Professor Emeritus Leora Harpaz
Western New England University School of Law
Guide to Writing a Student Law Review NoteFIRST DRAFT
The first draft is "first" in name only. The draft you submit should have been written and revised by you as extensively as time allows. You should make this first draft as complete as possible. The draft should contain an early version of the footnotes as well as the text of the note.
The time to start writing is now. There is no point in procrastinating. The sooner you start to write, the more time you will have for revising your note.
LENGTH. There is no rule on how many pages a first draft should contain. It can contain as few as 40 or as many as 80. This will depend on the complexity of the legal issue you must discuss and the volume of relevant materials you are required to present. The norm is usually between 45 and 60 double-spaced pages.
FORMAT. You should discuss with your Note Editor the kind of margins, right and left and top and bottom, that your Note Editor believes are appropriate for your draft. In addition, the pages of the draft should be numbered at the bottom of each page, the draft should be spell checked before being submitted, and the draft should be held together with a paper clip and not stapled. This last requirement makes it easier to photocopy the edited version of your note before it is returned to you. Copies of the edited versions of each draft are retained by your Note Editor for purposes of comparison to later drafts.
NOTE ORGANIZATION. The next few pages of this memorandum are an effort to walk you through the writing of your note section by section. You should also refer back to similar material on note organization presented in my memo on the outline of your note for an overview of note organization.
A. INTRODUCTION. The first part of the note is the introduction. It is not a numbered section but should simply be labeled “Introduction.” Do not spend a lot of time on the introduction. It will need to be revised each time you revise your note since it must be an accurate summary of the contents of your note. Since your note will be revised numerous times, the introduction will need to be changed just as often. Therefore, at this first draft stage, it makes little sense to invest too much effort in the introduction. In the case of a classic casenote, the introduction should begin by briefly describing your principal case and the issue raised by that case. In the case of an issue-focused note, it should begin by briefly describing the legal issue you intend to discuss and the varying views on that issue reflected in the case law you will be discussing. All introductions, whether for a classic casenote or an issue-focused note, should then briefly summarize the contents of each of the principal sections of the note. The section after the introduction is always labeled Section or Part I. Roman numerals are used to number the major sections.
B. DESCRIPTIVE SECTIONS. The first few sections of your note are descriptive in character. The descriptive sections contain background material which will be useful to the reader in understanding the description of your principal case(s). They also include a description of the principal cases(s) themselves. The background material may consist of legislative history, the history of a particular legal doctrine that is central to your topic or case law that has paved the way for the issue that is the focus of your principal cases(s).
To avoid being overwhelmed by the task of writing your note, I recommend dividing each section in your outline into numerous small writing projects. For each project, you should gather the research material in front of you, quickly read it again and then write an early draft of the project. You should remember to strive for clarity, simplicity of expression and logical progression from point to point. As I have reminded you before, keeping to a chronological order is a good general rule to follow. This is true whether you are describing a chain of events, the steps in a particular court's reasoning process or a series of judicial decisions.
1. LEGISLATIVE HISTORY. If your topic focuses on the correct interpretation of a statutory provision, the reader of your note will need some background information about the statute in order to understand the particular issue that has arisen in the case or cases that you will be discussing. This task requires that you research the legislative history of the statute including material available from original sources such as committee reports and floor debates. You should also look for law review articles that have reviewed that same history to check on the accuracy and completeness of your own research and to include in footnote references.
In presenting this material to the reader, you might start with some general information about the history of the statute and the purpose for its enactment. This might include some discussion of earlier versions of the statute or proposed versions that failed to be adopted. For easy comprehensibility, a chronological presentation of legislative history is usually required. In addition, your background section may briefly describe the key sections of the statute as finally adopted so that the reader can understand where the statutory provision you will focus on fits into the general statutory scheme.
