Picking a Paper Topic

Pick a topic that will interest you.  You are going to be spending a lot of time researching and writing on this issue so choose something you will enjoy writing about.

What is a good topic?  Ask yourself these 3 questions:

1.  Is what you say true?

• The paper needs to be well supported.  This "means that preceding legal and scholarly texts substantiates the claims that an article makes."
  Originality, 115 Harv. L. Rev. 1988, at 2005 (2002).

2.  Is your topic new?

• Is is a novel idea?  If not, then you are preempted.
• You must not pose questions that the profession has already answered and answered in the same way.
• Is it an original contribution to your topic (originality)?
• Watch out for moot cases/moot topics.

3.  Is your topic important and useful?

• Is is noteworthy?
• Does it add something to the body of knowledge?
• What is the significance of your article?
• How can your article benefit the legal community?

There is a balance between support v. preemption.  The more support that exists for a particular argument, the more likely it will be considered preempted. 

Originality, 115 Harv. L. Rev. 1988, at 2007 (2002). [HeinOnline]  Also see, William Kupersmith, What Makes a Paper Publishable, 12 (2) The Bulletin of the Midwest Modern Language Association 15, 1979. [JSTOR]

How to find paper topics?

Look for these categories in databases:

• Hot topics
• Emerging issues
• Unresolved issues – split circuits or split of authority, case of first impression, unsettled doctrine, open question
• Pending legislation
• Notable trials
• News programs; legal news
• Set up alerts and trackers on hot topics

1.  Find a Topic

• Start out by skimming legal news and blogs for ideas.  
• Do you remember something mentioned in class? Casebooks point out open issues or majority/minority views.  Faculty are also a great source of ideas.  
• Some students write about a legal issue that they heard about at work. 
• Pick an area that interests you.  What law classes did you enjoy? What area of law do you plan on practicing in after you graduate?  You will be researching extensively on this topic.  Why not write on something you can use later in practice.
• Use all the resources available to you.  Do not get stuck in the Westlaw/Lexis rut.  For your paper to have depth and breadth consult many resources.  Start by using the tabs at the top of this guide.

2. Narrow the Topic

Limit the scope of your paper.  As you conduct broad searches and read material on the topic, look for ways to narrow it down to a legal issue. Further research will help you define your issue (the problem that needs solved; question presented) and lay out your argument (the steps needed to support the solution).   

• Think of a zoom lens.  You want to zoom in and then zoom in again to narrow the topic.  
• You may wish to narrow by date or to a particular time period.  
• Narrow the jurisdiction.
• Use the layout of the database listing or blog directory to help narrow your topic.
• Also, creating a concept map as you gather background information is a graphical way to discover sub-issues and current controversies surrounding your broad topic.

3. Choose between a case note or comment and create the thesis.

The thesis is your analysis of the topic and the solution, each needs to be supported by legal authority.  For a list of theses, see the  Theses For a Note and for types of comments see Comment Categories.

4. Preemption check

After you formulate a rough draft of your legal issue, but before you go very far in your research, you need to conduct a preemption check.

1.  Case Note- Analyzing One Opinion.  "Analyzes one important case in-depth and describes how it affects the current body of law."   Source, at 929 (source link is very slow to open).  For sample theses arguments to make in a case note see the Theses For a Note.

2.  Comment- Examines One Aspect of the Law.  Below are a few categories and for more detailed list see the Comment Categories.

•  Jurisdictional Conflict
  • Split Authorities or Circuit Splits (state or federal level)
  • Majority View / Minority View
  • Conflicts of Law
  • Unresolved issues

• New Facts, Old Laws; Old Facts, New Laws
  • Applying existing law to new facts
  • Applying new law to existing facts
  • Can also "take an issue of first impression in one district and apply it to the law of a different district/circuit."  Source, at 927.

3.  Other law review topics, usually reserved for lawyers, faculty and legal scholars (in-other-words, too advance for law students).

• Legal History - the study of the historical development in an area of law.
• Legal Philosophy & Jurisprudence- the study of the fundamental elements of a legal system.
• Original research or empirical data
  • gather and present statistical data
  • proper survey techniques needed

Search recent legal news (such as the Legal News area in Lexis) or specialty news (Education Law Reporter, the Bloomberg current awareness, etc.)

"novel issue" or "open question" or unresolved or "circuit split" or courts /5 agree! or disagree!

You might consider writing an article that compares the law in all fifty states, or a select number of states.

Use the Pathfinder on HeinOnline Law Journal Library to find topics.