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Guidelines In Making Research Paper

"How to" Guideline series is coordinated by Helen Mongan-Rallis of the Education Department at the University of Minnesota Duluth. If you have any questions, comments, or suggestions to improve these guidelines please me at e-mail hrallis@d.umn.edu.

Guidelines for writing a literature review

by Helen Mongan-Rallis. Last updated: November 21, 2014
[Note: For these guidelines, in some sections I have quoted directly some of the the steps from: Galvan, J. (2006). Writing literature reviews: a guide for students of the behavioral sciences (3rd ed.). Glendale, CA: Pyrczak Publishing.]

What is a literature review?

A literature review is not an annotated bibliography in which you summarize briefly each article that you have reviewed. While a summary of the what you have read is contained within the literature review, it goes well beyond merely summarizing professional literature. It focuses on a specific topic of interest to you and includes a critical analysis of the relationship among different works, and relating this research to your work. It may be written as a stand-alone paper or to provide a theoretical framework and rationale for a research study (such as a thesis or dissertation).

Step-by-step guide

These guidelines are adapted primarily from Galvan (2006). Galvan outlines a very clear, step-by-step approach that is very useful to use as you write your review. I have integrated some other tips within this guide, particularly in suggesting different technology tools that you might want to consider in helping you organize your review. In the sections from Step 6-9 what I have included is the outline of those steps exactly as described by Galvan. I also provide links at the end of this guide to resources that you should use in order to search the literature and as you write your review.

In addition to using the step-by-step guide that I have provided below, I also recommend that you (a) locate examples of literature reviews in your field of study and skim over these to get a feel for what a literature review is and how these are written (I have also provided links to a couple of examples at the end of these guidelines (b) read over other guides to writing literature reviews so that you see different perspectives and approaches: Some examples are:

  1. Review of Literature: University of Wisconsin - Madison The Writing Center.
  2. How to ..Write a Literature Review: University of California, Santa Cruz University Library).
  3. Information Fluency - Literature Review: Washington & Lee University
  4. How to Do A Literature Review? North Carolina A&T State University F.D. Bluford Library.
  5. Selected Links to Resources on Writing a Literature Review

Step 1: Review APA guidelines

Read through the links provided below on APA guidelines so that you become familiar with the common core elements of how to write in APA style: in particular, pay attention to general document guidelines (e.g. font, margins, spacing), title page, abstract, body, text citations, quotations.

Step 2: Decide on a topic

It will help you considerably if your topic for your literature review is the one on which you intend to do your final M.Ed. project, or is in some way related to the topic of your final project. However, you may pick any scholarly topic.

Step 3: Identify the literature that you will review:

  1. Familiarize yourself with online databases (see UMD library resource links below for help with this), identifying relevant databases in your field of study.
  2. Using relevant databases, search for literature sources using Google Scholar and also searching using Furl (search all sources, including the Furl accounts of other Furl members). Some tips for identifying suitable literature and narrowing your search :
    1. Start with a general descriptor from the database thesaurus or one that you know is already a well defined descriptor based on past work that you have done in this field. You will need to experiment with different searches, such as limiting your search to descriptors that appear only in the document titles, or in both the document title and in the abstract.
    2. Redefine your topic if needed: as you search you will quickly find out if the topic that you are reviewing is too broad. Try to narrow it to a specific area of interest within the broad area that you have chosen (remember: this is merely an introductory literature review for Educ 7001). It is a good idea, as part of your literature search, to look for existing literature reviews that have already been written on this topic.
    3. As part of your search, be sure to identify landmark or classic studies and theorists as these provide you with a framework/context for your study.
  3. Import your references into your RefWorks account (see: Refworks Import Directions for guide on how to do this from different databases). You can also enter references manually into RefWorks if you need to.

