Writing for & Publishing in Law Reviews

Sometimes authors toss out questions without answering them. For instance, in a journal article:

The view [of net neutrality] taken by the Council of Europe suggests that there should be a very strong presumption in favour of banning all discrimination unless it meets the very high threshold of “over-riding public interest”. That would inevitably lead to the question of how could prioritising Internet content ever fall under “over-riding public interest”? Considering that question is well beyond the scope of this article, but provides an interesting angle with which to examine the need for prioritisation.

Darren Read, Net Neutrality and the EU Electronic Communications Regulatory Framework, 20 Int'l J.L. & Info. Tech. 48, 53 (2012) (emphasis added).

You can search full-text law reviews on LexisNexis or Westlaw for indications in an article that the author has mentioned an interesting question in need of further research. Try phrases such as "open question," "interesting topic," or "article topic.

Sample search: interesting intriguing open important unresolved /s question issue /s "beyond the scope" "not address!" & DA(aft 01-01-2019)

Casebooks & treatises: Scan the notes in casebooks (and especially recent casebook supplements) for comments that some issue is unresolved. Search treatises online for "open question" and similar phrases. Examples:

As discussed earlier, the United States Supreme Court recently upheld a restriction on the receipt of all publications to a group of highly recalcitrant prisoners in Pennsylvania's supermax prison. Whether or not the reasoning of that decision would apply more broadly to other prisoners in disciplinary confinement remains an open question. However, the justification offered in Beard for the restriction clearly would not apply for inmates in administrative segregation. Inmates are not in that restrictive environment for punishment; therefore, restrictions on receipt of literature should be much more carefully scrutinized.

2 Michael B. Mushlin, Rights of Prisoners § 6:16 (4th ed. database updated Oct. 2011) (available on Westlaw) (footnotes omitted) (emphasis added).

An interesting question Glass did not resolve is the status of a patent that issues with a specification that was not enabling as of its filing date but was enabling at the date it issued. In an infringement suit, should the court rule the patent invalid for failure to comply with Section 112? Or should it merely deprive the patent owner of the filing date as the presumptive date of invention in applying the novelty and nonobviousness requirements? The rationale of Glass seems to indicate that the former course should be followed. The applicant should make full enabling disclosure as of the date the specification is filed and should not be allowed to rely upon what others may later publish.

3 Donald S. Chisum, Chisum on Patents § 7.03 (database updated May 2012) (available on LexisNexis) (footnote omitted) (emphasis added).

A call for papers is an announcement by editors of a journal or organizers of a conference that they are seeking papers on a given theme. Some calls for papers ask authors to send an abstract or proposal; others seek finished papers. Reading the call for papers can give you ideas for topics, whether or not you submit your own paper. And of course, if you do submit a paper, that can be a path to publication. If there is a conference, you could have a chance to present your paper and to interact with other scholars in the field.

If you follow blogs on specific topics, you will often see calls for papers in those areas.

As with calls for papers, the topic description for a student writing competition can give you valuable ideas. Prizes for these competitions can include cash, publication in a journal, or travel expenses to a conference.

As you develop your topic, you will find it helpful to talk to your professors and to lawyers you have worked with. You will find the conversations are more constructive if you have already done some work. If you were Prof. Pundit, how would you respond to these two students?

• Student 1: "Hi, Professor Pundit! I was in your Constitutional Law class last spring. Now I have to write a paper and I wonder if you could give me a topic. Is there anything interesting in constitutional law?"
   
• Student 2: "Hi, Professor Pundit. Thanks for meeting with me. As I said in my email message, I'm trying to work up a topic related to the reach of the commerce power. I don't want to tackle the Affordable Care Act case, but I think there have been some interesting developments in other areas. Could I talk to you about a couple of 9th Circuit cases I've been thinking about?"

Use your contacts. Go to professors and others to help you with your ideas. But go prepared; don't expect them to hand you a perfect topic.