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Researching Your Scholarly Writing: Choosing a Topic
Copyright 2011 Georgetown University Law Library
Choosing a Topic
Choosing a topic can often be the most difficult part of scholarly legal writing.
This brief tutorial will show you how to come up with a viable topic and claim by first
doing some preliminary legal research.
This tutorial is focused on note-writing for journals, but it is equally-applicable to any
other type of scholarly legal writing, including seminar papers.
What is a topic?
The topic of a journal note incorporates a claim. The claim is the particular argument (or
thesis) advocated in the note (e.g., Cap & Trade is an ineffective policy because the
carbon caps are not binding).
Journal notes are persuasive and construct arguments advocating the position stated in
the claim.
What makes a particular topic a good topic for a note?
According to Eugene Volokh, a prominent legal scholar who has written extensively on
the subject of academic legal writing, a good topic satisfies four criteria. The topic must
be
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
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Novel,
Non-obvious,
Useful, and
Sound.
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Novelty
Your topic should add to the body of professional knowledge by saying something that
hasn’t been said before.
A topic can be novel if:
 There isn’t a lot written on your topic;
 There are a lot of papers written on your topic, but your claim is new; or
 Your claim, coupled with your basic rationale, is a novel approach to the subject.
Novelty
By using a little nuance in the way you structure your topic, you can make your topic
novel:
 Come up with a claim that isn’t a strong “yes” or “no”, but is a little more grey.
 Limit your claim to your strongest arguments.
 Present special factors that exist in your claim but not in other situations (e.g.,
government interests are present in some situations covered by your claim but not
in others).
Non-Obvious
Your claim should lead to a conclusion that is non-obvious. Claims that just apply settled
law or well-established arguments to slightly-different fact patterns tend to look obvious.
Add a twist that other people would not have thought of.
You may want to discuss your idea with a professor who specializes in the field, a
lawyer, or a classmate to get their feedback on your paper topic.
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Utility
Your note should, ultimately, be useful for the reader. In other words, why would
someone want to read what you’ve written?
Some ways to make your note useful:
 It focuses on issues left unresolved or open by other articles, cases, etc.
 It applies an argument to a jurisdiction that previous articles, cases, etc. didn’t
consider.
 It incorporates prescriptive implications of your descriptive findings.
 It provides politically feasible policies.
Soundness
Your note should be “sound.” This means that the claim, argument, and structure of your
note are based on a firm foundation of law and logic, and has the weight of authority
underlying it.
Typical Topics for Notes
Most notes’ topics tend to fall into the following categories:
 Jurisdictional conflicts in an unresolved area of law:
o Circuit splits
o Different states
o Differences in state and federal treatment
 Applying existing law to a new factual situation
 Applying a new law to an existing factual situation to show the effects
 Historical law
 Legal philosophy and jurisprudence
 Original empirical research
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Topics and Claims to Avoid
Sadly, not every idea is a good one. Many poor topics fall into the following categories:






Notes that show that there is a problem, but don’t articulate any solutions.
Notes focusing on the law of only one state.
Case notes that merely describe and criticize a single case opinion.
Notes that simply just explain what the law is.
Overly-narrow responses to or criticisms of a particular author’s work.
Topics that the Supreme Court or Congress are likely to visit while you are writing
or soon thereafter, because your note will be out-of-date and preempted very
quickly.
Investigate the timeliness of your topic
If your topic is based on a circuit split, you will need to do some additional research to
ensure that you did not select a topic that the Supreme Court may preempt by hearing
one of the cases:
 Using Keycite or Shepards, check the case history of every circuit case forming the
split:
 Has a petition for certiorari been filed?
 If not, has the time to file a petition expired?
 If petitions for certiorari have been filed, has the Supreme Court denied cert for
each circuit case?
 If a petition for certiorari has been filed, there is a chance that the Supreme Court
may take up the issue. You will need to keep monitoring the petition to see whether
or not the Supreme Court has granted it.
Investigate the timeliness of your topic
Ask faculty who specialize in the subject whether they think the Supreme Court will hear
a case on your subject soon.