2. JUDICIAL OPINIONS. In describing the reasoning of a particular judicial opinion, the amount of detail you offer will vary with the importance of the case to your note.
a. CLASSIC CASENOTE. When you write a classic casenote, your discussion of your principal case must be very thorough. It should begin with a description of the facts of the case. It should go on to trace the early procedural history of the case. If there is a lower court opinion it should briefly and accurately summarize that opinion. Your description of the principal opinion should be quite detailed. However, if the opinion discusses issues other than the issue that is the focus of your note, you should give those issues short shrift. Footnote treatment may be appropriate for issues unrelated to the issue you address in your note. As to the court's description of its reasoning on the principal issue, your description should be a fair summary of the arguments presented by the court. It is not necessary, however, to describe all of the authorities relied on by the court to support those arguments. The points made should be presented to the reader in the same order in which they occur in the opinion itself. After describing the majority opinion, you should go on to present the reasoning in any concurring or dissenting opinions as well. Once again, your focus should be on aspects of those opinions that relate to the issue that is the focus of your note.
b. ISSUE-FOCUSED NOTE. As described in the handout on outlining, the principal cases in an issue-focused note must be presented to the reader in a logical way. A number of organizations are possible and your task is to decide which is more appropriate in the context of your note. If the number of cases you need to consider is relatively few and they are evenly divided between two contrasting outcomes, simply dividing the cases by outcome into two major sections and then describing the cases by chronological order within each of those two sections will probably work well. Other possible organizations will be more appropriate in other situations. In general, your objective is to present the cases in a way that makes it easy for the reader to follow the material you are presenting.
Whatever organization you follow, in contrast to a classic casenote, less detail about any individual case will be presented in an issue-focused note. You will not be focusing on every aspect of the case, but only on those aspects of a decision that are relevant to the issue that is the focus of your note. You should also be conscious of the need to balance clarity with the avoidance of redundancy. If a second case simply parrots the reasoning of a case you have already discussed in detail, you may describe the fact that the two cases are quite similar in their analysis without any need to provide the same detailed summary of the second case.
C. INDEPENDENT LEGAL ANALYSIS. In the first draft, you can, with the permission of your Note Editor, only produce a complete draft of the descriptive sections of your note and a partial draft of the analytic sections of your note. However, I am including a description of all of the sections of your note in this description. My own view is that all sections of the note should at least be attempted in the first draft even though it is likely that the version of the analytic sections that you include at this early stage of the note writing process will be so altered in later versions as to be unrecognizable.
As described in my memos on outlining and note organization, the descriptive sections of your note are followed by material and arguments that advance your viewpoint about the issue your note addresses. This analytic material can take numerous different forms, but its general goal is to shed further light on the legal issue that is the focus of your note and advance your point of view of the proper resolution of that issue. It may reconsider a point made in one of your principal cases and present an independent analysis of that point which suggests a different conclusion. It may introduce new material, material not considered by the courts that have previously ruled on that legal issue. The possibilities are endless.
The one essential characteristic for the analytic section of a note is that it should go beyond the arguments presented in the judicial opinions that address the issue. If all that the independent analysis does is to rehash what has already been said about the issue you address, there would be little point to your efforts. A reader would reach no greater understanding of the issue from reading your note than could be achieved by reading the case law in the area. Your note must justify the pages it occupies in the law review by adding something new to the reader’s understanding of the issue you discuss.
Once you complete writing the descriptive sections of your note, you should sit back, read your draft, read your outline and rethink your analytic sections to make sure the approach you intend to take still makes sense to you. By the time you write the first draft of your note, you will know a lot more about your topic than you did when you handed in your outline. You should then, based on your current state of knowledge, prepare a new and more detailed outline of your last section(s). It should not be a stream of consciousness presentation of random thoughts about the topic, it should follow the same kind of logical progression of points that is true of the earlier sections of your note. Having prepared an updated outline of your last sections, you should go about the writing process in the same way as you drafted the earlier sections of your note.
Remember, however, whatever the substance of your analysis, the style is quite different from advocacy writing. While your note advances a particular viewpoint, your job is to present all sides of the analytic material that is the focus of your note, both the arguments that promote your viewpoint and those that undermine it. Only by a thorough consideration of the issue that you raise, one that includes fair treatment of alternative positions, will you be fulfilling the role of the legal scholar.
D. CONCLUSION. You should end your note with a very brief conclusion. Like the introduction, the conclusion is not a numbered section. The conclusion parallels the introduction in that it summarizes the major points made in your article. However, the focus is more on the bottom line end of the article conclusions you have reached than on the early organizational structure. Your conclusion is only a summary of what you have said earlier in your note. It should not introduce any new information or ideas.
