Professor Leora Harpaz
Western New England College School of Law
Guide to Writing a Student Law Review Note
I. INTRODUCTION AND BACKGROUND SECTIONS
There are several fundamental principles of note organization. Each note begins with a brief introduction, describing the nature of the issue to be discussed and briefly summarizing the various sections in the note. The next section or several sections is devoted to background material that the reader needs to understand before the reader can be introduced to the principal cases. The background sections do not need to prepare the reader for the analysis section that follows the discussion of your principal cases. In a well organized note each section of the note needs to prepare the reader for the section that immediately follows so that at each stage of reading the note the reader has the background necessary to understand and evaluate the note.
One typical example of the content of a background section would be to provide a description of a piece of legislation that is the focus of your note. This section should include a description of the circumstances that led to the enactment of the legislation, a chronological description of the legislative history (were there a series of bills introduced and amendments offered that were considered before the final bill was passed?) (were there floor debates with the sponsors of the bill presenting their views of why the bill was needed?) and a description of the critical sections of the legislation as finally adopted.
Another typical form of background section is a discussion of a series of earlier cases, presented in chronological order, that, although they raise a somewhat different issue than your principal cases, form the case law background against which the issue you will discuss must be resolved. For example, suppose the issue that is the focus of your note arose as the result of a U.S. Supreme Court decision that resolved one issue, but did so in a way that created, but did not resolve, a second issue. It would be necessary for you to describe the Supreme Court’s opinion in that case before describing for the reader the recent lower court cases that have confronted the issue left unsolved by the Court. Thus a discussion of the Supreme Court decision would be part of your background section. It would not be part of your discussion of your principal cases because it does not resolve the specific issue that is the focus of your note.
II. PRINCIPAL CASE(S)
The section after the background section discusses your principal case(s). With a classic casenote that focuses on a single case you might begin with the facts of the case including the procedural history of the litigation, proceed to describe the majority opinion and finally the dissenting opinion. With an issue-focused note where the issue has been addressed by a number of different courts, you need to arrange your cases in some logical order. One possibility would be to separately present the cases supporting one view (in chronological order) followed by the cases supporting the other view (in chronological order). If there are more than two views, the cases would be divided into more than two sections. This organization works best if you have relatively few cases and therefore repetition is not a problem. Another possibility, if there is a Circuit split on your issue, is to organize your cases by Circuit. This might be appropriate if three or four Circuits have addressed the issue and some of the Circuits have discussed the issue in more than one case. In deciding in what order to present the various Circuit views, chronological order will usually help the reader to understand how those various views evolved. A third organization would depart from using the cases as the organizing principle. This might be used in a situation where there are many cases and they are similar in their reasoning. In this situation you might describe in one section the principal arguments presented to justify one outcome. In your discussion, you would use cases to illustrate the various kinds of arguments courts have used to support this particular legal conclusion. You would emphasize those cases that provide the most thorough discussion of a particular legal argument. A separate section would present arguments that justify the opposing outcome.
III. INDEPENDENT LEGAL ANALYSIS
Up until this point the content of your note has been descriptive and not argumentative or persuasive. Your goal has been to accurately and thoroughly describe legal materials. It has not been necessary for you to put your own spin on those materials. In fact, the reader would not be well served if you presented a slanted view of the judicial opinions that have considered your issue. You have been a reporter and not an editorial page writer.
By contrast, the next section(s) of the note are organized to help to advance your point of view. They present your independent legal analysis of the issue that is the focus of your note. Their organization, analytic content and conclusions are not dictated by a judge writing an opinion or a legislature drafting a statute. For the first time in your note, it is your way of thinking about the issue that matters. While the ideas of others, as found in judicial opinions, legislative history or scholarly articles, will be presented to advance your viewpoint, it is you who decide what arguments to advance and how to advance them.
The sections in which you present your independent legal analysis should begin with an introduction that describes and justifies the method of analysis you will be using in order to reach a greater understanding of the issue under discussion. The introduction should be followed a series of subsections that present the points you want to discuss in some logical progression. Your viewpoint should not be organized as a single section with a stream of consciousness rambling format. No general rules can be presented about how these subsections should be organized. Always keep in mind that clarity of presentation, logical ordering of material and avoidance of redundancy are your principal goals. Moreover, always keep in mind that a scholar must keep a skeptical attitude toward his or her conclusions. Be careful not to shortchange the difficulties of your issue or try to hide the flaws in your own viewpoint.
The note ends with a brief conclusion which is simply a summary of the legal issue considered by your note and the principal points made in the independent analysis section of your note. The conclusion should not introduce new material or make arguments that were not presented in the earlier sections of your note. The brief introduction and conclusion sections are like thin pieces of bread that are part of a sandwich. Everything in between forms the large substantial filling of that sandwich.