Professor Emeritus Leora Harpaz

Western New England University School of Law

THE TOPIC EVALUATION PROCESS

            In your search for a suitable topic, the law review requires that you thoroughly investigate two potential topics. These can be topics you have found or topics that have been selected by the editors of the review. No matter what the source of the topics, you must write a report that evaluates each of the two topics and compares the strengths and weaknesses of the two topics to select a topic for your note. I have divided the work on this report, called a Topic Comparison Report (TCR) into two parts. The first is the research process you should follow in evaluating each topic. The second is the drafting of the TCR. In this description I assume that the two topics you are comparing are both provided by the law review rather than selected by you. However, the process you need to follow is the same no matter what the source of the topics.

STEPS IN THE TOPIC COMPARISON REPORT (TCR) RESEARCH PROCESS

A. Topic # 1

            1.         Read the case(s) handed out in your TCR packet.

            2.         Read any prior reported decisions in your case(s). For example, an earlier district court opinion will often help you achieve a better understanding of the legal issue and the factual setting in which it arose. A similar situation may exist if you are reading an en banc decision by one of the federal circuits, one rendered by all of the judges in that circuit. In that case, a prior decision by a 3-judge panel, even though vacated by the en banc decision, may be extremely helpful background reading since it may include additional information about some aspect of the controversy.

            3.         Identify the issue in your case(s) that could be the subject of a student note. A student note must focus on a particular legal issue or several related issues. It should not merely summarize all the issues before the court, but must be selective in its emphasis and revolve around a particular legal dilemma. You are looking for an issue about which reasonable people could disagree. If the case you are evaluating raises only a single legal issue, you should have no difficulty with issue identification. If your case raises several issues, you are looking for the issue that raises a significant and ongoing legal controversy. This might be indicated in one of several ways: (1) several courts have reached different conclusions in cases involving the issue; (2) the majority and dissenting opinions in your case disagree about the issue; (3) the opinion identifies arguments on both sides of the issue by playing devil’s advocate; (4) your independent reading of the cases relied on as authority by the opinion in your case disagrees with the interpretation of those cases offered by the court; or (5) your reading of other related cases in the area reveals the possibility of a different approach to the issue. If your case raises several issues, you may need to research more than one in order to identify the “best”issue in your case.

            4.         Read any cases cited in your case(s) that are identified as germane to the issue that would be the focus of your note. These might include other cases involving the exact same issue or cases that involve related issues that have some important precedential value. It is often helpful to read these other cases in chronological order so that you can understand the evolution of judicial thinking about the issue over time.

            5.         Through conventional and computer research techniques, do an independent search for other cases raising your issue. If you have an issue that is truly an issue of first impression, you will not find other cases that raise your issue. On the other hand, in the case of a much litigated topic, you could have a long list of such cases. Do not limit yourself by jurisdiction. If you have a state case, look for cases in other states and in the federal courts as well. If you have a federal case, look for both federal and state cases that raise the issue.

            6.         Update all the cases that involve your legal issue by using sources such as KeyCite (Westlaw) and Shepard’s (Lexis). You are looking for both subsequent developments in your case(s) as well as other more recent cases involving the same or a similar legal issue. Finding all of the cases that discuss your issue is critical to an accurate evaluation of the potential of the topic.

            7.         Once you have identified all the cases you can on the issue you are considering, array them in chronological order and read them in that order. You should also array them by the position that they take so that you can read all the opinions (whether majority or dissent) that take a particular view of the issue and contrast them with the opinions taking a different view. This reading will help you to appreciate the nature of the controversy that surrounds the issue and the strengths of the contrasting positions that courts have taken.