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Coming up with topic ideas
There are many research sources that can suggest potential topics.
The first place to start is with your own classroom experiences:
 Class discussions that you found interesting, but didn’t seem to have a well-settled
answer
 Cases that you read that you felt left questions unresolved or that the reasoning
was unpersuasive
 Look at the discussion questions that your casebooks include after each case
Coming up with topic ideas
There are many subject-specific law blogs on the internet that are maintained by law
professors.
Law Professor Blogs (www.lawprofessorblogs.com) is a particulary good source for
finding blogs “by law professors for law professors” on a wide variety of legal subjects,
including tax, copyright, constitutional law, etc.
Other well-regarded legal blogs include The Volokh Conspiracy (volokh.com) and
SCOTUSblog (www.scotusblog.com).
Coming up with topic ideas
Your work experiences can also be a source of inspiration.
For example, a memorandum you researched may have legal issues that can be
examined more deeply.
Lawyers you worked with may also be able to suggest unsettled questions they find
themselves facing.
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Coming up with topic ideas via databases
Using Lexis and Westlaw to search for circuit splits and cases of first impression is a
good way to find a case you can use as a starting point to flesh out a topic.
Searches that make good starting points:
 (circuit /5 split) (use a district court database, such as DCT [westlaw] or legal>cases -US -> US District Court Cases, Combined [Lexis] and limit the date to the
current year)
 “courts diverge”
 “first impression” (use a district court database, such as DCT [westlaw] or legal>cases -US -> US District Court Cases, Combined [Lexis] and limit the date to the
current year)
Note that these searches may result in over 100 hits each. So, you may want to combine
these searches, use locate in results, or add search terms specifically on your subject of
interest (e.g., tax, environmental law) to narrow down the results.
Coming up with topic ideas via databases
United States Law Week publishes summaries of cases that their editors consider
interesting. Many of these are cases for which the U.S. Supreme Court denied certiorari.
You can search these summaries for circuit splits or cases of first impression in the BNAUnited States Law Week database.
The search strings listed on the previous slide make good starting points.
Coming up with topic ideas via databases
Westlaw also has “Westlaw Topical Highlights,” consisting of several “current legal news”
databases, which are organized into various practice groups. Topics include antitrust,
business, bankruptcy, copyright law, family law, criminal law, tax, and intellectual
property.
Westlaw Topical Highlights can be accessed from the main directory screen -> Legal
Periodicals & Current Awareness -> Westlaw Highlights & Bulletins -> Westlaw Topical
Highlights.
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For more information
For more detailed information on topic selection, please read:
Eugene Volokh, Academic Legal Writing: Law Review Articles, Student Notes, Seminar
Papers, and Getting on Law Review (4th ed. 2010)
Heather Meeker, Stalking the Golden Topic: A Guide to Locating and Selecting Topics
for Legal Research Papers, 1996 Utah L. Rev. 917.
This concludes this section of the tutorial. Additional sections will detail the next stages
of scholarly writing, including
 preemption checking, and
 In-depth research strategies.
Part 2
Preemption Checking
Copyright 2011 Georgetown University Law Library
Introduction
Now that you’ve chosen a topic, it’s time for Preemption Checking to determine if
your idea for a journal note or paper is original. Law reviews and journals will only
publish original articles and notes. Also, many seminar papers are required to be
"publishable," with professors insisting on original arguments or ideas.
Only your thesis, not your topic, must be original. In other words, your argument
must be unique. By thoroughly reading articles and papers discovered during a
preemption check, you will be able to focus your topic in a unique way.
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The bonus of doing a thorough preemption check is that you will have a head start
on the research for your scholarly writing, which will be further explained in
another section of this tutorial.
When doing a preemption check, it is important to search many different sources in
many different ways to make sure that you find everything written on your narrow
topic.
If you only look in one database, you might find everything in that database, but
you will miss documents that are only available in another source.
For example, a working paper will not appear on Westlaw because only published
articles are included in Westlaw's journals and law reviews database. Prior to
publication, many articles first appear on a working paper site such as SSRN or
bepress.