Step 4: Analyze the literature

Once you have identified and located the articles for your review, you need to analyze them and organize them before you begin writing:

  1. Overview the articles: Skim the articles to get an idea of the general purpose and content of the article (focus your reading here on the abstract, introduction and first few paragraphs, the conclusion of each article. Tip: as you skim the articles, you may want to record the notes that you take on each directly into RefWorks in the box for User 1. You can take notes onto note cards or into a word processing document instead or as well as using RefWorks, but having your notes in RefWorks makes it easy to organize your notes later.
  2. Group the articles into categories (e.g. into topics and subtopics and chronologically within each subtopic). Once again, it's useful to enter this information into your RefWorks record. You can record the topics in the same box as before (User 1) or use User 2 box for the topic(s) under which you have chosen to place this article.
  3. Take notes:
    1. Decide on the format in which you will take notes as you read the articles (as mentioned above, you can do this in RefWorks. You can also do this using a Word Processor, or a concept mapping program like Inspiration (free 30 trial download), a data base program (e.g. Access or File Maker Pro), in an Excel spreadsheet, or the "old-fashioned" way of using note cards. Be consistent in how you record notes.
    2. Define key terms: look for differences in the way keys terms are defined (note these differences).
    3. Note key statistics that you may want to use in the introduction to your review.
    4. Select useful quotes that you may want to include in your review. Important: If you copy the exact words from an article, be sure to cite the page number as you will need this should you decide to use the quote when you write your review (as direct quotes must always be accompanied by page references). To ensure that you have quoted accurately (and to save time in note taking), if you are accessing the article in a format that allows this, you can copy and paste using your computer "edit --> copy --> paste" functions. Note: although you may collect a large number of quotes during the note taking phase of your review, when you write the review, use quotes very sparingly. The rule I follow is to quote only when when some key meaning would be lost in translation if I were to paraphrase the original author's words, or if using the original words adds special emphasis to a point that I am making.
    5. Note emphases, strengths & weaknesses: Since different research studies focus on different aspects of the issue being studied, each article that you read will have different emphases, strengths. and weaknesses. Your role as a reviewer is to evaluate what you read, so that your review is not a mere description of different articles, but rather a critical analysis that makes sense of the collection of articles that you are reviewing. Critique the research methodologies used in the studies, and distinguish between assertions (the author's opinion) and actual research findings (derived from empirical evidence).
    6. Identify major trends or patterns: As you read a range of articles on your topic, you should make note of trends and patterns over time as reported in the literature. This step requires you to synthesize and make sense of what you read, since these patterns and trends may not be spelled out in the literature, but rather become apparent to you as you review the big picture that has emerged over time. Your analysis can make generalizations across a majority of studies, but should also note inconsistencies across studies and over time.
    7. Identify gaps in the literature, and reflect on why these might exist (based on the understandings that you have gained by reading literature in this field of study). These gaps will be important for you to address as you plan and write your review.
    8. Identify relationships among studies: note relationships among studies, such as which studies were landmark ones that led to subsequent studies in the same area. You may also note that studies fall into different categories (categories that you see emerging or ones that are already discussed in the literature). When you write your review, you should address these relationships and different categories and discuss relevant studies using this as a framework.
    9. Keep your review focused on your topic: make sure that the articles you find are relevant and directly related to your topic. As you take notes, record which specific aspects of the article you are reading are relevant to your topic (as you read you will come up with key descriptors that you can record in your notes that will help you organize your findings when you come to write up your review). If you are using an electronic form of note taking, you might note these descriptors in a separate field (e.g. in RefWorks, put these under User 2 or User 3; in Excel have a separate column for each descriptor; if you use Inspiration, you might attach a separate note for key descriptors.
    10. Evaluate your references for currency and coverage: Although you can always find more articles on your topic, you have to decide at what point you are finished with collecting new resources so that you can focus on writing up your findings. However, before you begin writing, you must evaluate your reference list to ensure that it is up to date and has reported the most current work. Typically a review will cover the last five years, but should also refer to any landmark studies prior to this time if they have significance in shaping the direction of the field. If you include studies prior to the past five years that are not landmark studies, you should defend why you have chosen these rather than more current ones.

Step 5: Summarize the literature in table or concept map format

  1. Galvan (2006) recommends building tables as a key way to help you overview, organize, and summarize your findings, and suggests that including one or more of the tables that you create may be helpful in your literature review. If you do include tables as part of your review each must be accompanied by an analysis that summarizes, interprets and synthesizes the literature that you have charted in the table. You can plan your table or do the entire summary chart of your literature using a concept map (such as using Inspiration)
    1. You can create the table using the table feature within Microsoft Word, or can create it initially in Excel and then copy and paste/import the the Excel sheet into Word once you have completed the table in Excel. The advantage of using Excel is that it enables you to sort your findings according to a variety of factors (e.g. sort by date, and then by author; sort by methodology and then date)
    2. Examples of tables that may be relevant to your review:
      1. Definitions of key terms and concepts.
      2. Research methods
      3. Summary of research results