            8.         Do a thorough search for secondary literature relevant to your topic. This includes law review articles (both lead articles and student notes about your issue in general or any of the cases that involve your issue) and other literature such as articles found in bar journals, continuing legal education publications and ALR annotations. It is important that this search cover as many publications as possible and be as up to the minute as existing research resources allow. You should use a combination of the law review databases of Westlaw and LEXIS, the Current Index to Legal Periodicals (CILP) (available in paper and on Westlaw), the Index to Legal Periodicals (ILP) (available in paper and on Westlaw), and the Legal Resource Index (available on Westlaw). While you will find the same publications numerous times by checking overlapping research sources, you will also assure yourself and your Note Editor that you have found all available literature. The primary purpose for this literature review at the topic evaluation stage is to determine whether a potential topic has been preempted because it is already the subject of existing scholarly writing. However, if you ultimately select a topic after such a review, your early search for related literature will be valuable to you in the note writing process. A resource for a thorough preemption review is Yale Law School Law Library's Preemption Checking available at https://library.law.yale.edu/preemption-checking. 

B. Topic # 2

            1.         Repeat all the same steps described for Topic # 1.

THE TOPIC COMPARISON REPORT

            After you complete your research on your two topics, you must prepare a Topic Comparison Report to hand in to your note editor. Your Note Editor will review your TCR to make sure that you have selected a worthwhile and workable topic for your note topic. The TCR should contain specific information so that your Note Editor will be able to assess the two topics you have considered. An outline of such a report is described below.

TOPIC COMPARISON REPORT (TCR) OUTLINE

A. Topic # 1

             1.        Statement of the Issue.

2.         Principal Case(s) - name(s) and citation(s). You should include all cases that raise the legal issue that is to be the subject of your note and divide them by outcome. If all the cases raising your issue reach the same result, you will have only one list. If the cases reach different conclusions, you will have two lists of cases. Introduce each list with a brief statement of the holding of the cases on the list. As you would in a citation, you should list these cases in reverse chronological order. If, for example, your topic is one in which the various federal circuits have reached different results, the lists you create will allow you and your Note Editor to see how many courts support each view, the date on which the circuit split first arose (this is identified by looking for the earliest case on each list; a circuit split is created when federal courts of appeals reach opposing views on the issue); and whether the results in the more recent cases still suggest an ongoing disagreement.

3.         Form of Note. Student law review notes typically take one of two forms: the classic casenote or the issue-focused note. A classic casenote is an article that focuses extensively on one recent case, presenting the reader with a thorough description of the facts of the case, a summary of the legal analysis presented in the opinion(s) in the case, and a critique of that analysis. It is appropriate when there is something unique about your case. An easy example of a situation where a classic casenote is ideal is if you are writing about the first judicial decision to consider a particular legal issue; what is referred to as an issue of first impression. Other appropriate situations might be if your case raises an issue that has been considered before, but raises it in a novel factual setting or if your case presents a novel legal theory not explored by any of the previous cases raising the issue. If there is more than a single case discussing the issue that your note would address, there is a strong presumption against writing a classic casenote.

An issue-focused note is an article that focuses on a group of cases that each raise the same legal issue. It presents the reader with an understanding of the factual context in which the issue arises, the various analytic approaches that courts have taken in the resolution of that issue, and a critique of those approaches. This form is used in a situation where, over time, a number of courts have ruled on a particular issue. In this situation, an individual case, even a very recent one, is part of the ongoing judicial dialogue on a particular issue and therefore usually should not be singled out. It is the collection of cases that matter as a group. A typical example of the proper use of an issue-focused note is if there is a split in the circuits. In such a situation, a number of different federal courts of appeals have ruled on the same issue and there is a difference of opinion among them as to how that issue should be resolved.

In rare cases, a student may be presented with a situation that is a hybrid of these two note forms. In this situation, two, and only two, federal courts of appeals have ruled on the same issue and reached different results. Both of the decisions are fairly recent ones. Under these circumstances, it would be wrong to single out one of the two cases to focus on in a classic casenote because the other is equally important. On the other hand, two cases are not a large enough group to write an issue-focused note. The solution is a hybrid form of note that compares and contrasts the two cases, focusing extensively on each and the disagreement between them.

