Developing a topic for an independent research paper or law review article is the most difficult and most important aspect of the writing process. Its also presesnts the classic "chicken & egg" problem: You have to do some research in order to find a topic to research and write about. Where do you start?
We can summarize the process as a series of steps:
1. THE IDEA
What areas of law interest you? What classes have you enjoyed the most? Do you know an expert in an area of law that you admire?
2. THE TOPIC
This is the subject of your article. It could be a particular case or line of cases, a legal trend, or new legislation. Keep these considerations in mind when searching for a topic:
Your topic should be NOVEL: It should say something that hasn't been said before
Your topic should be NON-OBVIOUS: Don't rehash settled law; find a new twist
Your topic should be USEFUL: Be practical; how can this article benefit the legal community
Most writers start with a topic that is too broad to manage. Be prepared to narrow the scope of your article by asking some questions:
Does this topic have several parts?
Are there different opinions about the topic?
Are their similar topics to this one?
Is there a clear solution to the problem or several possible approaches?
What future developments could impact this topic?
3. THE THESIS
Once you have found an interesting topic to right about, the next step, and perhaps the hardest step is to develop a thesis. The thesis is your analysis of the topic. It presents the problem and offers a solution supported by your arguments and authority.
A thesis typically follows one of two forms:
A DESCRIPTIVE thesis describes what exists in the world today such as overview of a court's approach to a particular issue, the fact that there are disagreements about how to apply a law, or that the Supreme Court ruled in a certain way.
A PRESCRIPTIVE thesis describes what the law should be, how the courts ought to approach a particular issue or why the Supreme Court was incorrect in its ruling.
Try to combine both a descriptive aspect and prescriptive aspect to your thesis. This style is effective because it informs your readers of something they didn't know before and offers a solution.
Choosing a topic can be challenging, however there are resources which can make this task a lot easier. Topic selection resources fall into broad categories, depending on what type of topic you want to write about.
You may also find it useful to consult guides for locating paper topics prepared by BNA, LexisNexis, or Westlaw.
A critical aspect of writing a publishable article is originality. You must say something that no one has said before. As you review the literature about your topic and thesis, you discover that articles already exist on your topic. Does that mean going back to square one and finding a new idea? Not at all. There are many ways to look at a problem. Develop your thesis through a particular point of view. As long as your thesis is original you are not prempted by other articles on the same topic.
Once you have a topic in mind, it's time to do a literature search. There are several good reasons to do this:
1. To be publishable, your thesis must be original. So you must determine if there are any articles out there that says what you are planning to say. When you find an article that does, your article is "preempted."
2. Reviewing the literature on your topic can give you ideas on how to narrow your topic or take a particular point of view.
3. Reading articles on your topic is one of the best ways to develop both horizontal knowledge (background research) and vertical knowledge (specific research on your thesis). Many if not most law review articles build on previously published law review literature.
Don't overlook scholarship in book form. Important for horizontal knowledge (background), books can offer a comprehensive view of a broad subject or focus on a narrow issue. Either way, locating books on your subject is an important part of your research.
Check out the Preemption Check guide from CALI.
To identify situations where circuit courts have ruled differently on the same issue or where a court is examining a legal question for the first time, try searching case databases on Lexis or Westlaw with searches like:
circuit or court/s split
issue or matter or question/s "first impression"
See Westlaw's Guide to Law Review Research, page 4, for more sample searches. Or, check out a source that has identified circuit splits for you like: