Advice on Writing a "Recent Development"
I used Prof. Eugene Volokh’s book, Academic Legal Writing, and found it extremely helpful for when I was writing my student note for Journal, and other assignments as well. The original note that I submitted, for which I received journal credit, will not be published. But I was asked to write another note, this one on a particular case. Such a note is called a “Recent Development,” or “Case Note.” My case was Campbell v. General Dynamics Gov’t Sys. Corp, 407 F.3d 546 (1st Cir. 2005).
In the 2005 version of Academic Legal Writing, Prof. Volokh says the following: “An article that describes a single case and then critiques it is likely to be fairly obvious, even if it’s novel and useful; and it generally doesn’t show off your skills at research and at tying together threads from different contexts” (p. 29) This is true.
Prof. Volokh describes in greater detail the difficulties involved in writing a case note on pages 31-32. He also suggests several ways that a law student can turn such a narrow assignment into something worthwhile. Any law student who is writing a “Recent Development” or “Case Note” should read this section.
Several of Prof. Volokh's suggestions are related to criticizing the opinion. These include “internal criticisms of the majority opinion” (such as that it “misinterprets or misapplies precedents,” “misinterprets the statutory or constitutional text,” etc.); “argu[ing] that the majority reached the right result, but for the wrong reason”; “[c]riticisms that point to the bad results that the majority opinion may lead to”; “[c]riticisms of the vagueness or uncertainty of the majority’s rule”; and “[c]riticisms of the concurring and dissenting opinions” (p. 32).
Unfortunately, in my case I found very little to criticize in the opinion, and the only concurrence was to express appreciation for how a certain precedent was applied. I think most readers of Campbell would agree with the court that a mass email sent out by a company to its employees, with a hyperlink that leads to an inconspicuous arbitration agreement, does not provide sufficient notice. (It’s more complicated than that, but my point right now is not an explanation of the case.)
When I wrote my Recent Development on Campbell, I specifically cited to several other Case Notes written by other law students. I am going to try to contact each one of these students, whether they are still in law school or have moved on. And I am going to ask them for their own advice based on writing a Case Note. How did they try to make their case note interesting? What were the limitations and benefits of writing on only one case? Do they believe it was a worthwhile experience? What advice would they give to law students who are about to write one? I will collect that advice, and post it here.
If there are other students (or former students) out there who have written such a Case Note or Recent Development, please let me know your own answers to these questions, and whatever else you want to add. You can leave a comment to this post.
Of course, as is often the situation with law reviews, once a Recent Development is published it is no longer a recent development. This is one reason why some people think that blogs are more useful to practitioners than law reviews.
So I have come up with an idea to make my Recent Development more interesting, and also to make certain that it is always kept “recent.” I discuss my idea for an Electronic Footnote below (or here).