A good note topic will make a claim that is novel, nonobvious, useful, and sound, for both the writer and the potential readers. Novelty is essential and is addressed on the 'Avoiding Preemption' tab, while obviousness, usefulness and soundness are judgment calls that will depend on the topic and on the skill of the writer.
The first step to coming up with a claim is to identify a problem - new legal developments, conflicts in the law, gaps or errors in current scholarly understanding, or any other flaw or hole that you identify within the legal world as it stands. The next step is to propose a solution to that problem - your proposed solution then becomes your claim.
The Law Library provides access to several resources to help identify potential problems that a law review note could propose a solution to. The resources described on this tab help identify current legal issues and take the form of legal news, current awareness services, blogs and news reports, and other sources. If you're not sure where to begin, try reviewing the common approaches to law review notes discussed below for ideas on how to organize your argument.
Once a problem has been identified and a good claim developed, the note author needs to move to the 'Avoiding Preemption' tab to ensure that the proposed claim is novel.
One of the most powerful resources for reviewing current legal issues are current awareness services, which report recent legal developments by topic. Four of the most comprehensive tools are BNA's topical publications, CCH's Intelliconnect publications, Westlaw's Topical Highlights, and Lexis' Emerging Issues Analysis.
Though a law review note can take many forms, there are some approaches that appear fairly regularly, which may provide guidance for a writer considering the framing of their claim. These approaches have pros and cons - they will not impress anybody with their novelty, but they do help keep a claim narrow and a paper on track. They can also provide good starting points for investigating a topic, even if the final paper doesn't fit these particular molds.
1. Circuit Split
The quintessential law review note topic - an identification of a situation where multiple circuit courts have interpreted the same law in similar situations differently, leaving the 'true' meaning of the law to some extent unresolved. A note may describe the split, identify any issues that may be influencing the courts, and propose a way to distinguish the situations or resolve the discrepancy. These topics can be very timely and relevant, but are also very prone to preemption - if the discrepancy is resolved or someone else writes on the same subject before your note is published, your topic can be rendered entirely obsolete overnight. These topics are so popular that there are resources dedicated solely to tracking circuit splits - see the 'Circuit Splits' box in the left column.
2. Applying a Non-Legal Theoretical Framework to a Legal Question
Another common approach to law review notes is to address a legal problem from an outside viewpoint, such as discussing obscenity law from a feminist viewpoint or property law from an economic viewpoint, usually by proposing that the legal understanding of the issue be adjusted in accordance with the outside viewpoint. This approach can be very interesting but requires a strong understanding of the non-legal viewpoint as well as the legal issues.
3. Comparative Analysis of Different Approaches
Similar to a circuit split, this approach identifies an area of the law where there are two or more conflicting viewpoints and argues for a particular solution.
4. Identification of New Trends
This approach identifies new trends in scholarship or case law, and discusses the reasons for the growing influence or predicts future influence. Accurately identifying a new trend can be very difficult but getting in early on the development of a new branch of legal scholarship can lead to a note that maintains a high level of scholarly notice.
5. Case or Statute Notes
Descriptions of recently decided cases or recently passed laws that discuss the meaning, role, or expected application of the case or law. Very straightforward, but there is usually not a lot of room for extensive analysis. Many law reviews treat these sorts of articles separately from actual student notes.
Many law review authors begin and end their search for note topic ideas with searching online. However, make sure to take advantage of other opportunities for developing note ideas:
1. Class Discussions and Readings often identify open questions in the law
2. Casebooks and Hornbooks will also often point out open issues or areas of controversy
3. Faculty Members are often glad to discuss open issues with students in their areas of expertise
4. Work Experience from your 1L summer jobs - were there any questions you were asked to research that did not have an obvious answer?
5. Pre-Law-School Experience can help identify issues that aren't on the legal radar but are essential to people working in that field