General issues with first drafts

These are materials I typically hand out after reviewing first drafts. I am posting them here now so that you can write with my first-draft concerns in mind. After getting comments on your first drafts, re-read this document.


Criteria.  First drafts were reviewed with four sets of criteria: Writing (33%), Organization & Analysis (33%), Research & Attribution (28%), and Bluebooking (6%). The final draft will be scored as Writing (25%), Organization & Analysis (25%), Research & Attribution (25%), and Bluebooking (25%).

Grading.  Grading was done with a scale going up to A+ (4.5).  For example, if you received a 3.0, your grade was a B, a 3.75 was an A-, and so on.  Thus, your papers were given scores that may be in between intermediate grades used by the registrar.  Also, the first drafts were graded as first drafts and probably with an overly generous hand.  Be aware that the final drafts will be graded as final drafts, with the higher scrutiny and expectations that befit a final draft.  Thus, do not assume that you’ll get the same grade by handing in a final draft with minimal revisions.  Note: if you gave me a revised draft prior to me completing scoring of your first draft, I scored based on your first draft (the one you handed in 10/24), but provided comments based on your most recent draft, so that you get comments based on your work-in-progress.

Handwritten comments.  I have made extensive handwritten comments on your drafts.  Also, please keep in mind that despite the number of comments, many of the comments are merely representative: for example, I’ll point out examples of where additional footnotes are needed or where a particular Bluebooking problem needs to be fixed.  If I were to instruct you on every correction that might be made, then I would be acting as a co-author rather than as a mentor.  It is the author’s responsibility to make sure that corrections are made throughout.

General comments below.  Below are general comments on each of the afore-mentioned categories.  For your final papers, you should make good use of the Bluebook.  Another resource is any good style book, such as the Chicago Manual of Style.  You should proofread your paper many, many times.


Proper grammar.  The importance of good grammar cannot be overstated.  Bad grammar is a red flag of a paper that was drafted with little attention or care.  Bad grammar should not exist in a first draft, and is inexcusable in a final draft.  Examples of bad grammar are too extensive to list.  Common problems include improperly mixing tenses, such as jumping back and forth between the present and past tenses when discussing a case, or improperly using singular verbs (e.g., “is”) in connection with plural subjects (e.g., “they”).  Another common problem is using “they” and “their” when referring to singular entities, such as a person or corporation.

Correct spelling.   There is no excuse for misspelling (or for correctly spelling of the wrong word) in any draft.  Proofread carefully and multiple times.  Do not trust spell checkers.  Again, do not trust spell checkers.

Proper punctuation.   A first draft is not a rough draft, and should have proper punctuation.  Common errors include: 1) in the main text, putting footnote numbers to the left of punctuation marks (they should be to the right, with no spaces in between); and 2) in footnotes, omitting periods at the ends of the footnotes.  Also, first drafts often improperly include double quotation marks inside other double quotation marks, or improperly use unmatched quotation marks.

Proper formatting.  You should have a 1” margin on top, bottom, and sides.  All block quotes should be further indented on both sides.  Block quotes should be single-spaced (a quote of more than 49 words should be in a block).  Regarding spacing at the end of sentences, I prefer two spaces at the end of a sentence because it’s cleaner; regardless, you may use either one or two spaces.  But be consistent in your choice.  Similarly, some authors use no line spacing between footnotes, and others use line spacing.  Either is ok.  But be consistent in your choice.

Good sentence structure.  Good sentences are easy to read.  Avoid run-ons and wordiness.  Improve sentences by deleting as many words as possible.  Improve sentences by omitting unneeded adjectives and intensifiers.  Use active rather than passive voice when possible.  Fragments can be used on occasion, but rarely and only for effect.  Right?  Right!

Good paragraph structure.   Paragraphs should be internally cohesive and should generally have topic sentences that flag the purpose of the paragraph (the topic sentence need not be the first sentence).  Transitional terms (such as “thus,” “however,” “regardless,” etc.) help to guide the reader within the paragraph.

Readability.  Did the paper flow, or did the reader have to keep stopping to figure out what was going on?  Your audience is an educated person with a J.D. or students in their second or third year of law school.  (Thus, think of a “reasonable reader,” one possessing knowledge different from what your Cyberlaw classmates or I may have.)  Even though you may assume your reader possesses basic legal knowledge, you should never assume that the reader has specialized legal, factual, or technological expertise regarding your topic.

