;e
your project.
GETTING STARTED
THE FIRST STEP IS TO DEVELOP A GOOD RESEARCH QUESTION BEFORE YOU BEGIN
THE REAL WORK ON YOUR PROJECT.
Ee!eloping the Fright/ "uestion(s# for your paper is not easy$ and may ta%e a considerable
amount of time. (t 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 wor%ing on the project.
( ha!e included some ideas below (and in my Writing Guidelines# on (a# what constitutes
a good research "uestion$ and (b# how you de!elop one. Gou cannot wait until the semester
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These Writing Guidelines are distributed under a >reati!e >ommons 4ttribution &icense (!er 7.H$ a!ailable at
http://creati!ecommons.org/licenses/by/7.H/. @lease copy$ redistribute$ and reuse.
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>omments always welcome: da!id.g.postIgmail.com.
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begins to formulate your "uestion$ because it can ta%e wee%s of wor% to get it in shape$ and then
you will ha!e wasted too much time to e-pect to be able to complete the tas% in the time allotted.
Ance you ha!e a good "uestion (or set of "uestions#$ your tas% is straightforward: answer
it/them. That does not mean what you thin% it means. (t does not mean that your tas% is to find
the correct answer. If you have formulated a good question, there is no correct! answer"
that#s what ma$es it a good question$ that there are good arguments to be made on both sides.
Gour tas%$ then$ is to choose one side J your thesis J and then to prepare the best argument you
can that your answer to the "uestion is the best one a!ailable.
Gou will be getting a lot of assignments li%e this in the course of your legal career' thin%
of this as practice for those. Thin% of me as a partner or senior associate in a law office who has
gi!en you an assignment: ( need to %now the answer to this question (or set of "uestions J the
one(s# that you ha!e formulated#' please pro!ide it to me. There are some things which ma%e
this one easier and perhaps more pleasant' ( ha!e a lot more time a!ailable to help you than most
partners or senior associates do$ and it is$ in fact$ my job to do so.
Whats a !oo" #$s$a#%h &'$st(o)* A)" ho+ "o ,o' -()" o)$*
Gou cannot write persuasi!ely until you %now what you are trying to persuade your
readers about$ and you can/t ha!e a well,constructed argument until you %now what "uestion(s#
you are addressing.
9. %hoosing the &uestion
Gou ha!e to begin by choosing some topic to write about$ some general area of the law on
which you will focus your attention J e.g.$ loo%,and,feel copyright protection for software user
interfaces$ or patent protection for !ideo game programming techni"ues$ or application of
common law pri!acy torts to social media disclosures$ or current proposals for networ%
neutrality$ or international copyright$ . . . etc.
That/s the (relati!ely# easy part' it should not be too difficult for you to find some general
area of the law that you thin% might be particularly interesting and that you would li%e to spend
more time thin%ing about. The difficult part is finding the legal "uestion(s# within that general
area on which to focus.
To begin with$ plan on spending se!eral wee%s reading whate!er you can get your hands
on about the general area. Ane good way to find rele!ant material is to enter your topic as a
search "uery in &e-is or Westlaw$ using their natural language searching functions. 3ee what
pops up$ both in the case database(s# and in the law re!iew databases. Eo the same thing at
Google or any of the other WWW search engines$ and spend some time e-ploring whate!er pops
up that loo%s interesting.
4nother e-cellent source for refining your topic into a research "uestion are the !arious
.K4 publications (B3 &aw Wee%$ >opyright &aw Ceporter$ (nternet = 1lectronic >ommerce
&aw Ceporter$ etc.# that summari;e important current legal cases. What are the legal issues that
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people are fighting aboutL (f 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 J both of
which are characteristics of a good research "uestion.
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
shrin%wrap licenses is an interesting topic, but it is not a question that your paper can answer J
indeed$ it is not e!en a "uestion at all. Gour job during the first few wee%s after you ha!e chosen
your topic is to find the "uestion within your topic area that
(a# is li%ely to be interesting enough to support a fairly e-tensi!e 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 ade"uately answered in the space that you will be
de!oting 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 li%e to
construct an argument about an issue of law#.
<or e-ample$ if you ha!e chosen any of the following topics$ here are e-amples of some
good "uestions' these are just e-amples off the top of my head$ and are not meant to constrain
you in any way$ but only to gi!e you an idea of what ( mean by a good research "uestion around
which you can structure your paper:
Topic) 3hrin%wrap licenses
&uestions)
9. 4re shrin%wrap licenses pre,empted by the >opyright 4ctL
7. 4re shrin%wrap licenses enforceable under the pro!isions of the proposed Bniform
>ommercial (nformation Transactions 4ct (B>(T4#L
Topic) @atentability of computer software
&uestions)
9. 4re the *T+ ,uidelines on software patentability consistent with the 3upreme >ourt
and <ederal >ircuit precedentsL
7. Eoes the <reeman,Walter,4bele test for patentability ha!e any continuing !italityL
Topic) >omputers and pri!acy
&uestions)
9. (s employer monitoring of employee e,mail communications a !iolation of the
1lectronic >ommunications @ri!acy 4ctL
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7. (n what circumstances is the use or disclosure of consumer information deri!ed from
(nternet usage prohibitedL
4nd so on. These are$ of course$ just e-amples.
Two practical suggestions: -(#st. "$-()$ ,o'# &'$st(o) /$#, )a##o+l,. (t is !ery li%ely
that$ as you do your research$ you will find that the "uestion you ha!e as%ed is more complicated
than you originally thought' if you begin with a !ery broad "uestion$ your paper will "uic%ly
become completely unmanageable. When thin%ing about formulating a good "uestion$ as%
yourself: will ( really be able to formulate an answer$ supported by a persuasi!e argument$ to this
"uestion in the amount of space and time ( ha!e to wor% withL Gou can/t sol!e all the world/s
problems in a single research paper$ and you shouldn/t try' it is much better to ha!e a well,
formulated paper answering a narrow "uestion than an incomplete and messy argument focusing
on a !ery broad "uestion.
3econd$ %eep in mind the distinction between is "uestions and ought "uestions. 4n
is "uestion as%s what is the law go!erning ML 4n ought "uestion is what should the law
go!erning M beL 0y ad!ice: A/o(" 0o'!ht &'$st(o)s. The tas% of persuading the reader that
the @atent 4ct should co!er business methods$ or that >ongress 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 e"ui!alent is "uestions$ it is a tas% for which you
lac%$ in most cases$ the proper tools. The tools that are specific to the law$ the ones that you are
learning in law school J fundamentally$ how to read cases and statutes J are almost always
inade"uate for ought "uestions.
?. -ormulating the .rgument 'The +utline(
Ance you %now the "uestion that you will be focusing on$ the paper$ fundamentally$
consists of nothing more (+# than your answer to the "uestion you ha!e posed$ along with a
logical argument designed to persuade your reader that your answer is$ in fact$ the best a!ailable
one. /o not thin$ of this as finding the correct answer! to the question" thin$ of it as
formulating the best argument you can in support of one side or the other. Generally spea%ing$ it
does not matter which side you ta%e' a good research "uestion$ by definition$ is one on which
there is substantial disagreement about which answer is correct$ and supporting arguments for
both sides.
This is an iterati!e and dynamic process. 4fter you ha!e selected a "uestion$ you may do
research on that "uestion and disco!er that there is a different$ related "uestion that is in fact
more interesting. Ar$ as you are constructing your argument in support of one side you may
reali;e that your initial answer is in fact completely wrong$ and that the e!idence strongly
supports the opposite conclusion. This is not only una!oidable$ it is part of what ma%es this
process interesting and e-citing J and you must be fle-ible enough to be open to modifications of
all of these components as your research proceeds.
.ut being fle-ible 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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wor% producing the argument that supports that answer. This is a bit counter,intuiti!e' your
instinct is li%ely to be that you want to wait until all your research is completed before settling
on the answer to the "uestion you ha!e posed. In virtually all cases, this is a mista$e" first$
because you ne!er magically reach the point where your research is completed$ and$ second$
because you will be far more capable of ma%ing sense of the material you unco!er in your
research if you are trying to fit it into a logical structure early on.