Step 6: Synthesize the literature prior to writing your review

Using the notes that you have taken and summary tables, develop an outline of your final review. The following are the key steps as outlined by Galvan (2006: 71-79)

  1. Consider your purpose and voice before beginning to write. In the case of this Educ 7001 introductory literature review, your initial purpose is to provide an overview of the topic that is of interest to you, demonstrating your understanding of key works and concepts within your chosen area of focus. You are also developing skills in reviewing and writing, to provide a foundation on which you will build in subsequent courses within your M.Ed. and ultimately in your final project. In your final project your literature review should demonstrate your command of your field of study and/or establishing context for a study that you have done.
  2. Consider how you reassemble your notes: plan how you will organize your findings into a unique analysis of the picture that you have captured in your notes. Important: A literature review is not series of annotations (like an annotated bibliography). Galvan (2006:72) captures the difference between an annotated bibliography and a literature review very well: "...in essence, like describing trees when you really should be describing a forest. In the case of a literature review, you are really creating a new forest, which you will build by using the trees you found in the literature you read."
  3. Create a topic outline that traces your argument: first explain to the reader your line or argument (or thesis); then your narrative that follows should explain and justify your line of argument. You may find the program Inspiration useful in mapping out your argument (and once you have created this in a concept map form, Inspiration enables you to convert this to a text outline merely by clicking on the "outline" button). This can then be exported into a Microsoft Word document.
  4. Reorganize your notes according to the path of your argument
  5. Within each topic heading, note differences among studies.
  6. Within each topic heading, look for obvious gaps or areas needing more research.
  7. Plan to describe relevant theories.
  8. Plan to discuss how individual studies relate to and advance theory
  9. Plan to summarize periodically and, again near the end of the review
  10. Plan to present conclusions and implications
  11. Plan to suggest specific directions for future research near the end of the review
  12. Flesh out your outline with details from your analysis

Step 7: Writing the review (Galvan, 2006: 81-90)

  1. Identify the broad problem area, but avoid global statements
  2. Early in the review, indicate why the topic being reviewed is important
  3. Distinguish between research finding and other sources of information
  4. Indicate why certain studies are important
  5. If you are commenting on the timeliness of a topic, be specific in describing the time frame
  6. If citing a classic or landmark study, identify it as such
  7. If a landmark study was replicated, mention that and indicate the results of the replication
  8. Discuss other literature reviews on your topic
  9. Refer the reader to other reviews on issues that you will not be discussing in details
  10. Justify comments such as, "no studies were found."
  11. Avoid long lists of nonspecific references
  12. If the results of previous studies are inconsistent or widely varying, cite them separately
  13. Cite all relevant references in the review section of thesis, dissertation, or journal article

Step 8: Developing a coherent essay (Galvan, 2006: 91-96)

  1. If your review is long, provide an overview near the beginning of the review
  2. Near the beginning of a review, state explicitly what will and will not be covered
  3. Specify your point of view early in the review: this serves as the thesis statement of the review.
  4. Aim for a clear and cohesive essay that integrates the key details of the literature and communicates your point of view (a literature is not a series of annotated articles).
  5. Use subheadings, especially in long reviews
  6. Use transitions to help trace your argument
  7. If your topic teaches across disciplines, consider reviewing studies from each discipline separately
  8. Write a conclusion for the end of the review: Provide closure so that the path of the argument ends with a conclusion of some kind. How you end the review, however, will depend on your reason for writing it. If the review was written to stand alone, as is the case of a term paper or a review article for publication, the conclusion needs to make clear how the material in the body of the review has supported the assertion or proposition presented in the introduction. On the other hand, a review in a thesis, dissertation, or journal article presenting original research usually leads to the research questions that will be addressed.
  9. Check the flow of your argument for coherence.


Galvan, J. (2006). Writing literature reviews: a guide for students of the behavioral sciences ( 3rd ed.). Glendale, CA: Pyrczak Publishing.


