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Tuesday, February 18, 2020

The Missing Element in "This is the first article to..." Sentences

I have written all too often questioning the standard "novelty" or "this is the first" line in law review articles, on multiple grounds, such as: 1) It is often, and fairly explicitly, merely a crass form of marketing; 2) it is often at best only somewhat true, both in terms of current work and especially if one goes past the date at which most law reviews are included in the most popular databases and looks at pre-1980 scholarship; 3) not every important question is a "novel" one, and law review editors ought to be looking for important discussions, some of which are "novel" and some of which are not; and 4) there is a tail-wagging-the-dog aspect to the whole trend, in which scholarship becomes driven by placement tactics instead of placement being driven by scholarship (or, better yet, scholarship being driven by itself and evaluated on its own terms instead of where it lands, and to the devil with placement).

So it is appropriate that I find myself being punished by working on an article that does indeed seem to explore a "novel," "curiously under-explored," etc. topic. (Even so, as I have asked around to confirm with reliable scholars that it is indeed seriously under-examined, I have found at least one other person working on the same question and a couple of others writing about it online. This should be no surprise. Questions that are novel and important are bound to attract attention; what is then important is not the race to be first past the post, but that the topic be discussed thoroughly and well.) 

In doing so, I find myself asking why the question, which is not hidden or obscure, has not been discussed, or has been discussed so little. And I am led to the conclusion that something is missing from most "This is the first article" or "novelty" claims that would greatly enrich the articles they come from and lend some perspective to the "firstness" of any such scholarship. What's missing is a discussion of why (to the extent that the claim is actually accurate) the topic has not been discussed before. 

Sometimes the answer is obvious. A new case or rule or doctrine or statute has emerged. Even there, it rarely develops out of whole cloth and there is probably a good deal of scholarship on the basic issue. But at least there is a new official legal element of some sort. Or a new fact about the world--a new technology, a new disease, or something else--with legal implications has come along. Or a new line of thought has emerged in some other discipline, one that is only five or ten years old in that discipline, but which has not yet been fully applied or exploited in legal scholarship. (Again, one often finds that some perspicacious scholar has already noted the existence of that line of scholarship. Most legal discussion of "behavioral law and economics" or "behavioral analysis" or "biases and heuristics" dates to the late 1990s. But serious discussions were around as early as 1985, and the first reference I found to Kahneman and Tversky in a law review dates back to 1974.)

But sometimes the reason is none of these. Therein, at least sometimes, lies a puzzle. Why did some relatively obvious and non-trivial question, one often hinted at or mentioned in the existing scholarship, never get a proper examination? It seems to be that: 1) the answer will depend on a multitude of legitimate and more questionable factors--social currents, professional incentives, elite sentiment, reluctance to disturb a beneficial established or developing legal order, a "sufficient unto the day" attitude, the state of contestability of some question and its movement from being "taken for granted" to being "up for grabs," and so on; and that 2) even if no single or definite answer can be reached as to why the question has been left untreated, it's something worth exploring.

It's a "meta" question, to be sure. Some scholars may shy away from such questions or see them as distractions or imponderables. I suspect they are also seen, unconsciously or otherwise, as complicating and/or undermining the selling value of the novelty claim as a marketing device. (I cannot help but see that as a feature and not a bug of such a question.) But I should think that at least in some cases, and perhaps in many, trying to answer this question will reveal interesting features or aspects of the "novel" question. It may say something about legal scholarship as an enterprise. But it may also say something about larger social, political, and legal currents, about the boundaries of "acceptable" questions, and about when and why some questions are seen as significant or insignificant, relevant or irrelevant, important or trivial. It may say a great deal about how elite networks or circles think and act, about what they see--and about what their position and perspective blinds them to seeing or deters them from discussing. 

I would love it if every law review article that insists on making a novelty claim at least included a footnote--in addition to the "honorable exceptions" or "here's how I distinguish the following articles that also discuss this topic, so that I can maintain my novelty claim" footnote--that attempts to give some reason why "this is the first article to" do something or other. As I suggested, sometimes the answer will be short, accurate, and obvious. Sometimes it may raise doubts about the novelty claim itself; surely, if the author is not then impelled to remove the novelty claim, the piece will at least be more appropriately candid. In other cases, however, the answer may be interesting and important enough to affect our understanding of the issue and perhaps alter and enrich the author's own discussion. At a minimum, "Why is this article the 'first?'" is a useful question for law review editors to ask. It may lead them to doubt the author's claim; but in some cases it may also lead to useful questions and comments to the author as he or she develops the article and goes through the editing process. 

Posted by Paul Horwitz on February 18, 2020 at 11:15 AM | Permalink

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