Professor Leora Harpaz
Western New England College School of Law
Guide to Writing a Student Law Review Note
OUTLINE OF STUDENT LAW REVIEW NOTE
l. Even if you did a substantial amount of preliminary research to select your note topic, the research phase of working on that topic begins all over again after you finally settle on a topic. Redoing research done to select your topic will either reassure you if you find only the same material you did the first time or expand the materials you have to work with if you find new sources. Rereading materials read at an earlier time will help you to reach a better understanding of those materials because a second read will help you to see things you missed the first time. You are also likely to approach your work this time with a slightly different attitude because this time you know the work you are doing is relevant to your topic, unlike the first time when you were uncertain which potential topic you would be writing about.
2. You should reread your principal case(s) and identify and read all cases cited in your principal case(s) that are relevant to the issue you will be focusing on. This includes any case relied on by a court to support its reasoning process.
3. You should once again search for other relevant cases through all available research techniques. Try several different ways of framing your Westlaw and/or Lexis searches. Remember that legal language is not always precise and two courts can discuss the same issue without using the same language. Obviously, if your case involves a particular statutory section, it is easier to be sure you have found all relevant case law than with other topics.
4. You should reread all the law review literature that you found during your earlier research and search the footnotes for other relevant source material that you did not notice before. Citations to relevant literature and cases are critical to a good student note so the pursuit of all relevant sources is key to developing a credible analysis as well as providing appropriate footnotes.
5. You should update all relevant source material by making sure to use KeyCite or Shepard’s for all your cases. This will inform you of subsequent developments in your core cases as well as identify other cases and law review articles that you need to read.
6. Assuming that you've now completed the research phase, at least temporarily, the next task is to categorize what you've found in order to: 1) once again decide what form your note should take and (2) determine how to organize the material within that form of note.
7. STATEMENT OF THE ISSUE. Your outline should begin with a statement of the legal issue that is the focus of your note. While you may have accurately stated the issue during the topic selection process, as you work toward an outline of your note you should reconsider every aspect of your topic. This includes the phrasing of the issue. Forcing yourself to precisely describe your topic is one of the ways you begin to think critically about your topic.
8. FORM OF THE NOTE. The next piece of information presented in the outline should be the form of the note: classic casenote or issue-focused note. Here again, you are not bound by your initial opinion. You should make every effort to style your note as an issue-focused note. A classic casenote that focuses on one judicial decision is appropriate only when there is something unique about the decision. A decision would merit classic casenote treatment if it resolved an issue of first impression or if it decided a previously litigated issue in a unique setting that altered the way in which the issue should be approached. Even if a state supreme court opinion resolves an issue of first impression before that court, a classic casenote that focuses on that decision may not be appropriate. Other states may have resolved a similar issue and, therefore, it may be appropriate to write an issue-focused note that focuses on the disputed legal issue and not on one particular court opinion. Whenever the issue that is the focus of your note has been analyzed in more than a single judicial opinion, there is a strong presumption in favor of writing an issue-focused note. Remember, don't make the form of the note decision hastily and don't try and artificially push your topic into a form that seems easier. The form of the note decision is important to the organization and focus of your note and an incorrect decision could result in major additional rewriting at a later phase. If you are uncertain about which form is appropriate, please consult your Note Editor.
9. VIEWPOINT OF THE NOTE. After identifying the form of the note, the next information presented in the outline is the viewpoint of your note. The viewpoint will be the claim or proposition that your note advances. Scholarly writing does not just describe the state of the law in the way that an ALR Annotation does. It does not merely summarize a series of judicial opinions that resolve a particular legal issue. Instead it advances a point of view that helps the reader to understand or analyze the issue the note considers. The note, in effect, attempts to convince the reader of the correctness of the proposition it is advancing. In this way, a law review article is similar to a brief that attempts to convince a judge to reach a particular decision.
Despite this similarity to brief writing, the persuasive techniques that make a work of scholarship effective are different from the techniques used in brief writing. First, it is important to understand that your only goal is not persuasion. Lawyers and judges, for example, may use your article to help them with their research of an issue or to efficiently understand the background of an issue. They may not care about the proposition your note advances at all. For this reason your note must provide thorough and accurate information about your topic. Second, the quality of your note will not be judged by its persuasiveness. It will be judged by the thoroughness of your engagement with the issue under discussion, both the arguments that advance your point of view as well as those that undermine your viewpoint. Your goal is to engage the reader in thinking about a legal issue. If you succeed in doing that, your note will be a success even if the reader does not agree with the viewpoint of your note. By contrast, if a reader agrees with your point of view, but does not believe that you have done a full and fair job of addressing the issue it discusses, your note will be a failure.
The type of claim you advance in your note is limited only by the constraints of legal argumentation and the creativity of your thought process. Your claim might be that the legal standard adopted by the court in your principal case is erroneous and that the issue should be resolved by the use of a different standard, one which your note describes, justifies, and applies to relevant fact situations. Another proposition that your note could advance is that particular statutory language should be narrowly construed in light of the text and legislative history of the language. Your selection of a viewpoint at this early stage of your work is only a tentative choice, subject to constant reconsideration as you learn more about the issue you are discussing.
The one constraint that I would advise in your choice of a theme for your note is that the claim you make should be useful in resolving the legal issue based on the current state of the law. In other words, don’t avoid providing a method to analyze the issue by suggesting the issue should be resolved by an amendment to a statute or by review by the United States Supreme Court. These kinds of propositions simply pass the buck and do not help the reader to think about the issue in a new way.
10. ORGANIZATION OF THE NOTE. The remainder of your outline presents the organization of your note, including major sections and as many minor subsections as you can identify at this early stage. Under each section or subsection, you should list the principal authorities you will be relying on within that section or subsection.
11. 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.
12. PRINCIPAL CASE(S). The section after the background section discusses your principal case(s). With a classic casenote 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, 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.
13. 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.
14. CONCLUSION. 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.
15. SOURCES. Having worked out an organization, the next phase of your outline is to organize the raw material of your research into the various sections of your note. Your outline should include not only the section headings, but a list of the sources that you will be relying on in each section.
16. NEUTRAL STANCE. While the outline assignment asks you to identify the viewpoint that you will advance in your note, you must do so tentatively, always keeping an open mind about your topic. The importance of maintaining a neutral stance toward your topic cannot be overemphasized. As you pursue your research, you should pay as much attention to arguments that undermine your preliminary view as you do to arguments that support your view. It is not unusual to change your mind several times about the best analysis of your topic before you complete your note. Whether you change your mind or not, keeping an open mind allows you to see the strengths and weaknesses of your viewpoint and present them both to the reader, thereby vastly improving the quality of your note.