  1. UMD & library resources and links:
    1. UMD library research tools: includes links to
    2. Refworks Import Directions: Links to step-by-step directions on how to important to Refworks from different databases
  2. Writing guidelines:
    1. Purdue OWL (Online Writing Lab): A user-friendly writing lab that parallels with the 5th edition APA manual.
  3. APA guidelines:
    1. APA Style Essentials: overview of common core of elements of APA style.
    2. APA Research Style Crib Sheet is a summary of rules for using APA style.
    3. APA Style for Electronic Media and URL's: commonly asked questions regarding how to cite electronic media
  4. Examples of literature reviews:
    1. Johnson, B. & Reeves, B. (2005). Challenges. Literature review chapter from unpublished master's thesis, University of Minnesota Duluth, Minnesota.
    2. Maguire, L. (2005). Literature review – faculty participation in online distance education: barriers and motivators. Online Journal of Distance Learning Administration, Volume 8, No. 1, Spring 2005. State University of West Georgia, Distance Education Center.


Return to the Index of How To Guidelines

Again, the revision is shorter (189 vs. 160 words), and better.

3.      Read the cases.Read more of them, and read the ones you have read over again.

Only occasionally do students do anywhere close to the amount of research in the case law that is required for a good paper, however, where the law is – not in the law review articles, not in the treatises, not in the trade publication, not in the ALR annotations, but in the cases and other primary material (statutes, treaties, constitutions).Secondary sources can be helpful – they can point you to the cases that you need to read, or, on rare occasions, they can help you to understand the cases you have read.They should never be used as substitutes for the primary material on which they’re based.

And if that’s not enough of a reason to spend the bulk of your time reading judicial opinions, here’s another:They are, by far, the best models for the kind of writing that you are learning how to do.You read opinions so that you can start to soak up a way of talking about legal questions – a jargon, customary phrasings, ways of using and talking about precedent, and the like.If you read lots of opinions you are much less likely to write things like the sentence I’m looking at right now, from another student paper:

“Personal jurisdiction can no longer be missing ‘because the defendant did not physically enter the forum state’.Burger-King Corp. v. Rudzewicz.”

No court opinion that I have ever read has used the word “missing” in reference to personal jurisdiction.I have, therefore, no clear idea what this sentence means.But worse, it signals to me that the author of this sentence has either (a) not read very many opinions dealing with the question of personal jurisdiction, or (b) has not been paying much attention to those s/he has read.Neither is a good thing to communicate to your readers.

Third, you need to read lots of opinions because to be a good writer you must learn to be a good reader.It’s quite obvious, if you think about it for a minute.Writing involves reading what you have written, identifying its weaknesses, and revising to eliminate those weaknesses.Over and over and over again.(See Principle #9)It’s not easy.You’ll get better at it if you start reading the cases critically, identifying their weaknesses; as you read, always ask yourself:What question(s) are the court answering?How persuasive is their reasoning?

And finally, you need to read lots of opinions to find models for the kind of writing you want to learn how to do.Imitation is the sincerest form of flattery.When you read an opinion (or any piece of persuasive writing, for that matter – anything that works through an argument and reaches some conclusion) that you think is well-written, well-organized, and effective, ask yourself: what makes it work well?How is it organized?Is there an introduction, and what functions does it serve? How does the author manage the transitions between sections?How does the author let the reader know the overall plan of the work?When does the author summarize what has come before?

Writing is a craft; find others who perform it well, observe their methods, and try to emulate them.

4.      Legal documents are persuasive documents; they answer some question, and they persuade the reader that the answer is the correct one.They are not “book reports.”

The goal, ultimately, is to state a specific question (or set of questions), to provide the reader with an answer to that question(s), accompanied by a logical argument designed to persuade the reader that the answer you have come up with is the correct one.You will not write a paper “about copyright law”;you will pose, and then you will answer, a specific question about copyright law.

All legal writing, I believe, is like this: briefs, judicial opinions, memoranda of law, etc.All are designed to persuade the reader of something by the force of argument(s).

I cannot stress this strongly enough; far and away, the most common reason that student papers are unsatisfactory is the absence of any sense that they are designed to marshal arguments in support of the author’s answer to a particular question.

Much legal writing is straightforward, in the sense that you know precisely where you are going when you start.When writing a brief, for example, you know where your argument has to lead:You are trying to persuade the reader that “the defendant [i.e., your client] is not liable for doing X,” or “The defendant [the opposing party] is liable for doing Y,” or “Defendant’s motion for summary judgment should be granted/denied,” or “The court cannot constitutionally exercise jurisdiction over the claim in this case,” or . . . .Knowing exactly where you want to go, you can then work backwards from there to put together your argument.