Getting Started
To perform a thorough preemption check it’s important to search:
1) Lexis or Westlaw's law review database
2) HeinOnline's law journal library
3) A legal periodical index such as Legal Periodicals and Books or Legal Trac
4) Google Scholar
5) A database of unpublished works such as SSRN's Legal Scholarship
Network or bepress (Berkeley Electronic Press)'s Legal Repository.
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A Word of Advice
You should also consider talking to a professor or librarian who is an expert on the
topic you're writing about. They can offer advice on specialized places to search or
they may be aware of unpublished reports or papers presented at conferences or
workshops.
Lexis & Westlaw
Both Lexis and Westlaw have databases that contain the full text of law review
articles. These databases, however, do not contain every law review article ever
published.
Because the coverage of the databases is not identical it is possible that Lexis will
have older articles that are not available on Westlaw and vice versa. The coverage
for newer articles (2000 to the present) is similar on both systems.
Let’s take a look at the law review files on both Westlaw & Lexis.
Westlaw
a.
Westlaw's "Journals and Law Reviews" database includes materials published in
U.S. & Canadian law reviews, CLE (continuing legal education) materials, and bar
journals. The coverage of particular journals varies, but generally it includes every
article printed in a journal from about the 1990s forward and selected articles from
the 1980s forward. It includes much older articles from a few journals, such as the
Harvard Law Review and Yale Law Journal.
b.
Lexis
On Lexis, the "US Law Reviews and Journals, Combined" includes articles
published in U.S. law reviews back to 1982. The coverage of particular journals
varies and can be verified by clicking on the (i) button.
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HeinOnline
HeinOnline's Law Journal Library is another database of U.S. and Canadian law
review articles. It generally contains the full run of the journal (Volume 1 - ) with the
exception of the most recent one or two issues.
The articles are presented as scans of the print version, so they contain material
that may be missing from Lexis or Westlaw versions, such as tables or charts. If
Lexis or Westlaw omit a chart or other graphical material, there will be a note such
as "Chart Omitted."
HeinOnline's format is especially helpful if there is a law review symposium on your
topic as you can easily browse the entire symposium issue online.
Legal Periodicals & Books
The databases Legal Periodicals and Books and Legal Periodicals and Books
Retro index journal articles and books back to 1908. However, they do not include
all books on legal topics.
The value of this database for preemption checkers is that a subject heading is
assigned to each item in the database. Find a subject heading that covers your
topic and you can find all of the articles on your topic.
This database is sometimes called Index to Legal Periodicals (its print
predecessor) or Wilson Web (the name of the company that owns and provides the
database).
LegalTrac
LegalTrac is another database that indexes articles. It covers about 875 law
reviews and law related articles from about 1000 other journals. It goes back to
1980.
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The value of this database for preemption checkers is also that a subject heading
is assigned to each article. The subject headings are different than those used in
Legal Periodicals and Books, so if you don't find an appropriate subject in one
database, try the other.
Google Scholar
Google Scholar is a quick and easy way to search many scholarly databases at
once. It uses Google's technology to search scholarly databases from many
different disciplines as well as Google Books and other online collections of
scholarly materials.
For law, it includes some HeinOnline content and SSRN, but it does not include
Lexis, Westlaw, or any of the law review indices.
It is especially important to use this resource if your scholarly writing is on an
interdisciplinary topic such as law and economics or on a topic best covered in
another discipline. For example, general environmental journals would focus on the
topic of carbon emissions and could provide useful research.
Google Scholar won't give you direct access to the articles in the databases but
Georgetown has integrated their database subscriptions into the Scholar
Preferences and articles which we subscribe to are linked as indicated below.
Unpublished Articles
Because it can sometimes take more than a year for an article to be published, you
should also check databases of unpublished articles and working papers. This will
alert you if an article similar to yours has already been written but not yet
published.
Most of the papers on SSRN and bepress are eventually accepted for publication.
If you use material from these websites in your own paper or note, be sure to cite
to the published version.
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The best sources for these types of document are SSRN's Legal Scholarship
Network at http://www.ssrn.com/lsn/index.html and bepress' Legal Repository
at http://law.bepress.com/repository/.
