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Comment Topic Selection for Law Reviews: Topic Development

The process of choosing a comment topic is as important as the continuing research and writing process that follows.

  • Be prepared to spend a significant amount of time doing preliminary research about the subject that interests you.
  • Remain open-minded as you research.
  • Talk to subject specialists in the profession early in the process.
  • Choose a topic you can live with very closely for a year! 

What is a Comment?

  • A comment is a student-written, scholarly article that focuses on a single legal issue within a defined area of the law. 
  • Your comment will provide a detailed analysis of an issue, and will includes cases, and possibly other primary law, and scholarly work. 

Here are a few citations to recent comments published in Marquette law journals that demonstrate topicality, relevance, and scholarly quality. This is not an exhaustive list, but these comments illustrate the goal of a student comment and show exemplary work done by your peers:

The MULS Scholarly Repository has digital issues of all published MULS law journals and MULS faculty scholarship.

Elements of a Workable Topic

Interesting 

Significant

Original

Timely - an issue that is "live" - unresolved

Discussed in the legal literature - at least a little - but not overworked

Types of Comments

 Approach a particular legal issue from an interdisciplinary angle.
  • Show how insights from psychology, economics, sociology may contribute to resolving an issue
    Example:  105 Col. L. Rev. 158 (2005), Juvenile Psychopathy: The Hollow Promise of Prediction.
 
Consider the emergence of a new legal theory from recent developments in a particular area of law.
  • Demonstrate how the new theory will resolve issues in a better way. Consider applying new theory and reasoning to   former cases/law. Paradigm change as a solution.​

Explore a comparative/multijurisdictional approach to resolving an issue.

  • ­Consider home jurisdiction and foreign jurisdiction handling of same matter/issue and consider how to reconcile them
­Example:  MULR Vol 93 Issue 3 (2012)

The Inconsistent Inheritance Rights of Adult Adoptees and a Proposal for Uniformity​.

 Circuit Split:  Survey federal case law in an area where there is disagreement, conflict or transition.

Example: MULR, Vol 86, Issue 4 (2003), "Deporting Legal Aliens Convicted of Drunk Driving: Analyzing the Classification of Drunk Driving as a "Crime of Violence”

Read the material about circuit splits on the General Topic Resources tab.  Ways to find circuit splits are included there.

Consider a legal rule or institution that needs reform. 

Analyze more recently enacted legislation and offer comments, criticisms, against the current legal backdrop for the law.

  • Be careful that it does not turn into a statute note rather than a comment.  
  • These are examples, not the entire field of ways to construct a comment idea.  You can learn about other models from reading good student comments.  Take some time to browse some significant law journals. 
  • You will be writing a comment, not a case note.  A case note analyzes one case.  A traditional comment is a more thematic analysis of an issue, makes an argument, and employs more than one legal source.  Talk with your comment editor about these 
  • Note: There are some labeling differences among law journals regarding student publications. For example, if you browse the Harvard Law Review, you will find that the student comments are called Notes – but they resemble the traditional comment. (Another difference at HLR is that individual student author credit is not given for the notes published in the review.) 

How a Comment Topic Develops

Choose a subject that interests you.  Example: Environment, Water Quality

Select a topic from within the subject area.  Example:  Runoff pollution in the groundwater of Wisconsin

Identify an issue  Example: Manure contributes significantly to groundwater pollution in Wisconsin. Wisconsin agribusiness has relative freedom for large scale use of dry manure as fertilizer. Under current WI law, does the state adequately protect water sources exposed to agricultural pollutants?  And, should current law be changed, and if so, how?

Articulate a thesis.  As your preliminary research and analysis continues to focus and deepen, you will work out a very specific thesis about the legal problem you have defined and how to resolve it.  

Developing an Issue and Thesis

Possible Frameworks for a Thesis:

  •  This particular issue should be governed by a statute rather than case law. The legislature ought to enact the following statute.
  •  This case/doctrine explains/contradicts other case/doctrine, but it strayed when applying/interpreting the law…
         Example: 98 Marq. L. Rev. 467 (2015)

         A Breach of Trust: Rock-Koshkonong Lake District v .State Department of Natural Resources     and Wisconsin's Public Trust Doctrine

  •  This statute/regulation/treaty is likely to have the following side effects . . . . It should be rejected or modified to say . . .
        Example: 95 Marq. L. Rev. 1083 (2012)

    Someone's Afoot: Wisconsin's Foreign Guardianship Transfer Law

  •  Historical, philosophical, economic, psychological, or religious perspective on this law reveals that the law is flawed and should be changed in the following way(s)….