Professor Emeritus Leora Harpaz

Western New England University School of Law

FINDING A NOTE TOPIC

            When you join law review your first task is to identify a note topic. Selection of a good topic is crucial to the success of your law review experience. Law review students spend much of their time working on their note during their first year on the review. Spending so much time on a weak topic will not provide you with a rewarding experience. Moreover, production of a good note is the main criteria used to select students for membership on the law review editorial board. To write a good note it is essential that you select a topic that is worth writing about.

THE CHARACTERISTICS OF A GOOD NOTE TOPIC

            A successful note topic focuses on an issue of current legal controversy. A typical student notes focus on one or more recent judicial decisions, often decisions of the United States Courts of Appeals. Those decisions raise an issue that is not yet fully resolved and that involves a matter of some controversy. The existence of a current controversy can be indicated in a number of ways including the existence of conflicting decisions on the issue, sound reasoning in both the majority and dissenting opinions in a case, and weakness in a court’s reasoning.

            While student notes can focus on a controversy in an earlier stage of its evolution, such as before any court decisions have issued, such a topic provides a greater challenge for the student author. At such an early stage the topic is more of a blank slate and the student author can’t build on the judicial thinking that already exists on the topic. Nevertheless, a note about a recently enacted statute that anticipates disputes likely to arise over provisions in the law before such disputes are brought to court can be an extremely useful addition to legal literature.

            In choosing a topic, timing is critical. Timing must take into account not only when you start to work on your note, but also the fact that it is not likely to be published until a year after you begin. While you may be reluctant to choose a topic too early in its evolution because of the difficulties presented by such a topic, it is crucial not to select a topic that is too stale. Staleness occurs when published articles thoroughly discuss the issue and your article would be unable to add anything significant to the existing scholarship. Timing must also take into account judicial treatment of the issue. If the United States Supreme Court has agreed to review a legal issue, it is too late to write a note about that topic based on earlier opinions. It is also, obviously, too early to write about the Supreme Court’s view of the issue.

            Student note topics tend to focus on a narrow legal controversy rather than a very broad legal question. Moreover, the issue they focus on tends to be of a “technical” legal character rather than a broad question that is more social policy than law. These are the kinds of issues where student writing can be of most help to the bench and bar. When lawyers and judges confront a legal issue that is unfamiliar to them they search the law review literature for assistance. Articles that discuss the issue will be read for assistance in finding cases to rely on as precedent, developing arguments that support a particular outcome, and identifying arguments that must be refuted because they support an opposing outcome.

            While it is important to avoid issues that are too broad, it is also important to avoid issues that are too narrow or present no legal controversy. An issue that is too narrow or technical may not be of sufficient interest to you or anyone else to justify taking up pages in the law review. An issue that involves a dispute over the facts rather than the law will not present the kind of legal controversy you seek. Finally, an issue about which only one outcome seems even plausible will not present the kind of disputed issue that you want to select.

            Student notes have both similarities and differences to writing by faculty members and practitioners. Student notes will sometimes be narrower in scope than other law review writing and will be written while an issue is in active consideration by the courts. Moreover, the opinion of a student unsupported by authority will not be as valuable as the opinion of a recognized expert in a field. Therefore, students must always support the conclusions they reach with persuasive authority. On the other hand, student writing is expected to abide by the same criteria as all legal scholarship in terms of the accuracy of its content, the clarity of its presentation, and the originality of its contribution.

            Respected scholarly writing, including student writing, must add something to the scholarly discussion of a legal problem. If all it does is rehash what has already been written in decided cases or earlier works of scholarship it will not make a contribution, but will only uselessly add to the volume of pages devoted to a particular issue. The original contribution may be slight, but it may be enough to help the next scholar who writes on the subject to add yet another insight. Scholarship in a field should be thought of as a dialogue in which each person who joins the fray adds something a little different to the ongoing dialogue on the issue. Each person relies on what has been said before, but also adds something new to the discussion.