Good tone.  Passion in writing is wonderful, but authors should avoid a pedantic or hyperbolic tone.  It is good—and indeed, expected—for you to have a point-of-view, and it is great when an author has passion for her or his thesis.  However, academic writing avoids hyperbole, and instead allows the argument to speak for itself.

Acronyms.  Avoid overusing acronyms.  A sentence that has more than one or two acronyms—no matter how often used in other places in the paper—might confuse the reader.


First, it is important to be organized.

Introduction.  Your paper must—and I mean must—start with a strong introduction that includes 1) your topic; 2) why it is important; 3) your thesis; and 4) a roadmap.  The roadmap should state, Part by Part, what each section of the paper will address and what it concludes.  The introduction with roadmap is your “contract” with your reader.  You are an academic author and not a novelist, and your reader should never be surprised!

Part numbers.  Use Part and Subpart numbers (e.g., Part II, Part II.A, etc.).  Use those labels in your roadmap (e.g., “Part III addresses . . . .”).  Using Parts and Subparts enhances your roadmap and makes it easier to follow the structure of your paper.

Conclusion.  The conclusion of the paper should not raise new analyses or arguments.  Instead, it is a place to briefly summarize your conclusions and to note any interesting implications of your paper for future writers to consider.

Logic/cohesion (and no surprises!).  Other “organization” considerations include whether the paper is organized in a logical and cohesive manner.  For example, each Part of the paper should start with a topic paragraph (like a mini-roadmap) that lays out what will be discussed in that Part and key Subparts.  Again, no surprises.  You are writing an academic paper, not a novella!

Second, it is important to have good analysis.

Topic.  What is the “problem” or “question” that your paper focuses on?  Is it clearly described in the introduction?  Does the paper make clear the importance and timeliness of your topic?  (This is the “why should we care” question.)  Does the paper focus on the topic or does it instead jump around, taking frequent detours to address tangential topics that are beyond the focus of the paper?  Perhaps tangential issues need to be relegated to footnotes, or omitted entirely.

Thesis.  What is your “solution” to the problem?  Put differently, what do you prescribe?  Should case law be overruled?  Why, and what should courts do instead?  Should a new statute be written?  Why, and what might it do?  Should new technologies be developed?  Why, and what should they be?  Should social action be taken?  Why, and what should it be?

Background.  You must provide sufficient legal, factual, and technological background so that the reader will understand your topic, thesis, and arguments.  Your audience probably won’t know the law, facts, and technology as well as you.  Don’t expect it to.

Arguments.  Do you make well-paced arguments that develop logically, or do you jump around?  Do you lay out your arguments piece by piece, or do you simply assume (or omit) some of the steps of the argument?  Do you address relevant counterarguments and countervailing social norms, or ignore them?  If you’re not aware of relevant opposing views, you may not be thinking or researching deeply enough.  Are you honest about the shortcomings and weaknesses of your arguments?  Accept reality: anything important enough to write about will not have an easy or perfect solution.

Descriptive component.  Above and beyond mere background, you must describe and analyze the relevant legal and factual matters.  Do you discuss the relevant statutes and cases with sufficient depth, or is your discussion of the law so cursory that it leaves the reader scratching his or her head?  Do you engage in thoughtful interpretation of the law, or do you regurgitate the analyses of other commentators with no additions of your own?  Do you sufficiently outline the relevant technology, or do you throw a bunch of scatter-shot jargon at the reader in one sentence with so little explanation that the reader becomes lost and frustrated?

Countervailing social values.  Do you identify and justify the social values that underlie your thesis?  For many topics, it is possible to take a variety of approaches, and the author’s choice of social values—whether identified explicitly or not—often fuel the author’s position.  For example, for file sharing, some authors might emphasize the social value of incentivizing artists, whereas other authors might emphasize the social value of encouraging new technologies.  The social values you choose may heavily influence the thesis you adopt (e.g., whether file sharing should or should not be permitted).  For your paper, identify the social values you find to be important, identify any competing (or “countervailing”) social values, argue why your chosen values are more important than the others, and explicitly explain how your chosen social values underlie your thesis (your “solution” to the problem).

Avoidance of “non-argumentation.”  Avoid being conclusory: don’t state a conclusion as an argument.  Avoid words like “clearly” and “obviously”—anything important enough to write about is neither clear nor obvious.  Consider striking any adverbs, intensifiers, or “squish”-ifiers (words like “generally,” “many,” “completely,” “some,” or “very”).  If you can’t strike them without making the sentence untrue or misleading, that may be a sign that the sentence or argument needs further development.  Avoid rhetorical questions—a rhetorical question is not an argument.  And never say “it can be argued” or the like, without making and addressing the argument.


