Last revised June 3, 2015
This document contains everything I find myself saying repeatedly to students looking to work with me: I’ve put it online to save you a trip to my office.
Contents:
Start with email. I’m online frequently, I can respond quickly, and many questions are easiest to pose in written form.
Before class is a terrible time to talk to me about anything other than why I should or shouldn’t call on you. I’m focused on preparing and my brain has room for almost nothing else. After class is better, but sometimes I need to run to another commitment, and I’m almost always too exhausted to give you the focus you deserve. If you want me to remember or respond to something, put it in email.
If you prefer to talk in person, the best thing is to visit me in my office. I post office hours each semester, and I promise to be in or near my office then. It’s fine to come in without an appointment, although if you don’t make one you run the risk that someone else will be there when you arrive. Email me to set one up.
If my office hours don’t work for you, then please email me to make an appointment at another time. Give me a range of options to work with. If you say only “Can you meet Monday at 6:00,” I will respond, “No; I teach then” and we will go back and forth. Instead, tell some days and times you could meet, and I will propose a specific time. Please respond quickly if you can; I am holding that time for you while I wait to hear back, which means it’s not available for someone else.
If we make an appointment, I expect you to be there, and to be on time. Missing appointments is a terrible professional habit, one that will land you in hot water with supervising attorneys and with judges. If you must cancel, please give me as much advance notice as you can.
I am available to supervise papers (including cert papers) on any topic in Internet law or intellectual property.
The legal research paper is likely to be an unfamiliar genre. It is more tightly structured and argued than the typical college research papers: you must support your claims with legal authorities, and must anticipate objections and respond to them. At the same time, it is more open-ended than a predictive memorandum or persuasive brief. Unlike in a memorandum, you must go beyond merely describing existing law on a point; unlike in a brief, you have the freedom, and the responsibility, to find the answer you think is best.
I have learned from experience that the most important difference between students who successfully write excellent papers and those who struggle badly is good up-front planning. If your topic, research plan, and schedule aren’t clear when you start, things will only go downhill. Thus, I require students who would like to write a cert paper with me to provide me with a written proposal that contains the following:
If you give me all of these, and I am not already committed to supervising too many other papers, and I believe that we can work effectively together, then I will happily supervise your paper. If you are expanding an earlier paper or a Note into a cert paper, your existing draft can substitute for everything but the preemption check.
You may have noticed that pulling together a proposal is likely to require some significant research. This is not an accident. There is no way to know what your thesis should be without doing at least some reading. Writing the proposal demonstrates that you will be able to do the independent work required, and pulling the proposal together will make it yours.
Intellectual property and Internet law are excellent places to look for paper topics. They are fast-moving, which means that there are many developments worth writing. Because of the undeveloped state of the law, courts read and cite to student work with some frequency. And they happen to be intrinsically interesting; the cases often involve vivid and memorable facts.
One way to get paper ideas is to come to IP Homeroom: our discussions of current events may get you started down a fruitful path. The resources on the IP Homeroom homepage are also great sources of inspiration–and pointers to sources where you can dig down to learn more about an interesting issue.
In particular, I highly recommend keeping up with the Bloomberg BNA reports (details and instructions are on the IP Homeroom homepage). BNA officially stands for “Bureau of National Affairs,” and unofficially for “Boring, Nevertheless Accurate.” It publishes dispassionate and clear news items on recent cases and other developments in the law. I read them myself to stay on top of legal news, and if you are looking for recent issues that have not already been written to death by others, the BNA reports are a gold mine.
I am happy to talk about topics with you. I can help tell you whether a topic is likely to be feasible to write about, and also whether it is likely to be preempted. In general, the older and the more famous a case or an issue, the more likely it is that someone already has written what you would say, or will have by the time you’re done. There is almost nothing to be said about file-sharing and copyright that has not already been said dozens of times.
The number one most common reason I decline to supervise a paper is that the lack of a topic. I am happy to talk about possible subjects, and see below for advice on choosing a topic. I have learned, however, that if I take a strong and early role in shaping the direction of a project, the quality of the end result suffers dramatically. To have the motivation to carry through the long research and writing process, you need to own your own project.
