Finding a Topic

Professor Schnably

Many other sources of advice in choosing a topic are available on the web. They include:

For general advice on how to turn a subject in which you have some interest into a topic suitable for a note or comment, you may also want to take a look at

Step One: Make a preliminary choice of topic.

You will be spending a lot of time with the subject, and if it doesn’t interest you, the experience will not be enjoyable. Thus, as you begin to narrow down your choice of topic, you need to keep three things in mind.

First, the topic should be something that interests you and about which either (a) you have some opinion, or (b) you think you can identify some significant trend or other feature.

As for (a), by the time you get to the point of doing the work described in Steps Two through Four, you should not be thinking, “I want to write about such-and-such an area because it sounds interesting.” If that is the most you can say about it after doing that work, you risk ending up writing a general paper that simply describes an area of law without making any point. Instead, you should be thinking “I want to argue that X is right or wrong,” or that “Y case was wrongly decided,” or that “a new approach is needed to this problem because of reasons A and B.” The core of your preliminary topic should be a simple proposition that you think is worth spending your time arguing for, not a general interest in some area.

There are, of course, no absolute rules about topic selection. For one thing, your thoughts on the subject may change significantly as you work on the paper. In a few cases, it may be possible to write a good paper even though initially you don’t really have a strong feeling about what position you'd take. If you’re not sure of your opinion because you don’t have any strong feelings about the subject matter, that is as close to a guarantee of a bad paper as you can get. On the other hand, if you’re not sure about your position because you feel strongly pulled in opposing directions by different underlying concerns, then the topic may still be a good one. For example, if you were planning to write about surrogate motherhood arrangements and had no strong opinion about them, but just thought the issue was interesting, that would be a bad topic selection. If, however, you were planning to write about surrogate motherhood contracts and felt strong sympathies for the position both that they exploited women and that competent adults should have the right to enter into whatever agreements they wish, then the fact that you didn’t have a straightforward position at the outset would not necessarily indicate that you should reject the topic.

As for (b), the point is that not every note has to offer a prescription for change (or for the status quo). For example, you might think that courts have been treating a particular issue in contradictory ways, but haven’t realized it because the issue has come up in different doctrinal settings. Further, you might believe that the inconsistency in the way they’ve treated the issue is important, and that it’s generally gone unrecognized. That would be worth writing about, even if you didn’t necessarily offer a remedy for the inconsistency.

Second, the topic should focus on a legal question.

You should avoid topics whose working out would consist mainly of the application of relatively uncontroversial legal propositions to facts. You can’t write a good paper about human rights in a particular country, for example, if all you’re going to do is recount instances of torture and arbitrary detention, and then say that that violates human rights law. On the other hand, remember that you don’t have to define “legal” narrowly. There is no requirement that all papers focus on case or statutory analysis; it is possible to write a good paper that focuses on the philosophical or moral aspects of legal issues, or that recommends the creation of new institutions or enactment of new statutes.

Third, think realistically about the scope of your topic.

If your topic is too broad or diffuse, it will be impossible to give it anything other than shallow and cursory treatment. If it is too narrow, you will end up with an unexciting paper that amounts to little more than an exercise.

Where do you go to find ideas in the first place? There are several standard things to do:

