Legal Commentary

It seems to me there are two main ways to approach writing scholarship. One is to write the piece out in your own words, essay-style, perhaps in a somewhat broad or skeletal form, then go back and fill-in citations and support, perhaps changing language to quote from or track sources, and fleshing out some parts of the piece in the course of discussing sources. The other is to write and footnote at the same time. For me, this has meant sitting down with all the sources I am using for each portion of the paper, getting the language of each sentence and paragraph precisely right, quoting or tracking the sources, and filling in the footnotes, including pin cites and parentheticals. It basically means reading, researching (or at least reviewing research), and writing at the same time.

In the past, I have been in the latter camp. One benefit is that even a first draft tends to look fairly complete. But it is a laborious approach, requiring that I literally surround myself with sources spread out on the floor, flipping through books, articles, and cases just to write a single complete sentence. Given the time it takes to write just one paragraph, it can be hard to do anything in short openings of time, say in between class and a faculty meeting--big blocks of time are needed. And it can be hard to gird yourself to sit down and do something because it feels so slow and labored--it lends itself to writer's block.

For my current project, therefore, I am trying the first approach. I am going to write it out, unsourced and without footnotes, in my own words as a first draft--as you would write an unfootnoted essay. I know (basically) what I want to say (I have done most of the key research) and can get it down in this quasi-essay form. I then will sit down with the sources as part of the process of editing and fleshing out my arguments. I will leave some parts and arguments initially skeletal and fill those in later, when I sit down with the sources in front of me. I think this approach works well for this paper because 1) it uses (relatively speaking) fewer sources and will not have a lot of long string cites; 2) I already workshopped the topic, which caused me to work through the entire argument and gave me some language to use in that first draft (something I think I may do again in the future, if it helps the writing); and 3) some parts of this paper already have appeared in print, in slightly different and shorter form. But if I get a draft completed in this form in the next couple of weeks, even if I then must labor through the sourcing process, I will feel like I have at least initially accomplished something.

This may mean the answer as to the best approach is "it depends." It depends on the type of project and it depends on the prior literature and authority to be incorporated into the paper and it depends on what stage I am coming into the writing. And it depends on how quickly I need a feeling of having accomplished something. And maybe we really all do some combination of the two approaches.

But I would like to know: How do others go about the actual writing process?