Finding a Topic
Professor Schnably
Professor Schnably
Many other sources of advice in choosing a topic are available on the web. They include:
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.
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Why do this? There are three crucial reasons.
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Do a thorough search of Lexis and Westlaw’s law journal libraries. Don’t rely on Google or even Google Scholar to find law review articles. 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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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 Law reference librarians.
Can’t I just outsource all this work to AI?
No. You will do yourself a profound disservice if you don’t learn how to do legal research yourself. If you know how to do it yourself, for instance, you will be better positioned to judge any research results AI finds. Keep in mind, too, that there are important ethical questions involved as a law student. Certainly, representing AI-generated work as your own is wrong, not to mention perilous. Dan Mangan, Judge Sanctions Lawyers for Brief Written by A.I. with Fake Citations, CNBC, June 22, 2023. Beyond that, you should always make yourself aware of any rules that may relate to the use of AI in any work you do as a law student, including any rules imposed by an instructor in a course in which you are enrolled, a law review for which you are writing, or a law firm or judge for whom you are clerking.
At the same time, AI is not going away, and as it develops it may well increasingly be a useful component of legal research. It’s worthwhile to experiment with it and see what help it can give you in locating sources. One generally useful article is Paul Riermaier, ChatGPT and Other AI Technologies in the Study and Practice of Law (UPenn).
For more specific tips and guidance, see Daniel Schwarcz & Jonathan H. Choi, AI Tools for Lawyers: A Practical Guide (April 2023).
You might also explore:
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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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