  • Talk to people. Talking to attorneys, judges, or faculty members can be a good way to get ideas. One way to get a sense of faculty members’ interests is to check what they’re teaching and to see what they’re publishing. You can check the course schedule (available from the Law Registrar) for what they’re teaching and their web pages for what they’re writing. It never hurts to bring this up with anyone who might have ideas, and it’s not a bad starting place. At the same time, keep in mind that the more knowledgeable you are, the more likely you are to get help when you talk to people. If you’ve only got on shot at asking someone, you’ll get more out of your conversation if you’ve already done a lot of the work listed below.
  • Read national newspapers and magazines. Reading papers like the New York Times, the Wall Street Journal, the Washington Post, or the Los Angeles Times can be very useful in finding current legal issues. The Miami Herald might be marginally helpful for Latin American or Caribbean news, but nothing else (and there’s no student subscription rate (see below)).
    As for magazines, reading the ABA Journal is very useful. News-oriented magazines like The Economist or The Christian Science Monitor may also help you spot significant legal topics. Because of the importance of law to so many issues, opinion-oriented magazines often have topical commentaries. If your own leanings are liberal, don’t overlook the more conservative ones (e.g., the National Review or The New Republic) as well as more liberal ones (e.g., The Nation or Z Magazine); and vice versa if your leanings are more conservative. Whatever perspective the commentary is coming from, it may alert you to an interesting topic. Purely on-line venues (like Slate, the Huffington Post, or the Manhattan Institute) are another possible source, though as far as on-line resources are concerned, you are probably better off looking to specifically legal blogs (see below).
    • The Paywall Problem. Increasingly, national newspapers (and some magazines) have paywalls. And student budgets are limited. Still, even if you don’t see yourself subscribing to a newspaper for most of your life, consistently reading one of the national newspapers for some limited period (like a semester) is still worth it in terms of finding topic ideas. For example, if you plan to write a business-related topic, it’s definitely useful to read the Wall Street Journal regularly while you’re looking. The same would be true of the New York Times or the Economist magazine if you’re looking for an international topic.
    • Strategies for Dealing with Paywalls.
      • Bad strategies. Often you may get a few free articles a month even if there’s a paywall. Or you can get a few articles through google or apple news. You can read other people’s summaries of them on predominantly derivative (or, some might charge, parasitic) sites like Slate. You can follow a newspaper or magazine on twitter you may get some free articles that way, too. And there’s always the possibility of clearing your cache and trying to get more than the limit directly from the newspaper or magazine’s site. (Of course, somebody does need to fund journalism, but that’s another issue.)
        Why are these bad strategies?
        • You will only get a fraction of the content, because of limits on how many articles you can see for free or read through twitter.
        • Often the most interesting potential writing topics are not the major news topics that get highlighted by news organizations. You have to make a habit of actually taking the time to look through the whole paper or the magazine. You never know where the idea will crop up.
      • Good strategies.
        • Take advantage of an institutional affiliation. Check with the library or with your employer over the summer or during the school year to see if you have access through them.
        • Take advantage of student rates. Pick a paper or magazine and then check out its student digital subscription rates. They generally do have student rates and it’s not hard to find them on the website. The rates are often about $1 a week.
          • The Wall Street Journal offers a student rate of $15 for 15 weeks (or 52 weeks for $49) (and, according to the website, you can cancel any time). A semester of reading the Wall Street Journal or some other newspaper could give you some very useful current topic ideas.
          • The New York Times also offers a student digital subscription rate for $1 a week.
          • The Economist magazine offers a student subscription of 12 weeks for $1 per week.
          • Check other newspapers sites for more information.
  • Review recent court decisions. Particularly at the beginning of the school year, you should consider whether there are any Supreme Court decisions from the last term you might want to write on. You can also look for recent interesting decisions from the Courts of Appeals or state supreme courts. In some cases a federal district court opinion could be worth writing about, but keep in mind that if the issue is significant and there’s an appeal, your article could become dated even before it’s complete. (For the same reason, make sure the time for granting a motion for rehearing en banc has expired before you choose to write on a circuit court opinion.) One good way to identify interesting lower court opinions is U.S. Law Week, which is available in printed form through the Law Library or in electronic form through the network. For more information about electronic access to this resource, see the Law Library’s Subscription Database web page.
  • Look for circuit splits. A conflict in circuits can be a useful sign, because it may indicate that there is enough uncertainty or room for doubt in the area to make the topic a good one. It’s also a sign that the Supreme Court may decide to take a case in the area.
  • Check topical reporters and other sources. Another source of ideas is loose-leaf reporters or specialized newsletters in an area you’re interested in. For example, if you’re interested in international law, consider: If you’re interested in other areas, check the Law Library’s Research Guides, or consult with one of the reference librarians or a faculty member who teaches or writes in the area. You can also check the “Recent Topics and Hot Topics” in U.S. Law Week.
  • Check blogs. Consider law blogs for current news on legal issues. There are endless numbers of them. Some examples: There are also blogs devoted more to commentary, which can be useful: As you might imagine, there are blogs that track blogs, which can help you find others: Of course, you can always just search for “law blogs” on a search engine like Google or bing to find even more.

