Writing and Publishing

"The ideal article topic balances three things. First (and most important), it should interest you enough to want to write about it and then talk about it at length on the academic market. Second, the simpler, the better--a topic that can be reduced to a short question or claim will be much easier to present and discuss during your job search. Third (and without losing sight of the second), a great topic contains enough inner complexity to allow you to showcase interesting new ideas your research could explore."

Start Reading

The best way to select a topic is to start reading.   If you are unsure of the area in which you want to write, start by reading a broad range of articles in a variety of journals – preferring highly-ranked ones -to develop a sense of what areas may interest you, as well as the kinds of topics that warrant articles, and how law professors write.  If you are confident of your area of interest, then read within that area of interest to get a sense of unanswered questions you may wish to address.  As you read and become engaged with the ideas being discussed, you will begin to formulate your own thoughts on the subject. 

There are many sources of potential topics.  One starting point are recent cases—of course you will be writing much more deeply than a case note, but a recent case may be a jumping off point.  You may also

find potential articles by considering unanswered questions that have been discussed in class, recent circuit splits (although you will want to be cautious that a Supreme Court decision will not preempt your article), reading law-related blogs, and speaking with professors who write in your area of interest.  Another fruitful approach may be interdisciplinary work.  If you have a background in an area other than law, put it to work for you.  Consider whether there is literature in another field that might provide insights into legal problems or whether, for example, you can use your social science or empirical training to your advantage.

You may also find it helpful to read the section of Eugene Volokh’s book “Academic Legal Writing” that focuses on note selection.  This book has very helpful and specific suggestions for locating a strong topic (and for writing an article).

Develop a Thesis

Keep in mind in choosing a topic that you will be writing something that is much more sophisticated than a student paper or law review note.  The topic must not be so narrow that a hiring committee cannot determine your scholarly potential or your ability to develop ideas and analysis.  On the other hand, the topic must not be so broad that you cannot possibly produce a cogent analysis in the allotted space (remember that Harvard Law Review now limits articles to fifty pages or less, including footnotes).  Most important, the article cannot be a mere discussion of cases or the literature.  It must analyze a question and draw a conclusion.  It might offer a proposal for reform.   It might show why legislation or previously offered proposals will not work.   It might have a normative takeaway.  You may be able to develop a theory.  At a minimum your ideas must contribute something new to the field.  Ideally your topic will point the way to your research agenda—the work you have begun and plan to continue as an academic.  If you are lucky, the first article will lead to the second, and so on.  Eventually you will have developed a body of work that makes a substantial contribution to a field.

Test the Idea

After you have developed a topic idea, discuss it with a law professor who works in that field. It is important to get a sense of how your ideas will be received and whether they are actually novel.  Be open to making adjustments to your topic – it is far better to make adjustments early, than to find out after you have committed months of work that your thesis is weak or unconvincing.

Finally choose a topic that genuinely excites you.  You will spend a huge amount of time reading, researching, and thinking about your topic before you even begin the process of many rounds of drafts.  If you write only one article before you go on the job market, it will become your job talk.  You will discuss the article with many people and (hopefully) will present it many times.  You must believe that the topic is important and scintillating if others are to feel the same way.

Additional Information on Topic Selection

Selecting an Law Review Article Topic, by Jonathan Todres

• Start by immersing yourself in the field. If you think you want to write on an aspect of health law or criminal law, start reading as much as possible in that area. That means reading several law review articles a week, reviewing the BNA for recent significant cases in your field (and possibly circuit splits on some issues), and generally getting to know the major debates in your field and/or what issues have received little or no attention.  If you are still practicing, it helps, of course, to pick an aspect of law you know from practice, so you are not starting from square one (that said, you want to pick a topic that is scholarly in nature and not just a practice-oriented idea).
• There are many ways to develop a good article. As you start to get to know your area of interest and come up with ideas, ask yourself whether your idea advances a particular debate in a meaningful way, whether it addresses an aspect of the doctrine in your field that has not received sufficient attention, and/or whether your claim has application beyond your particular issue.  Keep in mind, you want this article to appeal to scholars. That means, it needs to be more than just descriptive; you need a normative claim. 
• Next, make sure your article topic focuses on a fairly contained issue. That is, you do not want to pick such a broad topic that the project becomes overwhelming or there is no way to address all the issues in under 60 pages. 
• The challenge is to come up with a contained issue that is not merely descriptive but makes a normative claim that advances the debate in your field, has potential application to other issues or other areas of the law, or both.
• When you have an article idea, conduct a preemption check. If your idea passes that hurdle, then write a 2-3 page synopsis.  Share that with a couple academics who you know, not just practitioners.  If you have not done a lot of academic writing, it is important to get early feedback from faculty, as they know what scholarly ideas look like (asking them to read 2 pages eases the burden; alternatively, if you can chat with them for 10-15 minutes about your idea, that will work too).   Early feedback will help you avoid spending several hundred hours on an idea that has little merit or scholarly appeal. Also, chances are your will receive suggestions that help you develop the piece in a positive way.  I suggest having a friend or two review it and provide comment before you ask a faculty member to give you feedback.  Assuming you receive a positive response that your topic has merit, then you are set and can delve into the research and writing.
• One final thought:  Select a topic that truly interests you.  This sounds obvious. For many, however, there is a temptation to try to pick the most strategic scholarly topic regardless of level of interest.  You absolutely want to select a topic that has good scholarly potential, but don’t pick a subject based solely on that, without any regard to your interests. You will spend many, many hours researching the issue, so you don’t want to start off uninterested.  Plus, if this is ultimately a piece that you might use for a job talk, you want it to cover an issue that is part of your research agenda (for example, you don’t want to go on the market with a sophisticated bankruptcy article while telling people you are really interested in immigration law).  There are good issues in all areas of the law. Be strategic, but choose something of interest. You’ll be much happier throughout the writing process.