[*PG77]CULTIVATING OUR EMERGING VOICES: THE ROAD TO SCHOLARSHIP
I am a professor of color at a predominately white law school where one of my teaching responsibilities involves writing. I have taught both objective and persuasive legal writing for nearly a decade. As part of my role, I teach students how to construct and deconstruct legal premises and theses and to present legal arguments in specific writing conventions. In short, I teach process—how to nurture thoughts and ideas into concrete arguments. For the most part, I feel comfortable in this role; I have learned the “King’s English” and have developed many of the essential skills to move effectively within the “King’s Court.”2
As a neophyte scholar of color, however, I often experience varying degrees of ambivalence in constructing and cultivating my own ideas from theory to scholarship. Similar to other pre-tenured professors, I am bombarded with several primary concerns that ultimately affect how I write and what I write about. First, I am mindful of the significance of producing scholarly writings that, in some manner, contribute to the broad array of currently existing scholarship in a specific legal area. Second, I am reminded by colleagues of the significance of producing “good legal scholarship”—scholarship that is well researched, documented, and respected by peers. Third, I am conscious of many of the criticisms and the under-valuation of both [*PG78]minority perspectives on racial and gender issues and the use of non-traditional modes of discourse when analyzing these issues.3 Finally, I am aware of the need to pursue and select a topic that will appeal to the law review editors and the inherent presumptions that too often accompany the placement of one’s article or essay with a respected law review or journal.
In preparation for the First National Meeting of the Regional People of Color Legal Scholarship Conferences’ panel discussion on “Nurturing Our Emerging Voices,” I share a few of my thoughts and experiences on the beginning stages of the writing process. Specifically, I will briefly discuss a few of the hurdles that I faced in developing my scholarship and my strategies for overcoming them. This essay will focus on the following themes: selecting a topic and choosing a title, cultivating ideas through research, and developing a writing style. It will not, however, delve into the specific mechanics of drafting the law review article.
Although I realize that my comments may be old hat for many of the established scholars in the audience, my hope is that my discussion will, in some way, contribute toward assisting new scholars of color in their own transition from practical to scholarly writing.
Law reviews provide a medium for academic discourse and resolution of legal issues. Traditionally, law review articles have served two basic functions: the resolution of jurisdictional conflicts of law in the context of existing factual situations and the application of existing law to new factual situations or new laws to currently existing factual situations.4 The publication of scholarly articles and other writings is critical for success in the legal academy.5 As I paraphrase the com[*PG79]ments of many of my mentors and colleagues at law schools throughout the country, one will never be denied tenure solely on the basis of teaching evaluations. One will, however, be denied tenure for failure to produce scholarship.6
Clearly, professors of color are in the minority at most law schools.7 As fate would have it, many are thrown into the midst of academia without a formal introduction to teaching or scholarship and without mentors to nurture them. Because many professors of color spend the first year or so just prepping for their teaching responsibilities, their scholarship is often either tabled for the moment or avoided because of fear or uncertainty. Unfortunately, one of the biggest roadblocks in developing scholarship can be as simple as the choice of a topic. I offer the following considerations for selecting a topic and choosing a title.
A prerequisite to addressing the issue of topic selection is identifying where to find topics. How does one find a topic? My advice on this point is by no means exhaustive. One might consider the following legal and non-legal sources for generating ideas for topics: advance sheets for case decisions, legal and non-legal newspapers, and casebooks (e.g., the questions and comments following the discussion of the principle case). Other helpful sources for selecting topics include research on issues during practice or clerkships, computerized legal research,8 Internet bulletin boards or listserves, legal seminars and conferences in an area of specialty, classroom discussions, and conversations with colleagues. Any one of these avenues could provide an interesting lead on an ultimate topic.