For some additional resources on Preemption Checking, we suggest taking a look
at these guides.
•
http://www.law.northwestern.edu/library/research/writing/preemption/
•
http://m-library.law.yale.edu/content/preemption-checking
•
http://www.lib.uchicago.edu/e/law/db/ej/preemption.html
•
http://www.law.syr.edu/Pdfs/0LawReviewPreemptionCheck.pdf
Congratulations!
You know now why it's important to conduct a preemption check in scholarly
writing and have a roadmap to complete yours. Don't forget to search Lexis or
Westlaw, HeinOnline, Google Scholar, Index to Legal Periodicals and Books or
LegalTrac and either SSRN or bepress' Legal Repository.
Be sure to use both keyword searching and subject searching when you can.
Finally, be sure to mine citations in the articles and books you find helpful.
For an additional tutorial on Preemption Checking, you can refer to www.cali.org.
This concludes this section of the tutorial.
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Part 3
In-depth Research Component
Copyright 2011 Georgetown University Law Library
Introduction
In this tutorial, you have learned how to
 select a topic, and
 complete a preemption check
Next, you will learn how to conduct the rest of the research necessary to write a
scholarly journal note or seminar paper.
Overview
This section of the tutorial is comprised of two main parts.
The first part covers the background research you will need to complete to have a
solid understanding of the area of law or subject generally, and the second part
discusses how to focus your research.
The tutorial will then conclude with some final important tips for conducting
successful scholarly research.
Important Note
You may notice as you proceed through this section that the process is described
as very linear. As you know from your own experience, research is not necessarily
so undeviating. Rather, you proceed forward and backward as you find new
information and begin to draft your paper. To ensure that your research is
complete and of high quality, however, remember to keep these suggestions in
mind and carefully organize your research.
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Additionally, this tutorial necessarily does not contain a complete list of resources
for every topic. It provides an introduction to scholarly research and sources and
search techniques applicable generally.
With that in mind, let’s begin.
Background Research
To get started, you will need to conduct background research to familiarize yourself
with the subject and area of law.
You certainly already know something about your topic from either personal
knowledge or class and from the research you did to select the topic and conduct a
preemption check.
This phase of your research, however, goes further and is meant to ensure that
you have a solid understanding of the general area of law or subject. Specifically,
you should find and read a good introductory treatise on the topic as well as other
relevant books and law review and journal articles.
Finding a Treatise
You already learned how to find legal journal articles in the premption checking
section of this tutorial. You may also want to read articles related to your topic
from non-law journals, and the next part on focused research will discuss finding
journal articles and books from other disciplines.
For now, let’s learn how to find a good introductory treatise on a particular area of
law. Continuing with the example of the regulation of greenhouse gas emissions,
the next slides will teach you how to find an environmental law treatise in the
Georgetown University Law Library.
There are a number of ways to find a good treatise, but one of the best is to
use the law library’s Treatise Finder.
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The Treatise Finder contains a list of preeminent treatises and study aids
organized topically into over 50 practice areas.
Let’s look at the environmental law treatises.
Here are some of the treatises listed in the Treatise Finder under
“Environmental Law.”
For each treatise, the Treatise Finder provides the title, author, location, and a
brief description.
It also indicates whether a treatise is a preeminent treatise or a good study
aid.
The medal symbol means it is a preeminent treatise.
The light bulb symbol means it is a good study aid.
Click the call number to view the availability of the print version and the
database link to connect to the electronic version.
Another good method for finding a treatise (as well as other information on
your topic) is to use one of the law library’s Research Guides.
Click on Research Guides > By Title to see a list of all topical research
guides.
The library has created research guides on numerous topics, including
environmental law.
Most research guides begin with an introduction to the topic and a list of
treatises to help you get started with your research.
Research guides contain much more than a list of useful treatises.
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The Environmental Law Research Guide, for example, also includes
information on major laws and regulations, how to find other books and
journal articles on environmental law, and useful subject specific databases
and websites.
Finding Treatises and Books in the Library Catalog
Finally, you can find treatises, as well as other books on your topic, by searching the
library catalog.
