Academic Legal Writing - Eugene Volokh [21]
Other states probably have similar laws, or might at least be considering them. Frame your article as a general discussion of all the laws of this sort, even if it focuses primarily on two or three states as representative cases.
Of course, the various state laws will probably differ subtly from each other, which may require some extra discussion. But while this means some more work, considering these differences may make the article more useful, sophisticated, nuanced, and impressive.
4. Articles that just explain what the law is
These can be useful, and sometimes even novel, but they tend to seem obvious. The reader is likely to say, “true, I didn't know this, but I could have figured it out if I had only done a bit of research.” This is just fine if your reader is a busy lawyer looking for a good summary of the law—but not so good if the reader is a professor, a law review editor, or a judge looking for a creative, original-thinking law clerk.
There are exceptions: For instance, showing that the law is actually applied quite differently from the way most people assume might well be nonobvious. But even there, adding a prescriptive component to your description would be helpful. Should the law be applied this way? If not, how can the law be amended to prevent such applications? If yes, should the law be clarified or broadened to make such applications easier?
5. Responses to other people's works
Framing your article as a response to Professor Smith's article will usually limit your readership to people who have already read Smith's article, and will tend to make people see you (fairly or not) as a reactive thinker rather than a creative one.
If your piece was stimulated by your disagreement with Smith, no problem—just assert and prove your own claim, while demolishing Smith's arguments in the process. Cite Smith in the footnotes; Smith's opposition will help show that your claim is important and nonobvious. But don't let Smith be the main figure in your story.
6. Topics that the Supreme Court or Congress is likely to visit shortly
You don't want to write an article that will be quickly preempted by a new federal statute or Supreme Court decision. At best, you'd then have to radically rework your article; at worst, you might have to throw it out altogether. If you're writing about the law of a particular state, then you likewise need to watch out for new statutes or high court decisions in that state.
Unfortunately, one common way that students find topics—by identifying circuit splits—involves a high risk of the article getting preempted. A circuit split happens when several federal circuit courts of appeals disagree on a particular question. That makes the question more worth writing about, because the split shows that there's an important problem with no obviously right answer. But a circuit split is also a signal to the Justices that it might be time for the Court to resolve the issue.
So if there's a circuit split on your problem, check to see how likely it is that the Court will consider the matter and thus preempt your work. First, make sure that, for each case involved in the split, the Court has denied certiorari or no petition has been filed and the time to file has run out. Second, ask the professors who work in the field whether they think it's likely that the Court will agree to hear a case on this subject soon. Third, ask the same question of the professors who specialize in the Supreme Court; they sometimes have a different perspective from those people who work on the particular subject area.
You might also do the same three things when there is no circuit split on the problem, but the problem seems likely to attract the Supreme Court's or Congress's interest for other reasons. Don't be paralyzed by the risk of preemption—the Court and Congress deal each year with only a small fraction of all the problems out there. But think a bit about how likely preemption seems to be.
Finally, do not write on a topic that you think the Court will resolve shortly,