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Monday, August 19, 2013

Three More Takes on Novelty Claims in Legal Scholarship

I've written here before about the tendency of law review articles, and especially their abstracts, to make what I tend to think are highly exaggerated claims of novelty. Of course, novel issues or problems are bound to arise from time to time in the law in response to events, and they're worthy of attention. The first time someone is assassinated by drone, or the first time an important new piece of legislation comes along, it makes complete sense that it ought to be written about. That is one sort of novelty. It must be said that the first articles to take on these issues generally apply existing legal tools and modes of thought; the topic may be new, but the thinking isn't. (It also often turns out that even the new topic often turns out not to be as new as everyone thought, so that it's the job of a second generation of articles to come along and argue that the first generation of articles ignored earlier events. And so on.) Occasionally, to be sure, articles will come along that contain genuinely new ideas. These are very few and far between.

None of this seems to stop a wave of articles from coming out every year whose abstracts trumpet, almost always inaccurately, "This is the first article to...." As you can probably tell, it kind of irks me--mostly because any such exaggeration in scholarly work irks me, but also because some of these articles seem to trade on their alleged novelty for what counts in the business as high placement.

(Incidentally, I am unreliably informed that some authors, having achieved a decent placement through an overclaiming abstract, will then prune back the novelty claims before publication. Or I am told that this would be a sound strategy on the part of authors, whether the informant does it or not. For the most part, as far as I can tell, the overclaims of originality in SSRN abstracts seem to make it into the published articles, so it doesn't look like many people actually do this. If they do, I would consider it a violation of what I quaintly think of as scholarly integrity.)

In my ongoing effort to make sense of this in something other than a purely strategic and cynical sense, here are three quick observations about the phenomenon. (Assuming, of course, that you agree it exists.)

1) It struck me in thinking about it today that there is a kind of unspoken agreement at work in this little game concerning Critical Legal Theory. One theme of Critical Legal Theory is that legal argument commonly consists of a set of conventional polar positions or mutually opposed moves. Those moves are present, if sometimes submerged, in just about every set of arguments on just about every kind of issue. Some romantics may hold out hope that this process will result in genuine dialectical advances from time to time; others may think the response should be to reject the standard moves altogether. Many just think that these moves will continue recurring indefinitely. This is a for-blog-purposes-only caricature of this theme, of course. But that seems somewhat appropriate, because it's more or less at exactly this banal level that the theme is generally accepted, to the extent that some ideas in CLS have become normalized in the legal academy.

What struck me is that, while I think something like this idea of the existence of continually recurring standard legal moves is fairly widely accepted by self-aware legal academics, there seems to me to be a corollary rule: Though Shalt Ignore Critical Legal Theory For Purposes of Law Review Abstracts. In the abstract, it is never the done thing to say something like, "I will be making standard move X in this article," or "In an important recent article, so-and-so used theory to examine new issue Y. As expected, I will now use policy." To say something like that is self-destructive at worst and gauche at best. Instead, thou shalt pretend that no one else has ever done before whatever it is that you're doing--while quietly acknowledging your predecessors, and thus demonstrating your scholarly credentials while reassuring the reader that the idea is not so original that it lacks credibility and a pedigree, somewhere around footnote 10.

I find this striking for two reasons. First, as I wrote, I think the basic cycling-of-standard-legal-moves idea is pretty widely accepted--everywhere, that is, but in law review abstracts. Second, many of the articles that I see making extreme and erroneous claims of novelty, and sometimes placing very well as a result, are all too happy to make extensive use of CLS and other forms of critical theory in the body of their papers.

2) In doing a little reading around this, I again came across two articles that I think are required reading. I suspect the first has gotten too little attention, partly because its interesting conclusions are put quite gently, and partly because of the publishing cycle of the journal in which it appears. The first is Mark Tushnet's recent article in the fiftieth anniversary volume of the Supreme Court Review, in which he re-reads two articles from the first volume. He observes that "[t]he articles show that the questions that scholars today regard as deep were already reasonably well understood fifty years ago." The only thing that's missing from the same discussions of the same issues today, he laments, is a "scholarly temperament of engaged detachment."

The second is Richard Posner's recent reply piece in the Georgetown Law Journal on the state of legal scholarship today. (The discussion is around pages 848-50.) Posner is agreeing here with a point made by Pierre Schlag about this arguably being an age of "normal science" in legal scholarship, an age between revolutionary moments. He writes that in such an age, in which teachers are always needed but scholars perforce must also do scholarship in order to get ahead, the "academic enterprise" becomes "afflicted with perversities." There is "pressure on faculty to publish even when the scholarship that is published has no value; hence the straining after novelty, the drive for specialization, the quest for rigor, the adoption of a technical vocabulary—all methods of signaling quality that may, however, have no effect except to turn off students and other readers." That seems half-right to me. The other half, though, is that it's just these kinds of qualities in legal scholarship, including the "straining after novelty," which will attract some "students and other readers." Those readers include some articles editors at highly ranked law reviews, who understandably would like to think that they are important and live in interesting times.