With a research paper, on the other hand, you don’t really know where you are going when you begin.You don’t know when you begin, in other words, the answer to the question you’re posing – that’s why you have to do research.You don’t really know (when you start) “whether section 512(c) of the Copyright Act covers the dissemination of decryption software”; you don’t know (when you start) “whether the purposes underlying the Patent Act are furthered by Internet business method patents”; you don’t know (when you start) “whether courts can assert personal jurisdiction over foreign website operators”; you don’t know (when you start) “whether clickwrap licenses are or are not enforceable under the Uniform Electronic Transactions Act,” . . .

This makes research papers more difficult to write than briefs; it is hard to construct an argument when you don’t know where the argument is going to go.

On the other hand, this uncertainty about where you’re headed can be turned to your advantage.You can change your answer – indeed, you can even modify the question you’re asking – as you go along.This is a luxury you don’t have with briefs; you can’t say to your client:“Well, I’ve finished my research and, lo and behold, I have discovered that you are, after all, liable under section so-and-so of the Securities Act”!

But with a research paper, you may start out with some thesis – e.g., that section 512(c) of the Copyright Act covers the dissemination of decryption software – but then conclude, after doing research on the question, that much stronger arguments exist for the opposite proposition (i.e., that section 512(c) of the Copyright Act does not cover the dissemination of decryption software).

5.The purpose of writing.You have to do two things when you are undertaking a legal writing project.First, you have to figure out the answer to whatever question you trying to answer:Does section 512(c) of the Copyright Act cover dissemination of decryption software?Are the purposes underlying the Patent Act furthered by Internet business method patents?Are clickwrap licenses enforceable under the Uniform Electronic Transactions Act?Etc.

The second job, which you can only accomplish after you have accomplished the first, is to write your paper in such a way that you persuade the reader that the your answer is the correct one.

In the best of all possible worlds, you would write two papers:The first would be the one you need to write in order to figure out the answer to your question. The second paper is the one that communicates what you have to say to your readers.

Most of you will not, actually, write two separate papers; but you need to think about your project as if you were going to do so.The first paper is the one that people often lose sight of – the one that helps you figure out what it is you’re trying to say.The only way for most of us mortals to construct a complicated, many-layered argument is to write it down to see whether it makes sense.Unless the question you’ve posed is a very simple one, you are not going to be able to figure out the answer without putting your argument down on paper and reading it through to see if it holds water; it’s going to be far too complicated for you to keep the whole thing in your head.Figuring out whether section 512(c) of the Copyright Act covers dissemination of decryption software is probably going to require you to figure out (a) what do you mean by “decryption software?,” and (b) “what does 512(c) actually say?,” and (c) “what did Congress mean by using the word “service provider” in Section 512?,” and (d) “is decryption software considered ‘speech’ so that First Amendment applies to our interpretation of section 512(c)?,” and perhaps many other questions like that.You can’t possibly keep all of that in your head and figure out where your argument is headed without writing it down and reading it through.

Use your drafts, in other words, to help make your argument better; if your argument doesn’t “work” when it is written down, it doesn’t work at all; if you can’t write it down, you don’t have an argument (yet).

The “second paper” – or your other task – is quite different.Once you have figured out where you are going – once you have written something that enables you to see the answer to the question that you have posed for yourself – you need to walk the reader through your argument as effortlessly and painlessly as possible.The reader does not necessarily need to see every step that you took to reach your conclusion; you may have taken some wrong turns, and gone down some dead ends, in trying to figure out how to answer the question, and the reader does not need to see all of those (and will be very confused if you show them to him/her).

Another way to say this:When you begin, you are writing for you, to help you understand what is going on.As you near the end, you write for your reader.

6.You will not learn to write well by talking – to me, or to anyone else – about writing; you will learn to write well by writing.

I’m always happy to talk to you about your project.But the bottom line is that talking to me is much less valuable than most students think it is.Talking about writing is like talking about carpentry, or about playing the piano, or about riding a bicycle – interesting, but rarely of much help if you are trying to learn how to do those things.You have to do them, over and over and over.Writing – actually practicing the skill you are trying to master – is almost always more useful to you than talking about writing.I’m not suggesting you should not talk to me if you have questions; but if you would like to talk to me about something, write down what you want to talk about.A sentence, or a paragraph, or an outline, describing your thoughts, or the question(s) you have, will do.That will not only give you valuable practice in the art of writing, but I guarantee you that it will make our subsequent conversation much more productive.