FOOTNOTE NUMBERS. Traditionally, footnote numbers in the text of law review articles have been referred to as footnote calls. A footnote number or call can be inserted in a number of different places in the text of your note. A typical footnote will follow a sentence in your text and contain a reference that is relevant to the entire sentence. The footnote call always follows the period at the end of the sentence without any space between the period and the call. Sometimes, however, a footnote call will follow a part of a sentence separated from the rest of the sentence by a comma. If the footnote is relevant only to that part of the sentence and not to the entire sentence, the footnote number should follow the comma. A typical example is a citation to a case. Suppose the textual sentence states: "In the case of Smith v. Jones, the court for the first time directly confronted the issue of the scope of its supervisory power." A footnote should include a citation for the case of Smith v. Jones and the footnote number should follow the comma after the case name. Occasionally, footnote calls will be used within a sentence following a particular word in that sentence. This will be done when the footnote is relevant to that particular word and not to the sentence in its entirety. One example of a footnote call following a particular word in the text is if the footnote contains a definition of that word.
FIRST DRAFT FOOTNOTES. The descriptive sections of your note will be able to be footnoted, at least preliminarily, as you write your draft. You will have before you the relevant research materials and whenever you refer to particular material in writing your draft, that material should be footnoted. For example, as you describe the reasoning of a case, you will be able to cite to the page in the case on which that reasoning occurs. It would be uneconomical in the extreme if you were to fail to use these source materials to draft supporting footnotes. The consequence would be the need to retrieve all your source material and retrace your thought process at some later time in order to credit the sources on which you rely.
While the first draft of footnotes in the descriptive sections of your note can be fairly complete, this will not be the case for those sections of your note that contain independent legal analysis. The footnotes in your legal analysis sections will be less fully formed because you are still working through the reasoning process and identifying sources of support, a process that will continue for many drafts to come. If, as you write, you realize you have made a statement that requires support and you do not currently have any supporting authority, you should not stop your writing in order to conduct a search for supporting authority. Just as a failure to credit sources you already have would be inefficient, so too would disrupting your train of thought in the writing process in order to hunt for additional authorities. In order to keep track of the fact that a footnote reference is needed in support of a textual statement, my own way of handling this situation is to create a footnote but include as its text only the fact that I need to find a source to support the textual statement.
NON-FINAL CITATIONS. You should be particularly alert to the need to keep detailed records of materials that you use from other than final sources. Examples of this problem include a recent United States Supreme Court case that is available only in the Supreme Court Reporter and not yet in the United States Reports and a recent federal court of appeals case that is available in the LEXIS or Westlaw database but is not yet available in the Federal Reporter. Citations to particular pages from these sources are only temporary. Eventually the official source will be available and your page references will need to be converted to reflect the pages in the official source. To accomplish this, you should keep a copy of the specific language you intend to reference in a particular footnote. That way it will be easy to find the same language later in the official version without reading the entire case all over again to attempt to retrace your thought process.
Another form of non-final citations are references to online material such as content found on a website. Since the content of the site can change at any point, you should print screen shots of the information that you wish to bring to the reader’s attention. That way, at a later point in your writing process, you can check to make sure that the material you wanted to reference still appears on the website.
QUOTATIONS. You should make sure that you do not excessively rely on quotations in your note. You should only use a quotation when you are describing a particularly important point or when the original source uses language that is so unique that you believe the reader should have the benefit of that exact language. All quotations of less than 50 words should be carefully enclosed in quotation marks. If an entire sentence is being quoted, the final quotation mark should follow the period at the end of the sentence. The end of the quotation should be followed by a footnote containing a citation to the appropriate page reference. All quotations of 50 words or more should be indented and no quotation marks should be used since the indentation takes the place of the quotation marks. A footnote identifying the source of the quotation should follow the punctuation at the end of the quotation.
In your writing, it is important to be clear about the difference between a quotation from a source and a paraphrase from that source. Changing one word in the middle of a sentence does not transform a quotation into a paraphrase. Technically, in this situation it would appropriate to enclose the phrase preceding the new word and the one following it in quotation marks leaving only the new word without quotation marks. Therefore, paraphrasing a point requires that you use substantially different language to make the same point. Obviously, you need not change every word since some words will have no reasonable equivalent. All paraphrases should be footnoted with a reference to the page on which the point is made in the original source.
