For the most part law dissertations that students at UCU write are scholarly papers in the nature of the law review article. They are typically not the product of field work. Instead they are the product of analytical reasoning applied to book research. As advice from the American book Scholarly Writing for Law Students by Elizabeth Fajans & Mary R. Falk is quite apropos. On page four the authors offer simple guidelines for good scholarly writing:
“Successful scholarly writing is first of all original, in that it says something about the law, no matter how modest, that has not been said before. Second, a good scholarly piece is comprehensive----it provides sufficient background material to enable any law-school-educated person to understand it and evaluate the writer’s thesis. In this sense, legal scholarship always takes the reader from the known (background) to the unknown (the writer’s analysis). Further, any strictly factual or descriptive material must be meticulously correct, and the writer’s analysis must be logical: well and sufficiently reasoned and divided into mutually exclusive, yet related, sections. Finally, a good scholarly paper is clear and readable, written in a somewhat formal style that avoids both the pompous and the colloquial.”
From Scholarly Writing for Law Students, 3d. Ed. (2000) by Elizabeth Fajans & Mary R. Falk p 4-5.
Per Farans and Falk there are certain types of archetypal scholarly comment papers that people regularly write. These are:
1. The “Case-Cruncher”: Per Farans and Falk “this is the type of article that analyses case law in an area that is confused, in conflict or in transition. Doctrine is antiquated or incoherent and needs to be reshaped. Often the author resolves the conflict or problem by reference to policy, offering a solution that best advances the goals of equity, efficiency and so forth.”
2. The Law Reform Article: This is a very common form of scholarly legal writing in the Ugandan context. These articles typically argue that a legal rule or institution “is bad----has evil consequences, is inequitable or unfair. The writer shows how to change the rule to avoid these problems.”
3. The Legislative Note: This is where an author analyses proposed or recently enacted legislation, often section by section, offering comments, criticism, and sometimes suggestions for improvement.
4. The Interdisciplinary Article: Here the author “shows insights from another field such as psychology, economic or sociology, can enable the law to better deal with some recurring problem.....”
5. The Theory-Fitting Article: “The author examines developments in an area of law and finds in them the seeds of a new legal theory . . . ”
6. Practical Treatments of the Profession and Its Institutions: “These are discussions of the legal profession, legal language, legal argument or legal education . . .”
7. Bookish Dialogues in a Pre-existing Debates: This is a type of article that you rarely see in the context of Ugandan law dissertations. They are typically written by members of the academy in response to papers written by other members of the academy. They are quite common in the context of jurisprudence where individuals ofter become associated with their ideas.
8. Pieces on Legal History: Here an author can explore the origins and development of a legal rule to shed light on its current operation and shortcomings.
9. Comparative Law Articles: Here authors look to see if there are other legal systems from whom we can learn from and it by looking at the diversity in legal practice among other legal systems we might be able to gain critical perspective when considering our own laws.
10. The Case Note: Typically the treatment of a single judicial opinion is not adequate fodder for a full dissertation. However, certain landmark cases are worth treating on the large scale of a dissertation.
11. Empirical: These are research papers that are based on data. The are build on research conducted in the field or through other means that produce objective data. In the dissertation you share what you have learned from the research you have conducted. Professor Delgado considers this form of legal scholarship as “in some ways, the most useful of all, if one can manage the logistical problems it presents, because it enables the writer to expand knowledge beyond mere armchair confines limiting most legal writing.” Methodologically the empirical method often involves similar methodologies and issues as you find in social science research. So here the research design and ethical matters are especially important.
This list is not meant to be exhaustive but it should help you get a sense of where your own research project fits within the various standard archetypes.
The list should also help you to understand why legal scholarship is often quite different than the standard forms of research we find in other social sciences. This is why omnibus guidance on social science research formats are often poor fits for legal scholarship projects. We have designed the UCU Law Faculty’s Research Guide with this in mind.
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