Not Bluebooking.  This category looks to the extent and quality of your research, along with the provision of proper provision of attribution and authority.  This is a consideration quite separate from whether your footnotes comply with the Bluebook.

Extent of research.  Have you looked to all relevant case law, statutes, secondary authority (law reviews, etc.)?  If each part of your paper relies on only one or a few sources, you probably haven’t done enough research.

Proper authority.  If you’re discussing a case or statute, then read and cite to the case or statute.  It is not appropriate to cite only to a secondary authority (such as a law review article) that discusses the case.  If you only cite to an article discussing the case or statute, I will assume that you never even read the case or statute.  Read and cite to both!

Need for more footnotes.   As stated in Fajans, pretty much any statement of law or fact needs a footnote.  Even students with over 100 footnotes likely don’t yet have enough footnotes.  In your papers, I noted examples of places that needed more footnotes.  It is your responsibility to make sure that all assertions of law or fact are footnoted with proper authority, regardless of whether I specifically noted that for every such assertion in your paper.

Wikipedia, ALRs, legal encyclopedias.   Such materials, especially Wikipedia, are not very authoritative.  You may cite to them as additional authority, but may never rely upon them solely for any assertion of law or any material assertion of fact.  Again, if you want to cite to an ALR or legal encyclopedia for an assertion of law or material assertion of fact, it should be an additional source, and never the only one.


General comments.  For many, the Bluebooking was spotty.  In my written comments in your papers, I made representative comments to your Bluebooking.  However, I did not—and cannot—provide every possible comment or correction to every footnote.  That would be impossible, and you alone bear the ultimate responsibility for your Bluebooking.  It is no excuse that the Bluebook is complex or that you don’t know it.  The only way to learn the Bluebook is to refer to it constantly (which you must do when writing an academic article), and to use it when crafting and editing your paper.  Below are examples of Bluebooking problems I noticed with the papers.  You should not consider the listing of issues or Bluebook (“BB”) sections below to be exhaustive.  Also, recall that I provided our class with a number of handouts on the Bluebook.  Make sure to use them as resources.

BB table of contents, index, blue lined pages.  Before your next edit your paper, sit down and review the Bluebook’s table of contents, index, and blue-lined pages.  You’ll see that the Bluebook is well-organized, and it is easy to find the answer to a question (such as short citations, use of “supra,” use of “id.,” etc.) just by looking in the table of contents or index.  Similarly, the blue-lined pages have invaluable information on common abbreviations, and citation formats for various courts, statutes, and legal journals.

Lack of pinpoints.  Whenever citing any authority for any proposition of fact or law, you must have a pinpoint citation if one exists.  Failing to provide pinpoints is highly improper and suggests that you haven’t read the cited material.  See BB 3.

Case citation format.  You can’t use “supra” to refer to a case, so don’t.  Use a full cite, short cite, or “id.”  See BB 4, 10.  Rule 10 is very important because it discusses case citations.

Subsequent history.  If a case has subsequent history, it usually must be cited.  Here’s a bright-line rule: any time you ever use a case, KeyCite or Shepardize it for subsequent history.  See BB 10.7 for details on citing subsequent history, and the narrow exceptions to the rule.

Typefaces.  There are typeface conventions for text (BB 2.2) and footnotes (BB 2.1).

Internal cross-references.  Be correct in your use of “supra,” “id.,” “hereinafter,” and “infra.”  See BB 3.5, 4 for details.

Signals.  There are conventions to using “see,” “cf.” or no signal at all.  See BB 1.2.

Parenthetical information.  Authors often cite a source without explaining its relevance to the assertion in the main text.  Use parentheticals to provide information that explains the relevance of the cited authority.  See BB 1.5.

Quotations, omissions, and alterations.  These are important rules, too.  Quotes of more than 49 words must be indented, single spaced, and follow the paragraph structure of the original.  See BB 5.1.  Omissions and alternations are governed by BB 5.2 and 5.3.  Those rules also address how and when to use ellipses (“. . .” or “. . . .”) and brackets.

Books and articles.  See BB 15 and 16.

Internet sources.  See BB 18.2.  There are different ways of citing internet sources that are “parallel” to print sources, and sources that are available only online.  Sometimes you’ll have to make a judgment call regarding which category applies.  See BB 18 in general for other types of non-print sources (databases, CD-ROM, films, recordings, etc.)  

Last updated Nov. 11, 2014