Academic Legal Writing - Eugene Volokh [10]
B. Finding a Claim
1. Finding a problem
To find a claim, you must first identify a problem, whether a doctrinal, empirical, or historical one, in a general area that interests you. The claim will then be your proposed solution to that problem.
Here are some tips, together with some quotes (in the footnotes) from people who have found their topics this way. These quotes might help you envision the suggestions more concretely. I also note in some of the quotes the rough ranking of the school to which the sender went, so readers can see that they can publish successful articles even if they don't attend one of the very top schools.
For more tips, read Heather Meeker's Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers, 1996 Utah L. Rev. 917.
2. ... in cases you've read for class, or in class discussions
Think back on cases you've read for class that led you to think “this leaves an important question unresolved” or “the reasoning here is unpersuasive.”* But try to avoid the questions that excite everyone, since those are likely to have already been heavily written about. Look for something that interests you more than it interests others. “[R]un in the opposite direction from the crowd, in order ... to have something new to say.”†
Also think back on class discussions that intrigued you but didn't yield a well-settled answer.
3. ... in casebook questions
Read the questions that many casebooks include after each case; these questions often identify interesting unsolved problems.* Look not just at the casebook that you used yourself, but also at other casebooks in the field.
4. ... in issues left over or created by recent Supreme Court cases
Read recent Supreme Court cases in fields that interest you, and see whether they leave open major issues or create new ambiguities or uncertainties.†
5. ... in your work as a research assistant
If you're working as a research assistant for a professor, keep an eye out for topics that might be useful to you. Not only might you find a topic, but you'll have learned a lot about the surrounding area of the law, and created a contact with a professor who may be inclined to help you.* The possibility of finding such topics might even be a reason to take a job as a research assistant.
6. ... by asking faculty members
Ask faculty members which parts of their fields have been unduly neglected by scholars. Some of the professors you ask may even suggest specific problems.† Not all take this view: some think it's the student's job to find a problem. But it doesn't hurt to ask several professors, in case some of them are indeed willing to suggest topics.
7. ... by asking practicing lawyers
Ask practicing lawyers which important unsettled questions they find themselves facing. To the extent you can, focus on asking academically-minded lawyers, for instance ones who had written law review articles, treatises, or practitioner articles. In particular, ask lawyers with whom you've worked, since they may feel especially willing to help you.
Ask the lawyers to suggest a specific problem, and not just to highlight a potentially fruitful area. As I mentioned, some (not all) faculty members may be reluctant to suggest such problems, since they may think that it's the students' job to find their topics themselves. But practicing lawyers should have no such qualms.*
8. ... by checking Westlaw summaries of important recent cases
Check the Westlaw Bulletin (WLB), Westlaw State Bulletin (WSBCA, WSB-NY, and such), and Westlaw Topical Highlights (WTH-CJ, WTH-IP, and such) databases. These databases summarize noteworthy recent cases, in one paragraph each; many such cases contain legal developments that might prove worth analyzing.
9. ... by paying attention to interesting newspaper articles
When you read newspaper articles, keep an eye out for interesting legal questions.† This seems to be especially useful for international law articles, as one professor reports: “In the international law journal context,