Academic Legal Writing - Eugene Volokh [22]
J. If You Must Write a Case Note
As I mentioned on p. 35, I don't recommend case notes. Some journals, though, require you to write case notes, or give you an extra opportunity to publish if you're writing a case note. How can you make your case note as valuable and impressive as possible?
Remember that you still need a claim, and you need it to be novel, nonobvious, useful, and sound. For a case note, though, the claim can be a set of separate claims related to the case, for instance, “The majority opinion misconstrued these precedents in these ways, and the rule the court should have adopted is this-and-such, and the opinion leaves open these questions that should be answered in these ways.” For a traditional article, it's often better to have one big claim than several little ones; but in a case note, the rules are different.
Here are several kinds of claims that often work well:
1. Most obviously, internal criticisms of the majority opinion—that it (i) misinterprets or misapplies precedents, (ii) misinterprets the statutory or constitutional text, (iii) makes an unjustified logical leap, (iv) fails to respond to certain counterarguments, and so on. You need not criticize the majority's result; you might, for instance, argue that the majority reached the right result, but for the wrong reason. But you should probably disagree in some measure with the majority's reasoning, or else it will look like you aren't adding much value beyond what the majority said.
2. Criticisms that point to the bad results that the majority opinion may lead to. For this, you might want to create a test suite (see Part II) for the majority's proposed rule, and see which cases expose weaknesses in the majority result.
3. Criticisms of the vagueness or uncertainty of the majority's rule. Again, the test suite may be helpful here.
4. Criticisms of the concurring and dissenting opinions. You don't just want to limit yourself to this; but neither do you just want to criticize the majority, because then readers might wonder whether the other opinions might have made all the good points before you did.
5. Proposals for a better rule than that offered by any of the opinions.
6. If a case doesn't explicitly announce a rule, or announces a very vague one, syntheses of a clear rule from this case and previous cases, supplemented with your own suggestions.
7. Explanations of the unresolved questions left by the majority opinion, and proposals for resolving them.
8. Explanations of the unresolved questions created by the majority opinion, and proposals for resolving them.
II. TEST SUITES: MAKING PRESCRIPTIVE CLAIMS MORE SOUND
A. What a Test Suite Is
When you're making a prescriptive proposal (whether it's a new statute, an interpretation of a statute, a constitutional rule, a common-law rule, a regulation, or an enforcement guideline), it's often easy to get tunnel vision: You focus on the one situation that prompted you to write the piece—usually a situation about which you feel deeply—and ignore other scenarios to which your proposal might apply. And this can lead you to make proposals that, on closer examination, prove to be unsound.
For instance, say you're outraged by the government's funding childbirths but not abortions. You might therefore propose a new rule that “if the government funds the decision not to exercise of a constitutional right, then the government must also fund the exercise of the right”; or you might simply propose that “if the government funds childbirth, it must fund abortions,” and give the more general claim as a justification. But you might not think about the consequences of this general claim—when the government funds