Professor Leora Harpaz
Western New England College School of Law
Guide to Writing a Student Law Review Note
SELF-EDITING. You have now handed in the first draft of your note and are waiting for comments from your Note Editor. You may think this is a good opportunity to forget about your note for a few days because it’s now out of your hands, but I don’t recommend such neglect. The right time to begin work on your second draft is immediately after you turn in your first draft while its failings are still fresh in your mind. This means that you should not wait to begin your next set of revisions until your Note Editor returns a marked up copy of your first draft. There are many improvements that you can make without awaiting confirmation from your Note Editor that your first draft needs to be revised. Remember, while your Note Editor is there is assist you, it is really your own work and your own initiative that makes it possible to produce a publishable note. It is a mistake to start waiting for others to tell you what to do. This psychology is very self-defeating in the lengthy process of transforming a rough draft into a publishable student note.
INCOMPLETE SECTIONS. There are many ways to begin this process of improving your written product. One is to focus on sections of your note that did not get sufficient care and attention in your race to meet your first draft deadline. You are well aware of the particular sections in your note that fell victim to this time crunch. For many student authors, this means that their note is more complete in the early descriptive sections of the note than it is in the later analytic parts. Now is the time to devote extra attention to those neglected sections. If you did not include a rough draft of all of the analytic sections of your note in your first draft, this is the time to undertake a first draft of those missing sections. If you included an early version of those sections in your first draft, now is the time to flesh out some arguments that you only presented in skeletal form or do some additional research to find further support for some arguments that you did not adequately support in your first draft. It is very important that all the sections of your note move forward at the same rate. It is a mistake to have the early sections of your note in nearly finished form while the later sections lag way behind in their development. Therefore, additional work on sections that were neglected in the first draft will help you to assure that your article has this necessary evenness of development.
STYLISTIC POLISH. You should add a layer of stylistic polish to the note. Some of your writing in your first draft is bound to be unpolished. One of the best ways to improve your writing is gradually over time. The self-editing process depends on your ability to "listen" to the rhythm of your prose and identify places where your words create dissonance. This includes awkward constructions of sentences which force the reader to reread the sentence before fully comprehending its meaning, run-on sentences which contain too many ideas without a pause so that the reader cannot absorb their content, inaccurate use of language so that the sentence does not make sense to the reader, and many other writing problems. It also includes knowledge of basic grammar rules so that you can make sure that your text is not riddled with misplaced or missing commas, split infinitives, failures of parallel construction, and other elementary grammatical mistakes. If you have forgotten most of what you once knew about the rules of grammar, you should consult a basic text such as “The Elements of Style” by William Strunk Jr. and E. B. White. An online version of an early edition of “The Elements of Style” is available at http://bartleby.com/141/. There are other websites that help to avoid grammatical mistakes such as http://www.wsu.edu/~brians/errors/. A longer list of links to other online resources to assist with writing is available on the law library’s website at http://www1.law.wnec.edu/current/index.cfm?selection=doc.2582.
FREQUENT REREADING. One of my techniques for the gradual transformation of my writing from rough copy to finished product is to make sure that I quickly reread my entire draft each time I sit down to work on even one section. This way I am able to make small improvements gradually over time. It is surprising how quickly a series of small improvements in a manuscript becomes a major transformation of the entire product. The advantage of this kind of gradual editing is that you return to the manuscript many times and each time you bring fresh eyes and ears to the editing process instead of trying to do it all at one sitting.
RESEARCH EXPANSION AND UPDATE. Another area of work on your note is to expand and update your research. This will involve research into new areas of inquiry that have occurred to you since you wrote your first draft. It will also involve a search for recently decided cases or recently published law review articles or changes in the status of already discovered cases. Since most student law review topics are at the cutting edge of the law, it is quite common for additional material to surface as you proceed with the writing process. This new material may often add a rich new dimension to your article. Failure to discover new material as quickly as it becomes available will often require that you make major revisions at a later point in the writing process. For example, suppose your note was written on the assumption that the case that is the subject of your classic casenote is the only federal court of appeals case to consider a particular legal issue. Suppose further that you proceed from rough to finished product on that assumption. At some later stage of your work you finally discover that four months earlier a different federal appeals court decided the same issue reaching a contrary result. You will now have to revise your note to include this second case and it may be necessary to change the entire focus of the note to contrast the views of the two conflicting circuits. Think how much extra work you would have been spared if you had discovered that case four months earlier. This process of updating your research should take place at frequent intervals throughout the time that you are working on your note.
RETHINKING BASIC DECISIONS. Even before your Note Editor returns a marked up copy of your note, you should once again rethink many of your basic decisions to make sure they are more of a help to the development of your note than they are a hindrance. Is your decision to write a classic casenote still a correct one even though you now realize there are other cases that discuss your same legal issue? Is your decision to include a lengthy background section on earlier cases still a good one even though those cases are not discussed in your principal case and, therefore, are not necessary to a reader’s understanding of that case? It is never too late to make basic structural or organizational changes. Making the right changes will ease the burdens of producing a publishable note.