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Step Two: Do a thorough search of the literature to find every article that’s been written on the preliminary topic or is closely related to it.

Why do this? There are three crucial reasons.
  • Fundamentally, a good law review article is an engagement with other thoughtful scholars who have already published on subjects related to what you’re writing on. However interesting your own thoughts may be, they will be far less interesting and important if you write in a vacuum. And they will be far richer if you you engage with the literature.
  • Reading many law review articles is the best way to get a sense of how to write one. You can read all the guides to writing a law review article you want, but there is no better way to learn how to do it than by reading many law review articles.
  • You can determine whether the topic is preempted. For more information on determining whether a topic is preempted, see Step Four below.

Keep a list of all the articles you come across, so that you can give the list to whoever turns out to be your advisor. At this stage, however, you probably need to read only the most important four or five of the articles. Reading them will both help determine whether the topic is preempted and help you get a feel for the area. Pay attention to any student-written notes or comments you come across, so that you will develop a sense of what makes for a successful paper.

Do a thorough search of Lexis and Westlaw’s law journal libraries. Don’t rely on Google or even Google Scholar. Google does not offer the refined search capabilities that Lexis and Westlaw offer. Make sure you understand the coverage of the Westlaw or Lexis data bases you search so that you end up searching all law reviews (including those not published in the U.S., if you’re interested in an international or comparative law topic). Make sure you give some thought to the words you search for, so that your search isn’t unduly narrow. Try title searches and full text searches. You can also try searching the “Law Review Abstracts Clearninghouse” in Westlaw. You should also search SSRN.

If your topic is not too broad for a paper, then it is unlikely that you will find a book or treatise devoted exclusively to your topic. Nevertheless, if possible you should check to see whether there are any books, here or at Richter, directly related to your proposed topic. Not all articles are published in law reviews; some are included in collections of essays.

For more information on preemption checks, see Preemption Checking (University of Washington)

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Step Three: Find and read the most important cases, statutes, regulations, treaties, or other authoritative materials in the area.

In the process of reading law review articles in Step Two, you will likely find many cases, but, particularly if the articles you read are more than a few months old, you should do some research yourself. Shepardize older cases to see what has happened to them; if a federal or state statute is involved, check the appropriate annotated code. If a federal regulation is important to the topic, run it through a Lexis or Westlaw search. Of course, check to see if any statutes or regulations that are important have been amended recently. Where necessary, you should also check the current status of any relevant treaties (e.g., whether they have entered into force, or whether the United States has ratified them). If you are uncertain about how to find international materials, talk to the Foreign and International Law Librarian, Edgardo Rotman.

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Step Four: Decide whether the topic is an appropriate one in light of your preliminary research.

You should neither be too quick to reject a topic as preempted, nor too unwilling to drop it if there’s nothing left for you to contribute. You need to ask yourself whether the area is so heavily written up that there is nothing left to say, or whether there’s one article in particular that says just about everything you would say. Also, does your preliminary research indicate that what you thought was an interesting or important issue is really straightforward or unimportant? Does it indicate that the topic is so broad that you are unlikely to be able to treat it any depth? These are the kind of questions you need to ask in deciding whether to proceed with a topic. It’s better to find out now than two or three months into writing that there’s a major problem with your topic. It may be possible at this early stage to reconceive the topic; at worst, you can select another topic to write on.

On the other hand, good topics are not infinite in number, and you may come across other related articles. The fact that you find some articles or student written comments fairly close to your topic or even directly on it does not necessarily mean you should drop it. In fact, the more interesting, difficult, and topical a particular subject is, the more likely it is that you will find something written on it already. Consequently, you need to exercise some judgment in deciding whether a topic is pre-empted. Any particular article you find may be dated, poorly argued, or written from a very different perspective from your own. The question should always be: will you have any contribution of your own to make to the area?

In making your decision about whether to write on a particular, it is probably a good idea to speak to a faculty member. Obviously you will have to do so to get an advisor, but it is just as important to do so before you reject a topic.

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