7.      Give yourself time.

Writing well is often painful; it is always difficult and unbelievably time-consuming.It will always take longer — usually a lot longer — than you think (or than you’d like) to get an outline or a decent draft together, let alone your final product. You must commit to spend however much time it takes to produce a quality product.

8.There is, unfortunately, no such thing as an “A for Effort” when it comes to written work.

The reader doesn’t know, and the reader doesn’t care, how much time you spent producing whatever it is you have produced, how much sweat poured off your brow during long nights in the library, etc.All he or she has, and all he or she cares about, is what you put in his or her hands; that is all that matters to the reader because that is all that the reader can see.Your argument must stand on its own two feet.You must always read your own work from the reader’s perspective.Sounds easy enough; it is not.Learning how to do this is critically important.Before you submit anything to me – an outline, a draft, whatever – you must read it over, from start to finish, in one sitting, as if you were the person to whom it is addressed -- the ‘average reader’ (if you are writing a law journal article), the partner in a law firm (if you are writing a memorandum to a partner), the judge (if you are writing a brief or legal memo).

One of the hardest things about writing well is remembering that your reader does not have in his/her head everything about the subject matter that you have in your head; indeed, the reader may have no information at all about the subject matter other than what is in your paper.Your reader will start at the beginning of your paper and read through to the end, picking up whatever information you are giving him or her and only that information, and only in the order in which you present it.You must do the same if you want to have any chance of getting the reader to understand what you are saying. Developing the ability to edit your own work in this way is far more important than whatever you may come up with as far as substance is concerned in this project.

9.      Revise, revise, revise.

You need to revise your work as necessary so that it makes sense to that reader.You don’t stop because you have completed one, or two, or four revisions of your paper; you stop when it is clear to the reader.If that takes five, or fifteen, revisions, that’s what it takes.See Rule #8; you don’t get any prizes for the number of revisions you’ve done, you get prizes for expressing yourself clearly.Please:If you are handing something in on Thursday afternoon, do not print it out and read it over on Thursday morning; leave yourself time for a final round of revisions before you hand it in.

10.Everything you put on the page matters.

Everything – every word, every bit of punctuation, every decision to begin a paragraph in one place instead of another.That’s probably not true in every field; it’s true, though, in the law.

Take the lowly comma.When Robert Frost’s Collected Poems was originally published, it contained these lines (in “Stopping by the Woods on a Snowy Evening”):

“The woods are lovely, dark, and deep

But I have promises to keep

And miles to go before I sleep

And miles to go before I sleep.”

In fact, what Frost had written was:

“The woods are lovely, dark and deep

But I have promises to keep

And miles to go before I sleep

And miles to go before I sleep.”

Insertion of the extra comma in the first version makes a big difference, does it not?

We are not poets, and the texts we read and write as lawyers are, heaven knows, not poetry.But consider the following.The Copyright Act of 1874 granted copyright protection to “any engraving, cut, print, or . . . chromo[lithograph].”It also provided that “in the construction of the act the words ‘engraving,’ ‘cut,’ and ‘print’ shall be applied only to pictorial illustrations or works connected to the fine arts.”

Question:if something is a “pictorial illustration” that is not “connected to the fine arts,” is it protected by copyright?That is, does “connected to the fine arts” modify both “pictorial illustrations” and “works,” or just “works”?See Bleistein v. Donaldson Lithographic , 188 239 (1903) (Holmes, J.).Note how the meaning of this phrase would change if (a) there were a comma after “pictorial illustrations” (so that it read:“the words ‘engraving,’ ‘cut,’ and ‘print’ shall be applied only to pictorial illustrations, or works connected to the fine arts”) or (b) there were commas after both the words “pictorial illustrations” and “works” (the words ‘engraving,’ ‘cut,’ and ‘print’ shall be applied only to pictorial illustrations, or works, connected to the fine arts”).