I wonder if we couldn't just print out and distribute to all current law review editors a simple sign to be placed above the slush pile. It would read: "WARNING: We are currently in an age of normal science. Unless it is actually examining a new set of facts, the article you are about to read is almost certainly not novel. Note: The facts probably aren't all that new either."

3) Tushnet's article, in particular, makes me reflect once again on the fairly stunning lack of a sense of disciplinary institutional memory in the legal academy. In part, I blame Westlaw and Lexis, whose archives barely extend back to the Reagan presidency. In large measure, I think it has to do with the lack of a deep canon in legal scholarship, or of much of an education in that canon by most law professors. Whatever the reason, I wish more law professors--and articles editors--would spend less time polishing absracts and more time reading Ecclesiastes.  



Posted by Paul Horwitz on August 19, 2013 at 11:51 AM in Paul Horwitz | Permalink


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This is a very original blog post, Paul!

Posted by: Miriam Cherry | Aug 21, 2013 10:39:20 PM

Though Shalt Ignore . . ? (You mean "thou," right?)

Posted by: WT` | Aug 21, 2013 11:44:53 AM

My second comment effort was also swallowed, Marc. Perhaps the technical machinery is contained in this Blog if one includes a URL. So those interested in your first post should Google:

The Review Essay (or, Against Novelty) + Marc DeGirolami

to access this 5/2/09 post of yours.

As I noted in my two deleted comments, I am an 83 year old Luddite and expect more from young whippersnappers at legal academic blawgs, and that the only conspiracy is between NSA and Great Britain's new Miranda Rule.

Posted by: Shag from Brookline | Aug 21, 2013 7:05:47 AM

Plus one to Professor Schwartzman's comment. My very first post on this perennial Prawfs chestnut four years ago was called "Against Novelty."

But it is only fitting that the technical machinery is preventing me from linking to it. Technology is conspiring with the other forces of evil out there to ensure that no one will remember it. What do you expect from a legal academic blawg?

Posted by: Marc DeGirolami | Aug 21, 2013 12:03:31 AM

This is a problem checked in other disciplines by peer review. I've not done this, but I suspect that a review of abstracts in Legal Theory, JLS, OJLS, etc., won't turn up the same types of novelty claims. The legal academy has plenty of "disciplinary institutional memory," but the law reviews don't. More peer review ...

Posted by: Micah Schwartzman | Aug 20, 2013 10:19:56 PM

I tend to underclaim out of fear that there is some article or book out there, somewhere, that has made the claim that I am advancing, particularly since I write about the Fourteenth and Fifteenth Amendments. I recently learned that underclaiming can hurt young scholars (like myself) because you are not "selling" your article, although I am not sure if it hurts more or less than overclaiming. With my recent draft, an established scholar told me that he had not seen anyone make the argument that I was advancing, at least in the context in which I was advancing it. I had suspected this was the case, but once someone else cosigned on my intuition, I felt comfortable saying, in the abstract, that the "this is the first article to..." But in making this statement, I limited it to the specific debate that I was addressing, i.e., "in the debate over whether the voting rights act is constitutional, this is the first article to [do x]." I think that people fall victim to over claiming because they broadly present their argument as the first of its kind, which probably isn't true of any legal arguments anymore. But one also has to be careful about underclaiming, which in my view, can lead to articles being underplaced.

Posted by: Franita Tolson | Aug 20, 2013 11:18:41 AM

Were "novelty claims" prevalent pre-blogs? Perhaps there is a celebrity gene among some legal scholars.

Posted by: Shag from Brookline | Aug 20, 2013 8:47:11 AM

Extra-charitable halfhearted defense of the practice: we don't really have a good idea of what "novelty" means, anyway. If someone said X before, but less clearly, or made a less good argument for X, or the someone was in 7th-century Scotland and nobody paid attention, does that count as novelty? Is novelty relative to a particular discipline or literature---if something from anthropology gets imported into law, is that novel? Some of these exaggerated claims of novelty might just be areas of reasonable disagreement about the concept.

Also, this sentence reveals one of the more annoying tensions of academia, particularly the legal academy:

Instead, though shalt pretend that no one else has ever done before whatever it is that you're doing--while quietly acknowledging your predecessors, and thus demonstrating your scholarly credentials while reassuring the reader that the idea is not so original that it lacks credibility and a pedigree, somewhere around footnote 10.