DEVELOPING YOUR ANALYSIS. The analytic part of your note is the most difficult. Unlike earlier sections of your note, it has no conventional organizational scheme. Moreover, in the descriptive sections of your note, diligence is rewarded. When you are asked to describe legislation and case law, thoroughness and accuracy in your research and writing will suffice. There is no need to hope for inspiration.
By contrast, the analytic part of your note depends on your ability to synthesize the descriptive material and invent a method for further exploration of the legal issue that is your note's focus. This further exploration should do more than is already done in the descriptive materials and it should do it with an attitude of intellectual skepticism. Your primary goal is not to discover the right solution to the legal issue even though your note may assert a viewpoint about the proper resolution of the issue you address. Instead, your goal should be to help the reader think about the issue in greater depth. This can mean thinking about it in a new way or further reflecting on the approach already taken in the case law. The hallmark of this exploration is to consider the many facets of the analytic approach you suggest including its strengths and weaknesses. Imagine your analytic approach as a diamond. Your analysis will hold it up to the light and twist and turn it in every direction looking at the play of light on the facets.
BE YOUR OWN HARSHEST CRITIC. In the self-editing process, you can develop your analysis through a variety of techniques. First, you can red pencil your analysis deliberately trying to point out flaws in everything you say. Your comments may include remarks such as: "You haven't explained why this would happen," "Isn't it possible to reach the opposite conclusion relying on this same chain of reasoning?," "You've stated an assumption, but you haven't backed it up with any authority," "Aren't you simply echoing the reasoning of the dissent in your principal case without saying anything new?," "This is stated as an abstraction, can you provide any examples?," and "You've recommended this definition, but you haven't applied it to particular sets of facts to see how it would work." Having harshly criticized your own work, you can now improve it by responding to each of your criticisms. For example, you can add explanations, authority, examples and applications, and point out that there is another way to look at things.
FIND ADDITIONAL SOURCES. In addition to looking at your analysis from a critical point of view, you can also improve your analysis by developing your source material. Where you have cited one case, find a second source of case law support. Where you've relied on one article, find a second article that agrees or one that disagrees to use as a "But see" reference.
AVOID OVERSIMPLIFICATION. Look at your work to make sure you haven't oversimplified the problem you're writing about or its possible solutions. If the cases consider two possible solutions, look for a possible third solution. If the case law principally relies on one line of cases, look for another line of cases that might be equally applicable.
FOOTNOTES. An important area of improvement in your note is additional work on your footnotes. Your first draft probably contains only very basic footnote information such as the citation of a case mentioned in the text or the page of a quote. With the second draft, the time has come to start developing a richer set of footnotes. Footnotes are a critical part of a student note. To understand the role they play, it is first necessary to understand the relationship between the text and the footnotes.
THE TEXT STANDS ALONE. The text of your note must be able to stand alone. This means that a reader must be able to understand the text without reading a single footnote. The text contains the major points of your article, but few of the details that add richness. One of the practical consequences of the separation of text and footnotes is that you should not provide information in a footnote which you later on assume knowledge of in your text. An example might be the name of a case. Suppose your early textual discussion contains a general reference to a decision without mentioning the name of the case. At the end of that sentence in your text, there will need to be a footnote. That footnote will provide the name and citation of the case as well as a brief parenthetical description of the factual setting and holding of the case. Suppose further that later on in your note you need to discuss the case in your text in more detail. In that later discussion, because the case name was included in a footnote but not in the text, you cannot assume that the reader has been told the name of the case. Instead you will have to introduce it as if for the first time in the text. A footnote after the case name will contain the citation of the case. In addition, you may wish to include a see supra reference to the earlier footnote mention of the case. In this circumstance, you may want to rethink your earlier decision not to mention the case name in the text. If the case will later be the subject of an extensive textual discussion, you may want to mention it by name in the text the first time it is introduced.
FOOTNOTE TYPES. The footnotes are a parallel universe to the themes developed in your text. Since the text provides the major points of your article, it is left to the footnotes to provide the details. These may take many different forms. A footnote may provide information about secondary authorities. For example, the text may refer to a major legal doctrine. A footnote may provide a list of law review articles that can be referred to for a full discussion of that doctrine. A footnote may provide details about the facts and holding of a case that is mentioned in the text, but which is not discussed in detail in the text because its specific facts are not germane to the textual discussion. A footnote may provide a counterpoint to a point made in the text. The text may assert a particular point of view. The footnote may then refer the reader to a source which takes a different view of the same issue. While the text makes clear what the article is about, a footnote may make clear what it is not about by explaining to the reader that certain subjects are beyond the scope of the article. While the text describe the reasoning of a major case, it will limit its discussion to issues raised in the case that are germane to the legal issue that is the focus of the student note. A footnote will inform the reader about other issues in the case and their resolution. The text may contain an assertion by the author in support of an argument. The footnote will provide authority for the assertion in case law, statutes or literature. Bald textual assertions in the form of the unsupported opinion of a student author are not of much value to a reader. It is the support offered for a proposition that makes it possible for a reader to rely on that argument in a brief or other legal document. These are but a small sample of the myriad uses of footnotes. You should not underestimate their importance. While law review articles in general and student articles in particular are not widely read, when they are read it is often to mine the resources in the footnotes for use in some written product such as a judicial opinion, a brief, or another law review article. If you fail to provide a rich assortment of relevant sources, your article will be much less useful to potential readers.
