Topic Selection and Pre-emption: Home

Types of Papers

There are several general categories of papers to consider when planning your topic selection.  They include:

1. Jurisdiction conflicts.  These topics usually involve circuit court splits (at both the federal and state level), differences of the laws of two different states, or the differences between a state law and the federal law.
   1. There is a risk in selecting a topic that has applied for cert. to the U.S. Supreme Court, or has been granted cert. already.  If the U.S. Supreme Court resolves the conflict before the paper is done, your argument may become obsolete.  If there is a split in the federal circuits, check to see the cert. status.
2. Applying existing law to new facts.  In the present climate, these topics often deal with applying the law to some new existing technology.  For example, applying the 4th amendment to GPS devices.
3. Applying new laws to common or usual events.  
4. Historical approach.  In this type of paper, the author explores the history behind the law.  However, a good legal history paper will conclude with a current application of that historical context and suggest a change in the law based on what has happened in the past.
5. Philosophical reflections.
6. Empirical research.  Authors of these types of papers conduct their own research and synthesize the statistics and present their findings in relation to existing law, or the proposition of new law.

What makes a good topic/paper?

Eugene Volokh, in his book "Academic Legal Writing," advises us that a good topic to write about will meet these four points:

1. The thesis will be novel.
2. The result will not be obvious.
3. The idea will be useful.
4. The argument will be based on sound legal analysis.

What does not work...

There is no one formula that will work, or that will fail.  However, there are some common problems that students run into. 

• You simply cannot restate events or rephrase the law. 
• You must state an opinion and draw conclusions. 
• You should not be vague in your assertions. 
• The topic should be discrete.  If the topic is too large, you will resort to vagaries and not meet the four points outlined by Volokh.