For more information on how to search the catalog using either GULLiver or Encore, see
our other tutorials:
Link to GULLiver Tutorial
Link to Encore Tutorial
Focused Research
Once you have completed your background research, it is time to delve more
deeply and focus your research on specialized materials for your topic.
Specifically, in this phase of your research, you will want to do the following:
 Dig deeper into leads from your background research
 Find, read, and update the relevant primary law
 Identify additional materials on your topic, including, if appropriate,
interdisciplinary materials
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Citations & Citators
An easy way to begin your focused research is to follow the citations from your
background reading. The books and articles you already read will have contained
numerous citations to other relevant sources.
Additionally, you can use a citator, such as KeyCite or Shepard’s, to find sources
that have cited the materials you already found. For more information on using
KeyCite or Shepard’s to find additional sources, see this CALI Lesson on Using
Citators as Finding Tools.
There are other databases in addition to Westlaw and LexisNexis that contain
citators, such as Web of Science, HeinOnline, and Google Scholar. If you would
like to know more, contact a librarian.
Primary Legal Research
You likely found citations to important statutes, regulations, cases, and other
primary legal materials in your background research. Returning to the example of
a paper on the regulation of greenhouse gas emissions, you may have already
found the federal emissions standards for cars in a law review article.
However, you should never rely solely on the explanations of law that you found in
a book or article. Secondary sources are an essential component of the scholarly
research process, but they should not be used as a substitute for your own
primary legal research.
As part of your focused research, therefore, you need to find, read, and update
the relevant primary law (e.g., the federal regulations on vehicle emissions
standards).
Primary Legal Research
Conducting your own primary legal research for your scholarly writing rather than
relying on a secondary source alone is important for several reasons, including the
following:
 The author may have made a mistake
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 The law may have changed since it was written
 In your paper, when making a statement about what the law is, you need to
cite to the law itself, not what someone else said the law is
 If you cite a particular source, such as a federal regulation on vehicle
emissions, you must read it yourself because a citation communicates to
your audience that you actually did consult the source
Strengthening Your Paper with Additional Research
Lastly, as part of your focused research, you may want to consult sources
other than traditional legal materials in order to deepen your discussion of the
topic and strengthen your arguments. For example, you might want to
consider
 interdisciplinary sources,
 policy-oriented sources,
 statistical sources,
 legislative history, and/or
 news sources.
The slides that follow will show you how you can begin finding some of these
resources at the Georgetown University Law Library.
One of the best places to start to find any of these materials is usually a
research guide. Georgetown’s research guides contain information on legal
and non-legal resources.
Under Research Guides > By Title, you’ll find a list of all topical research
guides, including guides on policy, statistics, legislative history, and
news.
You can also find interdisciplinary databases in our topical list of databases.
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The following slides will show you how to find some databases related to
environmental law and the environment.
Click Topic List under Databases
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Select Environmental Law
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Here are some of the databases. Let’s select Greenwire, which is a daily
news service covering environmental policy.
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Here is Greenwire’s home page with a lead article on emissions.
Don’t forget that you can always search the law library catalog to find books,
journals, and e-Resources. The law library has a lot of non-law resources
available.
You can also access materials available at the Georgetown University
Library--a great source for interdisciplinary materials.
Search the library catalog.
Or use the library’s guides to Resources by Subject.
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If you find any books at main campus that are not available at the law library,
you can request it and the book will be delivered from main campus.
Final Research Tips
You have learned a lot about conducting research to support your scholarly writing
in this tutorial. Here are a few final tips to remember when you begin your
research:
1. Use multiple search techniques (e.g., search by keyword, search by subject,
browse)
2. Build on the information you already have (mine the citations within a source
and use citators to find even more)
3. Carefully evaluate the sources you identify for quality, authority, and currency
4. Utilize resources that have completed some of the work for you (e.g.,
research guides, U.S. Law Week’s list of circuit splits)
5. Take good notes and keep your research organized
And, if you need help, ask a librarian!
This concludes the tutorial on Researching Your Scholarly
Writing.
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