SECONDARY AUTHORITIES. While I have talked about the value of footnotes in general and mentioned as one example citations to secondary authorities, such authorities are important enough to receive special mention. You should cite secondary literature including books and law review literature whenever possible in your footnotes. A student article without any secondary literature is almost always inadequately footnoted. The reader of a student article wants to know how the article fits into the existing body of literature on the subject. Since student articles are often about fairly narrow legal issues of recent vintage, there may be no literature directly on point. In that case, the reader wants to know about literature that relates to the general subject of the article even if it does not discuss the specific issue under discussion. It is your job to integrate your article into the existing body of legal literature. To achieve this objective you need to show the reader all the points of connection between the subject of your article and what has already been written by others.
There are many different uses that can be made of secondary literature in a law review article. If the article describes the legislative history of a particular statute, the footnotes should refer to any other articles which detail aspects of that same history. If the text describes a particular case, the footnotes should refer to a sampling of articles or notes that concentrate on that case. If the text refers to a particular legal doctrine, the footnotes should include sources that would be good general reading for anyone wanting to receive a further education about that doctrine. If the text presents a particular argument, the footnotes should refer to any other scholarly writing which supports the same argument as well as writing which supports an opposing viewpoint.
THE SCHOLARSHIP HIERARCHY. In addition to the need to include scholarly literature in footnotes, there are situations in which it will be necessary for you to evaluate the status of that literature in the eyes of the scholarly community. This will be useful in situations where there is a plethora of literature and you only want to cite to several articles. You will want to select the “best” of the available articles for this purpose. A second situation in which some evaluation will be useful is if you intend to support your viewpoint by placing substantial reliance on one particular article. Before doing so, you will want to have some sense that such reliance will not weaken the credibility of your note. Third, if your viewpoint puts you at odds with the writings of a number of scholars, you may want to identify the most prominent authorities within that group of scholars and specifically discuss why you disagree with them.
Not all scholarly writing is created equal and the student author needs to be aware of the hierarchy that exists in the world of scholarship. While this hierarchical system may not be fair and good scholarship can exist outside its narrow confines, you should nevertheless be aware of these prejudices. There are several ways to identify law review writing that is on the high end of the status hierarchy. One way to judge validation in the eyes of the scholarly community is to observe the number of times a particular article is cited by other sources. If an article is cited frequently and favorably, you can feel comfortable relying on it as support for your viewpoint. Another way to judge an article is by the quality of the journal that publishes the article. If you need assistance in ranking the prestige of various journals, several published lists exist. All of those rankings place major law reviews such as Harvard, Yale, Chicago, Michigan, Columbia, and Stanford in the first tier. Another technique for evaluation is to learn something about the credentials of the author of a lead article. Some biographical information will be provided in the article itself in a unnumbered footnote after the author’s name. There is also an annual publication of the Association of American Law Schools entitled "Directory of Law Teachers" which contains biographical data about all law professors. This publication also may be useful if you are discussing a particular article at length and need to refer to its author by a gender specific pronoun. The Directory lists the gender of each faculty member it profiles and thus you can avoid an embarrassing error in pronoun usage. In the case of articles by student authors, frequency of citation and prestige of journal are the only available techniques to assess the prestige ranking of the student article. These techniques are not a substitute for your own appraisal of the quality of a particular article, but at a time in your career when you are still defining your own standard of scholarly excellence, they can be useful additions to your personal assessment.
CITATIONS TO YOUR OWN LAW REVIEW. In addition to a general need to cite to law review literature, you should make special efforts to cite both lead articles and student notes published in your own law review. Paying this courtesy to the review will help the review, the law school and you by raising awareness of the review in the legal community. Just as you may be able to cite to a relevant student note published in the review, at some later point another student author may pass along the favor and cite to your student note. It may be necessary to check the indexes to early volumes of the review to find relevant articles dating from early in the review’s history. This is because early volumes of the law review may not be included in the Westlaw and Lexis law review databases and articles from those early volumes cannot be easily located by researching from these sources. Citations to these earlier articles in a newly published student note may give these articles fresh life.
ARTICLES WRITTEN BY LAW SCHOOL FACULTY. Another category of law review article that deserves special mention is any article by a member of the law school faculty that is relevant to your topic. Your article will eventually end up in the hands of members of the faculty who have written in your area. You owe them the courtesy of citing their article if you expect them to take the time to read your work. Also if a faculty member has published an article that is relevant to the subject of your note and you did not discover the article in the course of your research, that fact places in question the thoroughness of your overall research. If you did not find such an article, there might be other germane material that you also did not find. The small additional time necessary to make sure you have found relevant articles written by faculty members will be repaid by the good will your effort will generate.