[*PG80] Selecting a topic can be difficult, however, especially when drafting the first article or essay. First, many new scholars often struggle with choosing a topic that will lend itself to a sophisticated legal analysis while remaining somewhat interesting for the reader. Nonetheless, assuming that the scholarship will be submitted to the law reviews or law journals for publication, it is important to remember that the initial audience will consist of students who are the editors and staff members of the law journals.9 Because most of these students are relatively new to the study of law, their interests and knowledge on many legal topics is limited. Therefore, choosing a topic that is intellectually manageable10 for the student editor may be critical for passing the initial screenings of the massive numbers of articles these journals receive annually.11
Second, any selection of a research topic should include an evaluation of one’s potential audience, the topicality and originality of the topic, and one’s own interest in the subject matter.12 I struggle with attempting fully to define topicality. In my own writing, it has meant that the general topic area is one that other law professors have [*PG81]recently written about.13 On the other hand, topicality can be construed to include timeliness. For example, one might consider how recent technological advancements in the practice of law could necessitate a change in the American Bar Association’s Model Rules of Professional Responsibility.14 It is important to keep in mind, however, that selecting a current or hot topic will often require one’s immediate attention and swift submission of an article for publication in order to avoid preemption on the subject by other scholars.15
The topic should also demonstrate originality.16 Good law review articles are ones that take “challenging positions on controversial issues, applying progressive, intelligent analysis to existing cases and commentary.”17 Originality, however, often seems to be at odds with topicality because many law review editors tend to recognize an issue as topical only if several other scholars have already written about the topic.18 Also, because of the abundant legal scholarship already in existence, coupled with an estimated 20,000 new articles that practitioners and law professors produce each year, establishing originality might seem impossible.19
I offer two solutions for insuring that a topic will be viewed as original. First, even when dealing with a more traditional subject area or one that has been discussed and analyzed by others, one can and [*PG82]should always strive to achieve an original conclusion. On the other hand, a more challenging approach might be to select a topic that is the result of some recent technology or shift in public policy.20 The latter approach, however, requires that the author keep abreast both of current technology and its impact on law and of public policy issues stemming from recent legal controversies.
Finally, the creation of a research folder can be helpful for future topic selections. This folder can store notes with topic ideas, newspaper clips, e-mails, Internet printouts, LEXIS or Westlaw downloads, and any other information that may have caught the author’s attention during the academic year. A periodic review of this folder may be helpful when considering one’s next article.
The title can be one of the most creative aspects of a piece. It can be analogized to the label of a product for public sale. Just as one would attempt to create a label and marketing scheme that would attract the interest of a consumer, the title should likewise attract the interest of the audience.
Good titles reflect the author’s thesis. In developing a title, it is helpful if the thesis can be easily detected in the specific wording.21 Also, many scholars often use catchy words, phrases, case names, and metaphors in the title to paint a visual picture in the mind of the reader.22 Finally, many scholars use the colon as punctuation in the title to separate the general from the more specific language.23 In any case, all of these approaches are acceptable and may help to attract the attention of the law review editors, colleagues, and other legal academics.
One easy way to focus and avoid some of the initial roadblocks that typically occur in topic selection and in attempting to draft the massive law review article is to consider participating in a law-related [*PG83]essay writing contest or drafting a review of a leading scholar’s book.24 For the most part, these are shorter than typical law review articles and may provide the psychological comfort zone necessary to get scholarship moving. I have found that each tends to provide a manageable context for writing and the opportunity to finish a reputable piece of scholarship in a reasonable period of time. With a writing contest, the contest administrators will have selected a narrow topic to be addressed and a specific page limit. On the other hand, with a book review, the author’s book will be the basis for evaluation and critique.
In drafting a review, it is helpful to be aware that law review editors are much more attracted to scholarly reviews of books and articles written by leading scholars in a field of study. They are more interested in publishing critical reviews of the book or article than rubber stamps of the author’s theories and conclusions. It is also important to avoid the tendency to comment on or criticize every aspect of the author’s work. Focusing on a few central themes and providing a well-researched and documented analysis and critique of those issues will offer greater leverage and more room to develop the analysis fully.25
Finally, it is critical that one select a topic one finds genuinely interesting. Moreover, because of the amount of time, energy, and intellectual thought expended when writing a law review article or essay, it is imperative that the author select a topic that is not only interesting but also intellectually challenging. This lesson is probably one of the most valuable I have learned in developing my own scholarship and to be gleaned from this essay. Because most law review articles take the writer an estimated 150 hours to complete, it is essential that one select a topic that will stimulate and capture one’s own interest.26 Otherwise, the writer may find that “[w]riting about something [*PG84]that simply does not interest [him or her] is an invitation to procrastination and mediocrity.”27
Upon selecting a topic, the author must become immersed in the research process. In short, this means that the author should read everything that is pertinent to the subject.28 I offer this advice for three reasons. First, through research, the author will discover the issues that have been covered by other scholars and the intricacies and depth of the current analyses for the topic area. Second, it acts as a check against preemption.29 Despite how appealing the topic may look, any work will be in vain if the work of other scholars has preempted it. Finally, an exhaustive search of all of the articles written about the topic will help the author to focus on a specific issue or point that remains unsettled or to see problems with the prevailing views of the existing analyses.