Here’s another, more complicated, illustration.Section 512(e) of the Copyright Act provides:

“(e)When a public or other nonprofit institution of higher education is a service provider, and when a faculty member or graduate student who is an employee of such institution is performing a teaching or research function, for the purposes of subsections (a) and (b) of this section such faculty member or graduate student shall be considered to be a person other than the institution, and for the purposes of subsections (c) and (d) such faculty member's or graduate student's knowledge or awareness of his or her infringing activities shall not be attributed to the institution, if‑‑

(A) such faculty member's or graduate student's infringing activities do not involve the provision of online access to instructional materials that are or were required or recommended, within the preceding 3‑year period, for a course taught at the institution by such faculty member or graduate student;

(B) the institution has not, within the preceding 3‑year period, received more than two notifications described in subsection (c)(3) of claimed infringement by such faculty member or graduate student, and such notifications of claimed infringement were not actionable under subsection (f); and

(C) the institution provides to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the relating to copyright.”

Read it again, carefully.Here’s a little problem of statutory interpretation.Assume that:

(a)     is a “nonprofit institution of higher education” that is a “service provider” within the meaning of subsection (e);

(b)    A faculty member – call him “Professor Post”– is employed by , and he is performing a “teaching or research function” within the meaning of subsection (e);

(c)     does not provide “informational materials that accurately describe, and promote compliance with, the laws of the relating to copyright” to all users of its system, i.e., it does not meet the condition laid down in subparagraph (C) of the above provision.

The question: Is Professor Post “a person other than the institution” for “the purposes of subsections (a) and (b) of this section” (whatever subsections (a) and (b) might be)?

The answer is “No.”Why?Because “for the purposes of subsections (a) and (b) of this section” Prof. Post “shall be considered to be a person other than the institution” only if the conditions in sub-paragraphs (A), (B), and (C) are satisfied.Because the condition in sub-paragraph (C) is not satisfied, Prof. Post shall not be considered to be a person other than the institution.[If you don’t see that, re-read the section over until you do].

Now note what happens if we omit the comma before the word “if” at the end of the first paragraph.The section now reads as follows:

“(e)When a public or other nonprofit institution of higher education is a service provider, and when a faculty member or graduate student who is an employee of such institution is performing a teaching or research function, for the purposes of subsections (a) and (b) of this section such faculty member or graduate student shall be considered to be a person other than the institution, and for the purposes of subsections (c) and (d) such faculty member's or graduate student's knowledge or awareness of his or her infringing activities shall not be attributed to the institution if ‑‑

(A) such faculty member's or graduate student's infringing activities do not involve the provision of online access to instructional materials that are or were required or recommended, within the preceding 3‑year period, for a course taught at the institution by such faculty member or graduate student;

(B) the institution has not, within the preceding 3‑year period, received more than two notifications described in subsection (c)(3) of claimed infringement by such faculty member or graduate student, and such notifications of claimed infringement were not actionable under subsection (f); and

(C) the institution provides to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the relating to copyright.”

The answer to the question presented is now “Yes.”Removing the comma completely changes the meaning of the subsection.Without the comma, for “the purposes of subsections (a) and (b) of this section” Prof. Post “shall be considered a person other than the institution” – full stop.The conditions in sub-paragraphs (A), (B), and (C) apply only to determining whether the faculty member will be considered to be a person other than the institution for purposes of subparagraphs (c) and (d). (If you don’t see that, read the section over again – possibly aloud – until you do).

Section 512(e) is much less beautiful than “Stopping by the Woods on a Snowy Evening.”The moral of the story, however, is that in legal prose, as in poetry, everything you put down on the page matters – every word, every punctuation mark, everything.If you don’t start cultivating that attitude towards your own writing, you will never learn to write well.

PART TWO:critical rules of thumb – follow these or die!!

1.Write your Introduction LAST.Your paper will, basically, consist of three parts: an Introduction, an Argument, and a Conclusion – in that order.It would, obviously, be silly to begin writing your Conclusion first, before you know exactly what you are going to say.It is equally silly to write your Introduction first.You must know where your argument is going in order to write a decent Introduction, because the function of the Introduction is to tell the reader what’s coming.Once you know what your argument is going to be, it is very easy to write an Introduction; before you know what your argument is going to be, it is virtually impossible to do so.

2.Use topic sentences.Each paragraph in your paper should make one point, and each paragraph should begin with a declarative sentence stating that point.These “topic sentences” are enormously important.Read your paper over, frequently, as I am going to:reading only the first sentence in each paragraph. Ask yourself:If you knew nothing about this subject matter, would this reading of the paper, topic sentence by topic sentence with nothing else, have made sense to you?If the answer is “no,” you’re not finished revising.

3.      Eliminate the passive voice from your papers.

Do not say “As the Internet grew, new commercial uses were found,” say “As the Internet grew, users found new commercial uses.”

