The Very First Empirical Study of Novelty Claims in Law Review Articles

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Over at Prawfs, Paul Horwitz has a post on the rise of novelty claims in law review articles.  A novelty claim is an author’s claim that the article is the first article on Subject X, or the first article to address Subject Y.  Law review authors, especially junior authors, sometimes include such claims to try to establish that their article is novel and therefore something new that adds to the body of scholarly knowledge.

Paul finds a surge in such claims, at least based on a quick-and-dirty Westlaw query. The annual numbers have jumped from about 25 articles a year twenty years ago to about 200 articles a year today.  Paul comments:

At back of a great deal of this, of course, is law review editors and their inevitable lack of discernment, for which a novelty claim serves as a substitute. But they need only accept their fair share of the blame. Law professors do not always have a broad range of knowledge or a deep education in their own academic profession. They forget the scholarly past, if they ever learned it. And they are called upon to judge candidates across a range of subjects far from their own expertise. (Perhaps they shouldn’t be. It’s not clear to me that the whole faculty should have an equal vote on all candidates regardless of subject matter.) They may be just as eager for the same proxies. They may prefer bad ones to none at all. And, in my view, however much they may know and profess to know that most such claims are unwarranted and strategic, they (like the rest of us) can easily fall prey to the habit of expecting such claims simply because they are the norm and of believing them more than they know they should. We forge the chains we wear in life, and soon stop seeing them as chains, if we see them at all.

9) My view of all this, obviously, is at best jaded and at worst despairing. But let me end on a somewhat more positive note. I find the numbers given above depressing, in part because of what they say about the system and its determinants and in part because I think writing, scholarly or otherwise, should be a unique expression of personality. (And also, of course, because the sentence is often insincere and rarely true.) But, as I suggested above, perhaps the growth of the phrase and its mechanical invocation is a function of the fact that there is more competition among a much wider range of legal scholars, writing in a large number of fields and methods and coming from a large number of backgrounds. In some ways, and perhaps slightly counter-intuitively, one may be freer to be distinctive and eccentric in a smaller, more closed and elitist system, in which idiosyncrasies are more accepted because everyone already knows everyone else and everyone’s work is read more closely and evaluated in a more individualized fashion because there are fewer people and less writing to sort through (and/or because the primary sortition in such a world occurs at the level of distinguishing the establishment from everyone else). Maybe the bureaucratization and standardization that a phrase like “this is the first” represents, even if those who write it don’t see it as such, is just a way to deal with a larger, more specialized, more diverse universe of scholars. That’s cause for good cheer. It’s just unfortunate that it doesn’t seem to be an especially good or honest way or one that makes for good reading.

My advice to law review authors, especially junior authors, to the extent anyone cares, is to be wary of making direct novelty claims (“this is the first article to…” etc.).  If you feel it’s accurate, feel free to make a direct novelty claim in the draft you submit to journals. But consider changing it to avoid that formulation by the final version.  Your article should be novel, of course.  But it’s best not to be the one to proclaim it. It’s something like writing in an introduction that “This is a really great article that you’ll learn a lot from reading.” Sure, you want that to be true.  But you’d sound amateurish if you actually wrote that. An alternative might be to say something like, “This issue is particularly important because it has not been addressed in prior scholarship,” adding a footnote to what else similar is out there, showing why it’s not on the same. You can make the point, but I would recommend avoiding the direct novelty claim formulation.

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