0ou 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
"uestion 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 o!erall structure of the argument you
will be ma%ing in order to persuade the reader of the correctness of this proposition.
The outline is not merely an e-pansion of the topic that you are addressing. (t must set
forth the propositions that you hope to establish ,, the argument ,, to persuade the reader that you
ha!e produced a satisfactory answer to the "uestion that you are addressing. 4!oid passi!e
constructions and future tense at all costs$ the former because they allow (and encourage# you to
obscure your own !iews 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#.
1y rule of thumb 'the 2it by a 3us! rule() you ha!e a really good outline if$ were you
hit by a bus and put out of commission$ someone else could ta%e your outline and$ more,or,less$
complete the paper that you were going to write. This does )ot mean that a good outline is
longer$ or more detailed$ than a bad outline. (t does mean that a good outline sets forth the
argument you will be ma%ing$ the propositions you hope to establish in order to persuade a
reader that you ha!e successfully answered the "uestion you ha!e posed.
3uppose your topic is 3hrin%wrap licenses$ and your "uestion is 4re shrin%wrap
licenses pre,empted by the >opyright 4ctL H$#$ (s a BAD o'tl()$1
N N N N N N N N N N N N N N N N N N N N
Topic: 3hrin%wrap &icenses
4. This paper will loo% at the possible conflict between enforcing shrin%wrap
licenses for computer software and the >opyright 4ct/s pre,emption pro!isions.
.. .ac%ground on shrin%wrap licenses
>. @re,emption and the e-tra element test for determining whether state laws
are pre,empted
E. 4nalysis of *ro%/ v. 4eidenberg and 5ault v. &uaid
1. The paper will conclude by putting forth a proposed standard that courts
should utili;e in determining whether particular shrin%wrap pro!isions are permissible
under the pre,emption pro!isions of the 4ct
N N N N N N N N N N N N N N N N N N N N
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(t/s a bad outline because it has no argument. What "uestion are you answeringL What
are you going to say about the e-tra element testL What will you re!eal by comparing @ro>E
and 2aultL What will your proposed standard loo% li%eL
4 better outline:
Topic: The enforceability of shrin%wrap licenses
Ouestion: 4re shrin%wrap licenses pre,empted by the >opyright 4ctL
Thesis: 3hrin%wrap licenses$ to the e-tent they contain terms that are inconsistent
with rights granted under the >opyright 4ct$ are pre,empted by 3ection ?P9 of the 4ct.
4. 3ection ?P9 of the >opyright 4ct states that all legal or e"uitable rights that
are e"ui!alent to any of the e-clusi!e rights within the general scope of
copyright . . . and come within the subject matter of copyright . . . $ are
go!erned e-clusi!ely by this title.
.. 4ny license that purports to go!ern a user/s right to ma%e Ffair use/ of
copyrighted material (such as a computer program# is go!erned e-clusi!ely by
the >opyright 4ct. 4ny license restricting those fair use rights is !oid.
>. This interpretation$ howe!er$ has been rejected numerous times by courts
interpreting these pro!isions. These courts ha!e focused on the 4ct/s stated
policy of fostering negotiated transactions between copyright holders and
users$ and ha!e accordingly allowed the parties to license agreements wide
scope in modifying and transferring rights granted by the 4ct.
E. 3hrin%wrap licenses are$ by definition$ not negotiated by the parties. They
therefore resemble contracts of adhesion.
1. The absence of negotiation o!er the terms of shrin%wrap licenses eliminates
any policy grounds for enforcing these agreements.
<. Therefore$ the broad language of 3ection ?P9 should control and they should
be pre,empted
N N N N N N N N N N N N N N N N N N N N
The point is not that this argument is a good one$ or e!en a correct one. The point is
that it sets forth the main propositions that the paper will ha!e to establish (by means of logical
argument$ reference to case law or statutory policy#. 4ll that remains afterwards$ in effect$ is to
substantiate each of these points and the paper is finished. Kot a small tas%$ to be sure Q but at
least the outline is a useful road map for your research and writing.
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