Do not say “The 5-step test for determining likelihood of confusion under the Lanham Act was crafted by the court”; tell the reader who crafted it (“The Eighth Circuit crafted the 5-step test for determining likelihood of confusion under the Lanham Act”).

Do not say “Where there is no general jurisdiction, the possibility of specific jurisdiction must be examined,” say “Where there is no general jurisdiction, the court must examine the possibility of specific jurisdiction.”

Do not say “The modern framework for analyzing a question of personal jurisdiction was developed in International Shoe Co. v. Washington, 326 U.S. 310 (1945), say “The Supreme Court developed the modern framework for analyzing questions of personal jurisdiction in International Shoe Co. v. Washington, 326 U.S. 310 (1945).”

Always write so that the reader can tell who the actor is who is performing the action described in your sentences.

You may, if you wish, treat this as just another arbitrary grammatical rule to be followed by rote – like “don’t end a sentence with a preposition,” or “don’t split infinitives.”In other words:Just do it.

It is, however, not an arbitrary rule at all; rewriting your sentences to eliminate uses of the passive voice will help you think.Here’s an example from a draft paper I received a while ago:

“Despite the radio broadcasters’ argument that they made little profit on broadcasts, ASCAP was authorized to demand payment for the broadcast of copyrighted works.”

Interesting – but who “authorized” ASCAP to do that?Congress?Where?In a statute?What statute?Or was it a court?Some administrative agency?The City Council?As it turns out, that’s a very difficult, and a very interesting and important, question.I would wager that the author of this sentence didn’t know the answer, and s/he was hiding behind the passive voice to obscure that lack of knowledge.

We all do this, all the time, and we shouldn’t; eliminating the passive voice from our writing will help us avoid it.

4.Quote first; explain later.The actual words used in the statutes or the opinions under discussion always matter.Do not tell me what you think a statutory section means until you have given me the actual language in the statute; do not tell me what you think a court meant until you first tell me what it said.If the statutory language (or court’s opinion) is clear, then it’s clear and nothing more need be said.If it needs explanation and interpretation (as it almost always does), explain and interpret – after you tell me what the words are that you are explaining and interpreting.I don’t want to know your opinion about the statute or the case – I want to know (a) what it says, and (b) what it means.

5.Do not thump on the table.Do not ever say “It is clear that . . . .,” or “it is obvious that.”Do not use the words “clearly,” or “obviously,” or “undoubtedly,” as in “the statute clearly authorizes . . . .,” or “the Feist opinion obviously changes copyright law in important ways.”If it is clear, or obvious, or free from doubt, then there if no need to say that – the reader will already see it because you have made it clear.Ninety-nine times out of 100, you use these words or phrases as crutches, to obscure the fact that you have not made something clear, or obvious, when you should have.

6.Use parallel structure. If you are talking about general and specific jurisdiction, and one paragraph begins, “In order for there to be general jurisdiction, the defendant must have . . . .,”then begin the next paragraph about the parallel topic (specific jurisdiction) the same way:“In order for there to be specific jurisdiction, the defendant must have . . .”Make it simple.

7.Avoid unnecessary introductory and transition words.Words or phrases like “Moreover,” “In addition,” “Furthermore,” “As such,” “Notwithstanding,” are sometimes useful, but rarely; most of the time they get people into trouble.They tend to be inserted when the logical transition between your sentences makes no sense; if you have two sentences that do not belong together, throwing in an “In addition” at the beginning of the second sentence will not help.Use these devices very sparingly.

8.Watch out for “as explained below” and “as explained above.”These are signals that your work is not yet properly organized.What is a reader supposed to do when he/she encounters “as explained below” in a paper?Stop reading and go “below” to wherever you explain what needs to be explained?If something needs to be explained now, explain it now.Always remember: readers read from left to right; do not make the reader’s understanding of something depend on something that you say later.

9.Read your work aloud.Writing, Lawrence Sterne wrote (in his novel Tristram Shandy), is conversation.He was correct.If your paper, or outline, or memo, or letter, or brief, or . . . does not make any sense to a listener, chances are very good that it won’t make any sense to a reader.At the very least, ask someone who knows nothing about your topic to read through what you have written; if your friend/spouse/partner/cousin can’t make heads or tails out of what you’ve written, chances are very good that I won’t be able to either.

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