In general, at the outset you should assume that your note should be in the form of an issue-focused note. You should depart from this approach only if you are absolutely convinced that this focus is inappropriate for your topic. One of the most common mistakes made by law review students is to classify their note erroneously as a classic casenote and focus extensively on one recent case instead of focusing on the issue raised by a group of cases, some decided much earlier in time. This generally will be the appropriate organization even if the decisions are not of equal precedential weight because some are decided by federal district courts and some by federal courts of appeals.

            4.         Facts of Principal Case(s) - a very brief description of the factual setting in which the legal issue arises. If the issue arises in more than one case, try and focus on the facts common to your group of cases and not the details of individual cases.

              5.       Legal Analysis - divide the legal analysis into two subparts. Each subpart should include a brief outline of the major legal arguments made by one of the two sides in the legal controversy. If your issue was resolved by only one court (a case of first impression) and the decision includes both a majority and dissent, one side of the argument will be found in the arguments of the majority and the other side in the arguments presented by the dissent. If your issue is discussed in more than one case, each side’s arguments may be an amalgamation of arguments culled from different decisions. Be sure and identify the source of each of the arguments you present including the name of the case and whether the argument is made in a majority, concurring or dissenting opinion.

            6.         Important Case Law other than Principal Cases - this can include Supreme Court precedent or earlier cases that set the stage for the current controversy. Include the name, citation, and a brief parenthetical description of the relevance of the case. This should include only cases central to the topic. For many topics, there will be no cases in this category because all of the central cases are listed in the principal case section.

            7.         Law Review Literature - include the name, citation, and a brief description of each article and the nature of the relationship between the article and the legal issue that you are evaluating as a possible note topic. Some hypothetical examples are presented below. Of the four examples, d presents a clear case for preemption. While the article described in d does not include a discussion of the most recent case, it explores all of the arguments on both sides of the issue and presents a convincing resolution. The articles described in examples a through c are not a basis for preempting the topic:

                        a.         General discussion of the statute, but with no attention to the provision that would be the focus of the note.

                        b.         Recent article that thoroughly explores the issue and all of the relevant cases including the most recent one. The article, however, does not go beyond describing the controversy thoroughly. It does not present any arguments or material beyond the cases themselves.

                        c.         Casenote about Smith v. Jones, 103 F.3d 119 (1st Cir. 1997). Smith was the first case to decide the issue. The note was published before the existence of a split in the circuits. It is principally a description of the case, and contains only a brief and incomplete analysis of the legal issue involved.

                        d.         Issue-focused note published in 2002. It describes all of the cases decided up to that point and presents a thorough analysis of each side of the legal controversy. While it was decided before the most recent case involving the issue, it addresses all of the arguments made by the court in that recent case. It also presents a convincing independent analysis of the correct resolution of the controversy.

8.         Evaluation of Topic. Analyze each of the relevant factors:

                        a.         Appropriateness of case law for the form of note contemplated. If your issue is one of first impression discussed in only one case and, therefore, you would be writing a classic casenote: is the case sharply focused on the issue, or does the case deal with a series of issues, some in greater depth than the issue you would be considering? Does the case present two sides of the legal controversy, or would you have to create the second side yourself? Is there a credible argument on the second side, even if the court has not presented it? If you are considering an issue-focused note because you have a group of cases involving the same issue: do the cases reach different conclusions about the issue, or do they at least rely on a different legal analysis to reach their conclusions? Is there a "true" controversy, or is there one renegade court that has reached a different result, but in reliance on legal reasoning that is not credible? Is the controversy ongoing so that recent cases have continued to disagree or were the only cases to take one of the two views decided when the issue first surfaced in the courts?

