Western New England University School of Law

THIRD DRAFT

Many of the techniques for improving your work product at this stage are the exact same techniques I described in my memo about second drafts, but now they should be done all over again. Please refer back to the memo on second drafts to refresh your recollection. In addition, the balance of this memo contains some further suggestions for improving your note.

ANALYSIS. Continue to work on your independent analysis to make sure it is more than a rehashing of the reasoning in your principal cases. You must go beyond the reasoning in the cases you discuss in order to make a contribution to the understanding of the legal issue your note discusses. Make sure you begin your analysis by explaining to the reader the nature of the inquiry you will undertake and the individual steps in that inquiry. The introduction to your analysis section should include a "roadmap" paragraph parallel to the organizational paragraph you included at the beginning of your note. In addition to a suitable organization that avoids redundancy and irrelevancy, make sure that each individual subsection of your analysis is sufficiently complete. Remember that law review articles don’t have the same objectives as briefs and other forms of advocacy writing. Try as hard to make the opposing argument as your own argument. It's the exploration of the genuine conflict between two or more opposing approaches that makes for a good note. This means being careful not to stack the deck by shortchanging the argument on the other side. The smart reader will realize that the note failed to consider opposing arguments and will therefore not find the note to be persuasive.

RESEARCH UPDATE. Continue to update your research frequently. While you may be focusing new research efforts on finding support for your analytic sections, don’t forget to update your basic research by searching for new cases on your issue, changes in the status of cases and recently published literature. As you better understand your topic and flesh out your analytic sections, you will be in a better position to search for and identify additional relevant sources. You may even recognize the relevance and importance of cases that you located earlier and that seemed irrelevant at the time.

SUPREME COURT CASES. There is a need to make sure that you are aware of all relevant recent Supreme Court cases. These include cases that are directly on point and cases that are relevant in some peripheral way to the topic of your note. It is important to include at least a footnote reference to any recent Supreme Court case that is at all relevant to the topic of your note. Remember, your principal cases may have been decided before the end of the last Supreme Court Term and therefore do not include citations to recently decided Supreme Court cases. In addition, you should make sure that you are aware of any cases on the Court's current docket that are at all relevant to your topic. In the past, some law review students were caught unaware when the Supreme Court issued an opinion with some relevance to their topic. Careful research of both the cases decided last Term and the issues before the Court this Term should avoid this problem.

SECTION HEADINGS. In the earlier versions of your note, you may have used generic section headings such as "Background" and "Analysis." It is now time to revise those headings so they reflect the specifics of your note. If your background sections contain the legislative history of a particular statute, the section heading should say so specifically. Similarly, the heading and subheadings that you use in your analysis should reflect the specifics of your analysis.

PARAGRAPH LENGTH. Review the lengths of all paragraphs in your note. You are looking for unreasonably long or short paragraphs. Overlong paragraphs can be subdivided and excessively short paragraphs can often be merged into the preceding or subsequent paragraph.

QUOTATIONS. Review your use of quotations. You should use quotations in the text of the article sparingly. They should not be a crutch or an excuse for laziness. If the article would not be adversely affected by your paraphrasing a point made in another source then you should do so. The presumption should be that you will not use a quotation. To overcome that presumption, there must be some affirmative reason so that the use of a quotation will improve the quality of the article. Two principal reasons justify the use of quotations. One is the situation where particular quoted language plays a central role in the analysis you will ultimately offer. This would include specific statutory language that is critical to an issue of statutory interpretation or is the focus of a constitutional challenge to a statute. It will also include a court's announcement of the standard of review it will use to govern the resolution of a particular dispute. Since such language plays a crucial role in the analytic process, it is important that the reader see the exact words used by the court to reveal each ambiguity and nuance. The second situation in which a quotation would be appropriate is where an author uses unique language to make a point more powerfully than you could or uses a particularly evocative phrase to capture an idea. In this situation, you would want the reader not only to understand the idea, but also to have the benefit of the unique expression of the idea.

By contrast to the sparing use of quotations in the text, there is no similar limitation on the use of quotations in footnotes. You may often paraphrase in the text and then provide the exact quotation in the accompanying footnote so that the reader who is interested in the specific language has that language available. Quotations may often be tools to enrich footnotes by providing a level of specificity that is appropriate in a footnote, but less so in the text.

TRANSITIONS. Look at all transitions in your note to make sure that you achieve maximum clarity. This includes major transitions between two sections of your note as well as minor transitions such as between two paragraphs. The major transition at the end of a section should summarize the critical points made in that section. The transition at the beginning of the next section should describe for the reader the subjects to be discussed in that section of the note, explaining the connection between the new material and the material previously discussed where that connection is not obvious. The minor transition between paragraphs should be clear enough so the reader understands the link between the new paragraph and the previous paragraph.

BLUEBOOK FORM. Work on the footnotes should continue. The footnotes should be checked to make sure they are now in proper Bluebook form. Be careful when you cite a string of cases that those cases are in the proper order (Bluebook Rule 1.4(d)). Be careful about spacing as for example in a citation to the Federal Supplement or the Supreme Court Reporter. The correct forms are "F. Supp." and "S. Ct." and not "F.Supp." and "S.Ct." (Bluebook Rule 6.1(a)). Remember to count the number of words in quotations to comply with Bluebook Rule 5.1(a). Continue to add to the substance of your footnotes to make them as informative as possible.

FOOTNOTE REDUNDANCY. Review your footnotes to eliminate excessive redundancy. This problem arises when you are summarizing a principal case for the reader. Since you are including a detailed synopsis of the facts and reasoning of the case, you theoretically could include a footnote at the end of each sentence and most of the time that footnote would consist entirely of "Id." Such extreme redundancy is not necessary. You must attempt to differentiate important points made in the text from less crucial ones. For example, if a paragraph of your note contains a description of the facts of the case, you would footnote an early sentence in that paragraph, listing the specific page in the case on which that fact is mentioned. However, if subsequent sentences in the paragraph contain additional facts mentioned on that same page, you would not need to separately footnote each additional sentence. By contrast, a footnote should be included when a fact referred to in the text appears on a different page, where the fact is critical because it plays a central role in the legal dispute, where the fact is a subject of controversy between the parties, or any time a footnote can provide additional information beyond a reference to the page on which the information is found. For example, if the dissent disagrees with the majority's factual characterization, you could describe the majority's version in the text, but footnote the dissent's different view of the matter. If the factual situation can be contrasted with the facts of another case you have already described, a footnote could refer to this point of contrast.

READ, REREAD AND READ AGAIN. Every time you read over your article you will find additional ways in which you can improve your article. You will catch mistakes you failed to notice in earlier readings, you will realize that a change in a word choice will more effectively communicate an idea, you will notice the awkward construction of a sentence, you will find a way to improve the transition between two sections of the your note, you will realize that the note will be improved by subdividing one long sentence into two shorter ones and myriad other ways to improve your manuscript. Because you will be able to find techniques to improve your work with every new reading, you need to reread your manuscript many times even after you believe it is complete.

HOW MANY DRAFTS ARE ENOUGH? This memo addresses the third draft, but the points that it makes apply to subsequent drafts as well. The concept of a “draft” is a fairly artificial one. One student could take their second draft, make some minor grammatical corrections and label it a third draft instead of a second draft. A second student could make major organizational changes to the second draft and completely change the viewpoint of their article several times before labeling it a third draft. My own use of the term draft means that your note has undergone substantial revisions since the last version in order to justify a new draft number. If the changes are very minor, it might be more accurate to continue to call it by the same draft number, but append a date or a version number to it to indicate some changes have been made. The number of drafts that a student note will need to undergo before its completion varies greatly. It depends on the complexity of the issue the note addresses, the number of editors and faculty members that read versions of the note and make suggestions for improvement, the requirements of the law review for the number of drafts that need to be submitted, and the author’s own internal standards that will cause some students to demand perfection of themselves and others to be more easily satisfied.

The instructions I have offered in this memo and the ones on earlier drafts are a description of the ways in which student law review writing can be improved so that it is of publishable quality. Your goal should be to do the best job you can of completing your student note. This means doing everything you can to make the note the best piece of analysis and writing you are capable of producing. To do this you need to work very hard, take seriously all of the constructive criticisms that you receive and attempt to make maximum use of them to improve the quality of your note rather than simply pay them lip service and, most important of all, be willing to be self-critical of your efforts so that you are always striving to improve your work at every stage of its development.

KNOW WHEN TO STOP. Just as some authors fail to review their note sufficient numbers of times, other authors are unwilling to give up working on their manuscripts. You have to know when to stop working on your note and allow it to be published. When your Note Editor or other members of the Editorial Board tell you that enough is enough, you have to be willing to relinquish work on your note and allow it to be published. This is difficult for some authors because every written product can always be improved so the concept of finishing is somewhat arbitrary. Also, ending the process of writing the note means that your note will be published and can be judged by others. Some authors fear this judgment and, therefore, want to delay publication. If you have worked diligently on your note and taken seriously the suggestions made by others who have read it, you should not fear this outside judgment.