FINDING YOUR OWN TOPIC

            There are several methods available to select a topic. One method is to use Lexis or Westlaw to search for recent decisions that raise an interesting legal issue. This kind of search inevitably involves lots of trial and error. You can conduct such a search by narrowing the time frame of your search to six months or a year and searching for key words or phrases such as “issue of first impression,” “novel issue,” “circuit split,” or “difficult w/5 resolve” in order to identify potential cases. These search terms are far from exact since they are as likely to get cases where the court says an issue is not an issue of first impression or is an issue of first impression before a particular court, but has been resolved by many other courts. Similarly, a court may say an issue is not difficult to resolve or not novel and still fit your search parameters. You can try and eliminate some of these possibilities by also using a “but not” or “and not” in your search formulation. You can also focus on cases with a dissenting opinion by searching within that segment of the decision since the existence of a dissent is some evidence of a controversy. Unfortunately, the absence of a dissent does not mean no controversy exists thus such a search may be too narrow. Realistically, no matter how you structure your search terms you will find many more cases that don’t really fit your needs than do. Even if the search terms accurately appear in the case, the issue the case focuses on may not be of interest to you for a variety of reasons. You may not be interested in the general subject matter, the particular issue may be so narrow or technical as to not interest anyone, or the case may focus on an issue of fact rather than a legal issue. While searching for a topic through this method of using general search terms can be frustrating, and therefore requires patience, it can also lead to an excellent topic that you might not have found through other means.

            A second approach also involves the Lexis and Westlaw databases. This approach would try and identify recent cases in a particular field of law that interests you. In using this approach, it is important to remember that the topic must still satisfy the general criteria I have identified above and thus subject alone is not enough. You can of course combine subject area with other general search terms. This may, however, not produce any suitable topics at all since some areas of law do not provide fresh sources of legal controversy on an ongoing basis. You may have to try this technique with several different subject areas to locate even a single potential topic, but it is still worth doing.

            One note of caution about searching by subject area is that a subject matter focus can be deceptive in several ways. Such topics can provide facts that interest you, but the legal issue may not be interesting over the long haul. Additionally, while the subject may interest you, once you delve deeper into the area, it may turn out that the resolution of the problem turns on sometime that is not really an aspect of the field that interests you. For example, a health law issue can turn out to be resolved by the constitutional law doctrine of preemption or a First Amendment issue can turn out to be resolved by a rule of pleading rather than free speech doctrine.

            A third approach takes advantage of the fact that someone else has already identified a controversial legal issue. This might be found in a story in The New York Times or the Washington Post that highlights a series of recent cases. It might also be found in the general law volume of U.S. Law Week that summarizes recent interesting federal court cases or in a column in The National Law Journal that highlights a recent case. There are other online resources you can explore for this purpose as well. For example, you can look at the websites of advocacy organizations that participate in or keep track of litigation of interest to their members. These approaches, involving a topic already flagged by others, should be used with great skepticism due to the fact that the issues they identify may already be written about or may be so high profile that there are articles in development that may be published long before your article is complete.

           
             In addition to the advice on topic selection provided in this discussion, there are many other online sources that also discuss this process. You might be interested in Westlaw's Guide to Law Review Research (see pages 2-9 on how to select a topic and conduct a preemption check using the various Westlaw databases) which is available at  http://lscontent.westlaw.com/images/banner/documentation/LawReviewResearchGuide.pdf, LexisNexis's Write a Publishable Note for Your Law Review or Journal at http://www.lexisnexis.com/supp/lawschool/resources/write-a-publishable-note.pdf  or Researching for Law Review or Journal at http://www.lexisnexis.com/documents/pdf/20120730122236_large.PDF, FindLaw's Journal Notes 101: How to Find a Topic and Things to Consider at http://blogs.findlaw.com/greedy_associates/2013/10/journal-notes-101-how-to-find-a-topic-and-things-to-consider.html, a publication from the University of Washington Law School Law Library, Writing for and Publishing in Law Reviews, available at https://guides.lib.uw.edu/law/writinglawreview/topics, and a list of note writing resources from the University of Iowa Law Library available at http://libguides.law.uiowa.edu/notetopic. A number of other law schools also provide online resources useful in choosing a topic such as New York University School of Law at http://www.law.nyu.edu/students/studentwriting/topicselection.

            Once you have a number of possible topics that you have identified through one or more of these search techniques, you must then review each topic further. You must read the relevant decisions to make sure they adequately present the issue and that the legal discussion suggests an issue about which reasonable people can differ as to the proper outcome. You must also review the published literature in the field to make sure the issue has not already been the subject of exhaustive scholarly attention so that you doubt you could make any new contribution. The process of evaluating potential topics is explored further in the material on topic selection.