                        b.         Timing. Any issue that the U.S. Supreme Court has agreed to resolve by granting certiorari in one of your principal cases is inappropriate as a choice. In addition, if you would be writing a classic casenote and the decision you would write about has been vacated and a rehearing granted, the topic is not timely. These are clear examples of bad timing. Excellent timing occurs when certiorari has been denied in your principal cases or the time to file a cert petition has lapsed. More common, however, are situations where the timing factor is ambiguous. One common example is a case where a petition for certiorari is pending. Another is a situation where you would be writing an issue-focused note about a group of cases and one of your cases has been vacated and a rehearing granted, but there are other cases that present the two sides of the dispute.

                        c.         Preemption - relationship between existing legal literature and your topic. A range of possibilities exists extending from no literature on the topic, to literature that thoroughly and effectively discusses all arguments on both sides of the issue. Preemption can exist in two forms: direct preemption and indirect preemption. Direct preemption occurs when existing articles thoroughly explore the specific legal issue that would be the subject of your note. These articles will include a discussion of many of the same cases that you would need to discuss. In addition to describing the principal cases, these articles will thoroughly explore the different viewpoints that exist on the proper resolution of the controversy and present a convincing analysis identifying the better resolution. Indirect preemption occurs when existing articles thoroughly explore the same legal principles that lie at the heart of your note, even though those articles do not discuss the specific legal issue that would be the subject of your note. For example, imagine that a potential topic raised the issue of whether a bus station is a public forum for First Amendment purposes. Your research reveals no articles about the public forum status of bus stations. Therefore, there is no direct preemption. However, your research uncovers a large number of articles that thoroughly discuss the public forum issue in a variety of contexts. Those contexts include the issue of whether an airport is a public forum. You might conclude that indirect preemption of your topic exists because the legal analysis required to decide if a bus station is a public forum is strikingly similar to the legal analysis required to decide if an airport is a public forum.

                          d.       Interest - is there a local connection which makes it more interesting for the readers of our law review? All Massachusetts Supreme Judicial Court, Connecticut Supreme Court and First Circuit cases fall into this category. What is the interest of the general public in the legal issue - is it the stuff of newspaper headlines?

                          e.          Scope of the Legal Issue - is it a narrow issue of statutory interpretation involving an arcane federal statute or does it involve a broad inquiry into an issue of societal importance? The ideal topic for a student note would lie somewhere between these two extremes.

9.          Weigh the Various Factors. This weighing process involves considering both the pluses and minuses. The various factors listed in 8 (a) - (e) are listed in their order of importance. Appropriateness of case law is the most important factor, an essential precondition to a suitable topic. Preemption and timing are both important factors, but both are often difficult to evaluate. Obviously, a certiorari granted situation would lead you to reject a topic, but a certiorari pending situation is a difficulty to be weighed against other positive factors presented by a topic. You have no way of knowing whether the case will be accepted for review by the Supreme Court or not. In addition, if one of your cases is very recent, it is possible that a certiorari petition will be filed sometime during the next few months, even if one has not yet been filed. If there is no relevant law review literature, preemption is not a problem. However, if there is some literature, you must evaluate the quality of that literature in terms of the completeness of its analysis of both sides of the legal issue. The goal of a student note is to make a contribution to legal literature. An article does not make a contribution if it only repeats material already published elsewhere. The judgment you must make is in the form of an educated guess. Based on your research, you must attempt to predict whether there are aspects to the legal problem you are considering writing about that have not already been explored in the literature. Your "new contribution" need not be a major one. It is enough if you make a small contribution to the analysis of the problem. Interest and scope of issue are relatively minor issues. Student notes typically are about fairly narrow legal issues and not about broad social policy issues. These latter issues more appropriately are written about by outside authors with academic or practical experience in the field of their inquiry. A local factor in a recent case that has not yet been written about might offset some concerns about preemption.

B. Topic # 2

1.         Follow steps 1 through 9 detailed above in connection with Topic # 1.

C. Comparison of Topic # 1 and Topic # 2.

Compare the strengths and weaknesses of each of your two topics as identified in step # 9.

D. Recommendation.

Based on your analysis, the topic you would choose and the reasons for your choice.