The number two most common reason I decline to supervise a paper is that the proposed topic is too broad. “Privacy issues with online advertising” is not specific. “Whether recreated flash cookies violate the Computer Fraud and Abuse Act” is.” Vague and general topics lead to sprawling and undirected research, which in turn is generally impossible to develop into a paper that makes and defends an argument convincingly. Broad claims–e,g, “Younger generations no longer respect copyright law”–are also far more likely to have been preempted by a flood of papers making related arguments. If your thesis falls into this category, I may offer to supervise an Independent Written Work while you do the reading necessary to refine it, but I will not commit to be your cert paper supervisor until you have come up with a workable topic and thesis for the paper itself.
When I supervise papers, I expect you to keep to a schedule. Here is a typical version:
If I see that you are missing deadlines and are unable to get yourself back on track promptly, I will call off the Independent Written Work before you waste more of your and my time. This may seem like a harsh measure. I’ve seen enough papers, though, to know that you are better off cutting your losses than continuing to struggle with a paper that has gotten out of control.
In light of the strict series of deadlines, I highly recommend talking to me and obtaining my approval during the semester before you plan to write your cert paper. Having my approval in hand by the time you select courses is a good goal to set yourself.
My usual length target is 10,000 words (including footnotes). Longer papers are usually fine; shorter ones require good cause. Use footnotes with citations in Bluebook style. It is hard to generalize about how much and what types of sources you will need to rely on. But a general rule of thumb is that if you have not read several books and dozens of law review articles, and looked at a hundred cases or so, you probably have not read widely enough to understand your topic at the level you need to. The purpose of your bibliography is both to create your reading list and to get a sense of the lay of the land so you devote your reading time appropriately.
Structure the paper in law-review form, using roman-numbered Parts, lettered Sections, Arabic-numbered Subsections, and so on. Think hard about what goes in each section; these units are the pieces of your argument. As you are preparing your outline, you may want to write the main moving parts–major cases, important concepts, etc.–on index cards and move them around on your floor until you have found an arrangement that integrates them all coherently.
The default style for formatting papers–double-spaced 12-point Times New Roman or Cambria with single-spaced 12-point footnotes and 1-inch margins–wastes paper and is terrible for readability. Try an 11-point single-spaced font with 1.5” margins and 9-point footnotes and you may be surprised at how much easier it is to work with your text. Consider using a better typeface, too: alternatives likely already on your computer include Palatino, Garamond, Century Schoolbook, and Baskerville.
The leading guides to the curious genre that is the legal research paper are:
An outstanding and concise guide to foratting is Matthew Butterick, Typography for Lawyers.
On legal usage, I recommend Bryan Garner, Garner’s Dictionary of Legal Usage. Are you curious about when to write “case,” “opinion,” “decision,” or “judgment?” “Pleased” or “pled?” Garner will tell you.
Yes, I will give you a mock oral argument for any moot court competition in an area I know something about. I’m an aggressive mock judge: someone needs to help you prepare for loaded, surprising, and unfair questions. Email me to find a time.
I regularly write letters of recommendation and serve as a reference for students, and almost always say “yes” if asked. Before you ask me to write on your behalf, consider how effective a letter I can write for you. I am much more able to say specific and positive things if you have been active in class, I have supervised you on a project or externship, I have evaluated your written work product, or there is some other reason I know you and your work well. If you got a worse grade in my class than in your others, another professor might be a better choice, or a supervisor from work.
If you would like me to write on your behalf, please contact me as far in advance as possible before the deadline. Give me a copy of your current resume, and tell me everything I need to know about the application, including what you are applying for, how I should address the letter, how it should be delivered, and when it is due.
I prefer not to write general “to whom it may concern” letters of recommendation, for two related reasons. First, letters are more effective when they are tailored for a particular position. Second, many recipients don’t believe that letters of recommendation are fully objective unless they are also confidential.
In particular, I am happy to give advice on and write recommendations if you are applying for clerkships. Start thinking about this early; clerkship applications should not be rushed. I will need your list of judges well in advance of the deadline. I am not on a first-name basis with many judges, but I make phone calls in occasional and exceptional cases.
I sometimes hire research assistants. I don’t typically have very many tasks for them, and when I do, it’s often tedious scut work that needs to be done on a short deadline. I hire almost exclusively from the ranks of my former students. Grades and credentials don’t matter to me; I care about writing, organization, enthusiasm, diligence, and the intangible factors that will make for a good working relationship. If you would like to express interest, send me an email, and I’ll keep it on file for the next time I need assistance.