LAW REVIEW LITERARY CONVENTIONS. There are a number of important conventions that apply to the use of language in a law review article. Some of these conventions are contained in the Bluebook and therefore as you familiarize yourself with this book, you will be learning not only footnote form but also some rules that apply to the text of your note as well. For example, there are important rules on capitalization that are contained in the Bluebook. These rules govern the way that you should refer to courts and judges. Since much of the likely content of a student note is a discussion of particular judicial opinions, familiarity with these conventions is essential. These rules require that references to a judge or a court that is an informal reference such as speaking of the "court of appeals" or the "judge" or the "state supreme court" do not require capital letters. By contrast, formal references to the full name of a court do require capital letters as in the phrases "Court of Appeals for the First Circuit," "Judge Oakes," and the "Connecticut Supreme Court." Two exceptions are an informal reference to the United States Supreme Court which is referred to as "the Court" and a reference to any particular federal circuit such as the "Ninth Circuit."
VERB TENSE. Other conventions are not so easily discovered by reference to the Bluebook. Two deserve particular mention. First there is the problem of what tense is appropriate in your law review writing. Generally, the rule is that in speaking of the reasoning of a specific judicial opinion, it is appropriate to use the past tense. It is correct to say that the court ruled, the court reasoned, the court concluded, the court argued and the court held. By contrast, in your personal commentary about cases and legal reasoning, you should use the present tense. You should say that "these cases reflect a tendency on the part of courts," "this reasoning suggests," and "a proper analysis should consider."
TONE. A second convention relates to the proper tone of a piece of student law review writing. Law review writing is very different from the style of writing sometimes used in advocacy writing such as briefs. The tone should be respectful of the opinions of others. It is occasionally true that lead articles do use strong language criticizing judicial opinions or the writings of other scholars. I am not here going to debate the propriety of the use of such a tone in the writings of faculty members. However, as students, without previous scholarly credentials, you are not entitled to take the same liberties. Your tone should be respectful even if the substance of your comments are critical. Instead of saying "the judge foolishly concluded," you might say "the court mistakenly concluded." The difference between acting foolishly and mistakenly may seem like a small difference, but small differences in tone divide the gratuitous insult from the legitimate scholarly critique. Remember, student law review writing may influence judges who must make decisions in cases raising similar issues. A nasty tone may mean that your otherwise excellent legal arguments are ignored. In addition to concern over tone as a mark of good manners, it is also important to realize that attaching strong language to your critiques does not in any way strengthen them. Just because you claim a point you are making is irrefutable does not make it so. The strength of your arguments must come from their substance including the skill with which you develop your arguments, support your arguments with relevant authority, and respond to contradictory arguments. Strength does not come from artificially loading your article with polemics.
EDITING YOUR OWN NOTE. After completing your draft, you should read it through and mark it up, identifying language that is not accurate, sentences that run on, paragraphs that should be introduced with a better transition sentence and other easy to spot editing corrections. After making this round of corrections, you should print out a new copy of the note and repeat the editing process all over again. I believe three times through this process usually is adequate for a first draft.
SUBSTANTIVE ACCURACY. In early edits of your draft, there are several different aspects of your work that you should review. First, you should be concerned with the substantive accuracy of your work. No aspect of law review writing is more important. There are two different aspects of accuracy. One is the question of whether your descriptions of the work of others, be they judges writing judicial opinions or scholars writing law review articles, are accurate reflections of those works. You should review your descriptions against the original texts to make sure that you have been an accurate reporter. The second form of accuracy is the question of whether the words on the page accurately reflect the idea in your head. It is one thing to think something, it is something else to translate that thought into written words. Sometimes there may be a slip in the translation process so that you have not said what you intended to say. You should check your work to assure this second kind of accuracy.
CLARITY. In addition to accuracy, you should be concerned with clarity. Legal ideas are complex and the ability to be clear in your writing is essential to good communication with your readers. Many of your readers may have no expertise in the subject of your article. They are looking to your article as a basic primer in the area of the law and it should not disappoint because it lacks clarity of expression. To make your writing clear, it may be necessary to simplify it, at least in the first instance. If an idea is confusing when presented in a lengthy sentence, see whether you can divide the sentence into two shorter sentences. Using this technique, the reader is required only to absorb part of an idea in the first sentence. By the time the reader finishes the second sentence, the reader may have a greater understanding than if the same idea had been presented in one complex sentence. Moreover, in an early draft, it may be better to use relatively simple language to assure that you are saying exactly what you intend. In a later draft, once you are certain of your substance, there will be plenty of time to get out your dictionary and your thesaurus and dress up your language to make the article somewhat more interesting in its writing style. Always remember that you should never, in any draft, use a word when you are uncertain about its meaning.