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Wednesday, August 11, 2010

Please Suggest A Note Topic

Cross-posted from thefacultylounge....

 Well, it's time for that annual ritual: the visits to faculty offices by students looking for a note topic. Many congratulations to you all on making whatever review.  It's going to be a lot of work and also some fun (I hope) and also it'll be a nice line on the resume.

So, you want a note topic.  Well, I've thinking mostly about property and trusts and estates and legal history these days, so I'm going to re-post some ideas from a few years back here at propertyprof and add a couple of new ideas in here ....

Lo' those many years ago Eben Moglen suggested a topic to me, on federalism in the Taney Court.  I am eternally grateful to him.  And over the years I've suggested a bunch of topics to students.  Some of the better ones in recent years include Amy Wilson's on the jazz influence in property law (got to read it--I'm not going to give away the punchline); Kitty Rogers' on integrating the city of the dead (catchy title, eh?); Leah Green's on the Erie Canal in American legal thought; Elizabeth Bates on statutes of limitations for reclamation of artwork produced by slaves; Chris Williams on an empirical study of smart growth; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law.  In terms of a really excellent execution of a remedies topic, I'd point you to Grace Long's The Sunset of Equity: Constructive Trusts and the Law-Equity Dichotomy.  It's darn good and it's about reconciling equity doctrine in a couple of diverse areas (injunctions and constructive trust), which I think shows a ton of both creativity and facility with doctrine.  It's a model of strong scholarship.

The key to a good student note topic is: that it's do-able over the course of the second year.  What's that mean?  First, it's a topic that hasn't yet been over-written.  That means stay away from takings (exception to follow).  Some years ago (like nine at this point) one of my favorite students of all time asked me about writing on takings.  And I said, well, spend the weekend looking at what's been done and reading (the then most recent case), Palazzolo and if you can find something new to say, let me know.  So the next week she said, "seems like everything has been taken.  [pause]  I guess that was your point."

Second, find something that's at least a little interesting.  You're going to be living with it for a while.  Third, find something that's narrow enough that you can read everything on the topic and come to a reasonable conclusion in the time you have available.  Fourth, find a topic on which you can say something about the law (this usually means finding a place where law is in flux).  It's not a great idea to rehash the arguments against a particular Supreme Court decision.  That's been argued and answered, even if you don't like the result.  (This advice applies to faculty, as well.)  The Columbia Law Review used to have a rule: you can't criticize the Supreme Court in your note.  Good advice for second year law students, I think.  Not that the Supreme Court has always done everything right; it's just that it's good to stay away from a topic on which you know going in you can't have much effect.

That means that narrow doctrinal topics are really good; brief empirical pieces, are also very good.  And I think historical pieces are ideal, because there is so much that's left to be said about legal history. Talk to people at work; often times, the best note ideas come from practicing attorneys who see issues as they're just beginning to make their way through litigation.  Some ideas below the fold....

Here are a few things that are on my mind this summer, which might be good student note topics.  Just remember, you got these ideas from Brophy.  First--and breaking the rule against takings: there are a couple of places in takings where we student work could help us.  What procedures have state courts developed to protect against abuses of public use.  Some years ago Thomas Merrill published an important study in the Cornell Law Review on this.  I think there's a lot to do with this at the state level.

Amidst all this talk about how regulatory takings hurt little people, I think there's room for empirical work on who benefits from the expanded takings jurisprudence.  I had a student write a very good paper that studied takings claims in the Fourth Circuit.  She found that virtually everyone who successfully sued was a developer.  (No surprise here, but I think there's some good work to be done on this topic--looking at reported cases and also studying the process before it reaches the courts.  Though the later is much harder.)

I think that there's some fabulous empirical work to be done on the probate process.  Last year Jason Kirklin wrote a really terrific piece that looked to Hamilton County in Indiana and examined the probate process there before the Civil War.  It provided a pointed comparison with the antebellum testators who Stephen Davis and I studied in Greene County, Alabama -- a county very different in terms of wealth.  Jason's essay (available at ssrn here) already set the model for how to do this kind of study; it's some work in terms of data collection, but you can immediately fit into a vibrant debate on who used the probate process and for what purposes.  Basically, while it's some work, you're guaranteed to get some pretty exciting stuff.  And you never know what you're find in those wills.

I continue to think that we need better measures of the contours of popular constitutional ideas.  How much did ideas in Congress in the years leading into Civil War, for instance, influence what was happening in the Supreme Court?  And how did those popular ideas relate to one another.  One could write about the "doctrine" of popular constitutionalism, but I think we could do some other even more creative things here. For instance, study quantitatively the key terms of Democrat and Whig constitutional theorists -- or get even more regionally specific and study the differences between southern Democrats and southern Whigs.  This can bring some nice precision to the nature of Constitutional thought in the years leading into Civil War.

We could use some recent empirical work on how the restatement (third) of servitudes has been interpreted by state courts.  How's the progress on replacing touch and concern with a more general "reasonableness" inquiry going?

Doctrinal notes are very helpful and are actually cited.  What are the areas of property doctrine that could use updating?  I think there's some good work to be done on recent cases on damages for breach of land sale contracts (and specific performance).  But there are plenty of places where we could use some more work, especially in property and equity (like agreed boundaries and easements by estoppel).

Property and equity is a topic of growing importance.  For instance, are we seeing state courts beginning to limit constructive trusts?  Are courts changing their attitudes towards injunctions for violations of servitudes?  Are courts invoking property rules or liability rules with more frequency?  Are they changing their frequency for invoking either?  (Grace Long's already set the model for dealing with these kinds of issues.)

You might take advantage of the miracle of full-text searching on lexis and westlaw and study how various phrases have been used.  When do courts criticize something as feudal, for instance.  Or you might take a page from Randall Kennedy's book on the n-word and make a comprehensive study of how courts have reacted to the n-word.  Quantitative legal history anyone?  

There's a ton more to do here -- like looking at citation patterns; which judges are being cited in the pre-Civil War era, for instance?  And how far do their ideas migrate?One could focus on one judge and trace out the citations to his opinions as a measure of his influence.  (What other states cite him?  What are the areas where a judge is influential?)  Or you could take a single important case and then work backwards, which judges are cited, to create a picture of how judges spoke to one another through their opinions.  There's some theoretical work on the history of the book that you'd want to work up here.  Might be a tough project, but one that could pay real dividends.

If you're thinking about case notes, I recommend a serious look at Jones v. Flowers.  There's some great work to be done on comparing the rhetoric of Jones and Kelo.  I have some comments on that here.

Eugene Volokh and the UCLA law library have a website,, which is a clearinghouse for law review topics.  That's a great contribution to the community; I appreciate their generosity; we all need to start contributing to it.   Here's another link, to Stanford Law Review's memo on note topics.  I thought you might find it of some interest.  And here is a link to University of California, Hastings Professor Roger C. Park's lengthy list of note topics.

Al Brophy

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