In performing my own research, I begin by perusing the law review files on LEXIS or Westlaw to determine the magnitude of what has already been written on my topic. I then pull the articles that seem relevant and review them. I may also consult secondary authorities such as legal encyclopedias and treatises on the topic for a more general review of the subject area.30 Once I am satisfied that I have found the major articles written on the topic, I perform a more critical review of the articles and pull the major cases, statutes, and other primary authorities that have been cited by the authors.31 I feel comfortable in stopping my research only after I begin to see the same sources being referred to and cited to repeatedly.
Upon the completion of research, the drafting process begins. Although I will not discuss the specific mechanics of the writing process, I will share a few thoughts regarding the use of non-traditional writing styles to convey an analysis. Specifically, this section will briefly touch upon the use of narrative and storytelling to convey arguments and the politics surrounding that usage.32
The legal academy is conservative. For centuries, it has been dominated and monopolized by white males. Only recently have females and scholars of color been afforded opportunities to join law faculties nationwide. Even now, minority representation on law faculties is minuscule. Law professors have used the same pedagogy and methodology in teaching students for many decades. As a professor who teaches writing, I am required to teach my students how to present and process information using those legal writing conventions that are recognized and followed by practitioners, law professors, and judges.
Although I find the use of storytelling and narrative refreshing and enlightening (as I believe most scholars of color do), its weight and credibility in the scholarship arena have been challenged and questioned by scholars who are not of color, prompting scholars of color to defend it.33 Many scholars of color assert that storytelling and narrative are critical in conveying a “voice of color”34 in the legal academy, one that has for decades been “institutionally silenced, so[*PG86]cially marginalized, and legally oppressed.”35 I do not begin to delve into the heart of this debate. I will, however, raise a few considerations regarding the decision whether to incorporate storytelling and narrative into a piece of writing.
Professor Derrick Bell is probably most noted for his use of storytelling in discussing issues pertaining to racism and sexism. I have drafted critiques of his most recent books, Gospel Choirs36 and Afrolantica Legacies,37 in both of which Professor Bell extensively uses storytelling to convey his arguments. By default, I immediately confronted the issue of how to critique non-traditional legal scholarship. In drafting my reviews, I grappled with two major criticisms that have been posited by scholars who are not of color against the use of storytelling and narrative. First, some challenge the legitimacy of the use of fiction when the facts alone are sufficient to convey the intended message.38 Second, some argue that many readers who are not of color may miss the relevance of the author’s selection and use of a specific story.39
Whether or not these criticisms are valid, many believe that storytelling allows scholars of color to reach an audience outside the traditional audience of readers. Storytelling may, therefore, be a useful and liberating mode of discourse for scholars of color, whose voices have been and continue to be silenced. On the other hand, authors should keep in mind that many institutions do not hold articles written in the storytelling style in high regard and that such articles, therefore, may not help the author during tenure considerations. Because the decision whether or not to use the storytelling style involves such conflicting considerations, the decision should be a personal, case-by-case one.
Most importantly, however, one must follow his or her heart. The writing will progress with greater ease if the author is passionate about the topic. For example, if race is of importance to the author, then he or she should write about it.40 Storytelling and narrative provide great [*PG87]segues into deconstructing race and gender issues. My solution in critiquing Professor Bell’s work was simply to turn my review into a scholarly piece by documenting sources when analyzing and critiquing Bell’s arguments and by critically analyzing the arguments proffered.41
In addition, it should be noted that storytelling and narrative are becoming popular with scholars who are not of color. For example, a speech during a symposium is often no more than a brief narrative of the speaker’s experiences, and many law reviews sponsor symposia and publish these speeches in order to ensure that voices of color are heard.42 Finally, many law journals at prestigious institutions are also aware of the important contributions that scholars of color have made through the use of these tools in their writings and would welcome submissions of articles written in this style.43
The “voice of color” has too often been just another cry in the wilderness—here today and gone tomorrow. As law professors of color, we have the unique opportunity to speak out on many different issues and to have our thoughts and ideas immortalized through our scholarship. Although the initial stages of scholarly writing may seem difficult and tedious, the effort is worthwhile: our writings will have a lasting legacy and an immeasurable value for future scholars. Let us continue to lift our voices. Even more importantly, however, let us ensure that our voices will be heard for years to come through our scholarship.
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