JD Writing Requirement: Picking a Topic

There are a handful of "approaches" commonly used in legal scholarship. Though typically leveraged for writing a law review Note or Comment, these approaches provide helpful guidance for writing requirement papers as well. You can think of the approach as a lens that dictates the focus of the paper. 

1. Circuit Split

The circuit split analysis is one of the most commonly-used Note frameworks. You proceed by describing a narrow legal issue that at least two circuit courts have interpreted differently, explaining the source of those differences to the extent possible, and proposing a way to distinguish the case facts or resolve the discrepancy. Because this lens is quite commonly used, it is very prone to preemption--it is a very time-sensitive approach. There are a significant number of external resources dedicated to tracking these issues; please consult the "Resources" section if you find this approach appealing.

2. Case or Statute Developments

Note descriptions of recently decided cases or recently passed laws are also quite common. You proceed by discussing the meaning, role, and most importantly, the expected application of the case or law. It is a straightforward approach. Like circuit splits, writing about case or statute development is also prone to preemption, so if you find the approach appealing, be sure to review the preemption tab guidance in detail.  

3. Comparative Analysis of Different Approaches

As with circuit splits, you proceed by identifying an area of the law where there are two or more conflicting viewpoints. The methodological distinction is that when employing a comparative approach, an author typically argues for a particular solution. This approach can be applied using different state, regional, or national jurisdictions as points of comparison.

4. Applying a Non-Legal Theoretical Framework to a Legal Question

For students who have an academic foundation in a second field, this approach might be particularly appealing. You proceed by using a non-legal theoretical framework addresses a legal problem from an outside viewpoint (e.g., discussing tort reform from a behavioral economics viewpoint). Typically, a thesis using this approach will propose that the legal field would be better served by adjusting its understanding of the issue in accordance with the outside viewpoint. This approach can be very innovative and compelling but it requires a strong understanding of the non-legal viewpoint.

5. Identification of New Trends

This approach can be challenging, but if published, the author often receives a high level of scholarly notice. You proceed by identifying a new trend -- common threads in recent legal scholarship or case law. You then discuss the reasons for the growing influence, predict future influence, and / or offer a critique of that influence. Identifying a new trend can be very difficult and requires an extensive amount of preliminary research.

Before you begin exploring external resources, it may be helpful to see what former JDs or LLMs have written for Berkeley Law journals. To identify student scholarship, you may find it easiest to refine your search by publication type - Notes and Comments.

Eugene Volokh's Academic Legal Writing is the preeminent text on legal scholarship, now in its 5th edition. Available in the Law Library on reserve or online through UCLA.