Legal academics in this way are beset by contradictory demands. Say something novel! But make sure every single sentence has a footnote! One or the other must go; is the structure of the law review system responsible for these instances of overclaiming? Authors must claim both originality and footnote-ladenness, the two are not compatible, so one must be an illusion; 2Ls are competent at evaluating footnote-ladenness but not at originality, therefore, if one of the two must be an illusion, better to lie about the originality one?

(now, do I want to go read Posner on Kuhn? hmm...)

Posted by: Paul Gowder | Aug 19, 2013 4:18:25 PM

Another question is how reviews treat overclaiming in the tenure or promotion process. My experience is that most overclaiming is treated as puffing to be ignored or at worst a disappointment, e.g., "The author claims that the article will provide the cure for cancer. It does not, though it does make a valuable contribution in informing readers how to procure Tylenol for a headache..."

I think it is rare for someone to give an outright negative review on the grounds that overclaiming is intellectually dishonest or that there is something wrong with a publication that promise X yet delivers 1/1000 of X or Y. Overclaiming seems to be a cultural norm that we've already agreed to stomach.

On the flip side, when I'm researching a topic, I hate having to judge whether an abstract is overclaiming, and it's frustrating to scan a 30,000 word (or more) piece to see if it actually provides for support for the thing it is claiming.

Posted by: Anon Prof | Aug 19, 2013 2:04:28 PM

Three thoughts:

1. Paul writes: "I think the basic cycling-of-standard-legal-moves idea is pretty widely accepted." I'm not so sure. It should be accepted, but I don't think it is so widely understood.

2. My sense is that authors vary in their ability to recognize that their ideas have been said before (often many times). Some are surprisingly poor at it.

3. I think some amount of the repetition found in law reviews reflects scholarly goals beyond the discovery of new ideas. For example, in some areas, scholars see themselves as activists as well as scholars; repeating an argument that had been said before dozens of times is seen as a way of keeping the drum beat going and helping the cause achieve the needed reform.

Posted by: Orin Kerr | Aug 19, 2013 1:42:52 PM

Thank you, Michael! Yes, I must acknowledge (and this is also partly a response to Will) that the strong-novelty-claim strategy may be a high-risk, high-gain scenario, resulting sometimes in overplacement and many other times in a paper being *more* likely to be rejected by one's desired journal.

Posted by: Paul Horwitz | Aug 19, 2013 1:13:52 PM

BrianK: Obviously the answer to your question is "no." I suspect this is true in a large number of scholarly fields, in fact, and for a variety of reasons, not all of them blameworthy. In any event, I hope it's clear that I am taking on a narrower set of issues, not the whole question of the point of (legal) scholarship altogether. Perfectly valid set of questions, but I don't address them here.

I think your first sentence is overstated, however, even leaving aside how we value what constitutes something "worth reading." The problem is not that there is no pressure to publish quality work. It's that this sector of the academy shows demonstrates consensus about how to judge quality work, and that even if serious people make serious judgments about the quality of legal scholarship, they must do so post-publication, both because it's easy to get published somewhere and because "good" articles appear in "bad" journals and vice versa. Whether an article gets published or not in a law review, and where, are not very effective proxies in our discipline.

Andrew: I do see that from time to time. But I don't get the sense that there is a large number of ironists of that particular sort either in law teaching or in law review offices.

Posted by: Paul Horwitz | Aug 19, 2013 1:11:52 PM

I overclaimed once (with the intent of removing the claim after getting an offer), and a top journal later sent it out for peer feedback. One anonymous commenter noted that I had overclaimed, and I felt so humiliated that I've never done it again (at least consciously!).

Posted by: Michael Risch | Aug 19, 2013 1:03:51 PM

Maybe it is just me, but if I were a law review editor, I would be thrilled to see an article/abstract that performed one of the standard moves with skill but was also self-critical (and even self-mocking) about the degree to which the moves are pre-prescribed.

Posted by: Andrew Siegel | Aug 19, 2013 12:53:29 PM

There has long been pressure to be 'published' without similar pressure to publish quality, or research worth reading. Would anyone notice if a significant amount of law review articles suddenly disappeared?

Posted by: BrianK | Aug 19, 2013 12:45:30 PM

Somebody looking for a novel (sorry) research project should run a controlled experiment, where the same articles are submitted to a range of journals, with overly aggressive claims of novelty to half the journals and none to the other half. I'd be curious to see whether aggressive claims of novelty actually help placement.

Posted by: William Baude | Aug 19, 2013 12:34:19 PM

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