What Actually Makes a Topic Publishable?
Three things: the question is unresolved, no one has already answered it your way, and you can say something normative about it in roughly 30 pages. Notes editors reject topics that fail any one of these, and they reject the vast majority of submissions that are merely descriptive. A survey of how eleven circuits treat qualified immunity is a research memo, not a note. A note argues that one approach is right and the others are wrong.
"Unresolved" means there is a live disagreement among decisionmakers whose views matter — federal circuits, state supreme courts, district courts within a circuit, or courts and an agency. If every court that has considered the question agrees, you have no fight to referee unless you are arguing they are all wrong, which is a harder note to write and requires stronger materials (legislative history, original public meaning evidence, empirical data).
"Manageable" means the primary sources exist and are in English and accessible. If your topic requires interviewing agency staff, coding 400 dockets, or reading untranslated foreign judgments, you will not finish by your journal's deadline while also taking 14 credits.
Where Do You Find Candidate Topics?
Stop brainstorming from your own head. Topics come from places where courts announce that they disagree or that a question is open. Work these sources systematically for two weeks and generate fifteen candidates, not one.
The highest-yield source is a recent Supreme Court opinion that decides one question and expressly reserves others. After the Court overruled Chevron in Loper Bright Enterprises v. Raimondo (2024), it left open how much weight Skidmore respect actually carries and what happens to the thousands of holdings that rested on Chevron deference. Corner Post v. Board of Governors (2024) reopened when APA claims accrue and left the downstream remedial questions unsettled. Mallory v. Norfolk Southern Railway (2023) upheld consent-by-registration personal jurisdiction but flagged an unresolved dormant Commerce Clause challenge. United States v. Rahimi (2024) applied the Bruen history-and-tradition test without telling lower courts how close a historical analogue must be. Each of those reservations has spawned splits.
- Circuit split trackers and the certiorari-stage coverage on SCOTUSblog; petitions almost always frame the split for you.
- Dissents from denial of rehearing en banc — judges write those specifically to advertise a conflict.
- New federal statutes and final rules with a compliance date but no litigation yet, and state statutes copying a model act.
- Concurrences that say "in an appropriate case we should reconsider."
- Restatement and Uniform Law Commission drafts, where reporters' notes catalog jurisdictional conflicts.
- Practitioner blogs and CLE materials in a field you worked in last summer — you already have the background knowledge others lack.
How Do You Run a Preemption Check?
Preemption means someone already published your argument. Run the check before you invest, and document it — most journals require a preemption memo listing your databases, search strings, and dates. Search HeinOnline's Law Journal Library, Westlaw and Lexis secondary-source databases, Google Scholar, SSRN, and your library's index to legal periodicals. Then use citing-references tools on the two or three key cases in your area and read every article and student note that cites them.
SSRN matters most, because it shows forthcoming work that will beat you into print. Also check the faculty at schools whose journals publish in your area, and check your own journal's pipeline — editors will not run two pieces on the same question.
Search by concept and by fact pattern, not just by case name. If your topic is whether a particular fee-shifting provision survives after a recent decision, search the statute section number, the doctrinal label, and the underlying scenario separately. A hit on the general subject does not preempt you. You are preempted only if a recent piece makes your specific argument about your specific question. If an article addressed the issue in 2016 and the law changed in 2024, you are fine — you now have your framing: why the old answer no longer works.
Re-run the check before you submit your final draft. Nothing is worse than a competing note appearing in October when your piece is set for the spring issue.
How Do You Turn a Subject Into a Thesis?
A subject is "the Computer Fraud and Abuse Act." A thesis is a sentence with a verb and a should. Use this template until you outgrow it: "Courts should hold [rule] when [narrow fact pattern], because [reason grounded in text, precedent, or consequences]." If you cannot fill it in, you have a subject, not a note.
Your prescriptive contribution can take several forms. You can pick a side in a split and explain why the losing side's reasoning fails on its own terms. You can propose a new multi-factor or bright-line test and apply it to the cases that produced the split. You can propose statutory or regulatory language. You can apply settled doctrine to a genuinely new context — a technology, a business model, a novel remedy. You can argue that a doctrine rests on a historical or textual mistake, if you can do the historical work.
Test the thesis two ways. First, can an intelligent reader disagree? If no one could take the other side, it is not an argument. Second, does your thesis survive the strongest counterargument? Write that counterargument out in a paragraph before you commit. If it flattens you, pick a different topic now rather than in month four.
What Topics Should You Avoid?
Avoid whatever the Supreme Court decided six weeks ago that everyone in your section is excited about. In any given year several hundred student notes chase the same two or three blockbusters, and the marginal contribution approaches zero. If you must write in that area, go two steps downstream: not the holding, but a specific application question the holding created in a niche statutory context.
Avoid topics that depend on a pending decision. If the Court granted certiorari on your question, your note will be obsolete before publication. Either pick a different question or write about the second-order issue the coming decision will not resolve.
Avoid topics whose only sources are news coverage and advocacy reports. If you cannot build a footnote apparatus from cases, statutes, regulations, and legislative history, journals will read the piece as an op-ed. Also avoid pure policy topics with no doctrinal hook, and avoid writing about your own grievance — the tone almost never survives editing.
How Much of This Varies by School and Journal?
A lot, and you need to read your own journal's notes handbook before doing anything else. Some journals require a topic proposal and preemption memo by a fixed date in early fall and will reject topics outright; others let you write first and vet later. Some maintain a topic bank curated by the notes editors or faculty advisors. Length requirements commonly run 25 to 40 pages or 10,000 to 15,000 words including footnotes, but specialty journals often run shorter.
Publication is the biggest variable. At some schools every staff member's note is published; at most, notes compete for a small number of slots, and a certified note that never publishes still satisfies the journal's membership requirement and any upper-level writing requirement. What drives the difference is page budget, journal size, and whether the note doubles as a graduation requirement. Ask a third-year editor what percentage of last year's notes ran.
What Should You Do in the First Two Weeks?
Generate fifteen candidate topics from the sources above. Spend one hour on each, running a fast preemption sweep in HeinOnline and SSRN. Kill twelve. Draft one-sentence theses for the remaining three and take all three to your notes editor — editors give far better feedback on three concrete options than on "I'm interested in antitrust."
Once a topic is approved, cite in Bluebook form from your first note-taking session; converting hundreds of footnotes later is a real cost. Periodical citations follow Rule 16, and student-written material carries a designation such as Note or Comment before the title under Rule 16.7. Use the table abbreviations for journal names and case names rather than guessing. Save a PDF of every web source the day you find it, because journals increasingly require an archived link and dead URLs will be your problem at cite-check.
Build a footnote-first outline: for each section, list the authorities that will support it. Empty sections in that outline are the parts of your argument you cannot yet prove, and they tell you where to research next.