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Monday, December 13, 2021

"The First"

Among the most-played tunes on my broken record is my criticism of the "novelty claim" and my fascination with what it says, not about novelty as such--I rather doubt the phrase says very much about that--but about the practice of American legal scholarship: its norms, tactics, motivations, means of advancement and accumulation of prestige, and so on. I thought I'd take a look at the frequency with which the phrase "this article is the first..." or "this is the first article..." appears in law reviews. Here are some results from a search of Westlaw's Law Reviews and Journals database by year:

2021 (to date): 142

2020: 195

2019: 163

2018: 162

2017: 171

2016: 152

2015: 178

2014: 127

2013: 124

2012: 106

2011: 80

2010: 69

2009: 72

2008: 71

2007: 41

2006: 40

2005: 32

2004: 23

2003: 34

2002: 28

2001: 26

2000: 27

1995: 12 

1990: 12

1985: 5

Obviously the whole thing is rather unscientific. I didn't check that each usage was a novelty claim or that it came from a law review rather than from other publications that appear in the database, such as bar magazines. In the aggregate, however, it's rather suggestive. A couple of points:

1) I did do some spot-checking. The further back one goes, the more likely it seems to be that the phrase is not in fact a novelty claim. Take 2003. That year, the two variations of the phrase appear 34 times. But if one removes the noise--phrases, typically appearing in bar magazines and other monthly service publications, such as "this is the first article in a three-part series" or "this is the first article by our new columnist"--the number of actual novelty claims using the phrases goes down to 14 for that year. 

2) As one can see, the growth appears to be somewhat stepwise, with the numbers jumping from time to time and then stabilizing in that area for a while. (With the year not yet out, I am guessing this year's final total will be somewhere between the 2019 and 2020 numbers.) Perhaps some linguistic virologist out there has written about how frequent this pattern is in language in general.

3) My speculations about this phenomenon are just that: speculations. Here are a few. A) Perhaps it's wholly adventitious. B) Perhaps the use of the particular phrase is adventitious, and one could go back and find other phrases, used just as often, that used to make the same novelty claim in different words. It would still be interesting that the norm has hardened around this particular, mechanically repeated phrase. C) Perhaps--but, again, I doubt it--it signals a real change in the amount of novel legal scholarship. D) Perhaps it reflects the growth of interdisciplinary scholarship, insofar as the journals may be printing articles that are the first empirical study of X in a law review or the first to apply methodological tool A to issue Y. E) Perhaps it is mostly a matter of competition for space and prestige, caused by both the torrent of article submissions and the vast universe of law journals of varying prestige levels.

4) If competition for prestige placement is the reason, we might reflect, given the dates, on the influence of three factors. One is the increase in the amount of lateral hiring. Another is the increase in the number of fellowships and other proxy-doctoral/postdoc programs. Both of these reflect the same thing at different career stages: the competition for hiring or advancement. The third is the size and (along some dimensions) heterogeneity and diversity of the legal professoriate, in which sheer numbers mean that names, institutions, and networks only get you so far. 

5) Again following on this point: the possibility that the growth in the standard novelty phrase reflects a competitive move does not mean the move works. I have not checked whether these claims appear more often in the Stanford Law Review or the Podunk Journal of Marine Insurance Law & Policy. Nor do I know whether a novelty claim makes the difference between getting published by the former or the latter. (I am assuming that, according to the norms and prejudices of our profession, placement in the former is preferable to placement in the latter.) I rather doubt it. But perhaps it is possible that a novelty phrase makes the difference, at both journals, between getting read at all and being placed almost immediately in the reject pile. I also do not know whether authors who make novelty claims are more likely to do well in entry-level or lateral hiring than other authors--and if so, whether it is because of the novelty claim as such, or because the presence of the novelty claim shows that they already know how to play the game. 

6) It does strike me as possible that what makes the difference in such a first-stage consideration of an article submission, apart from what ought to be but are not extraneous factors, such as the author's resume, is not the fact that this phrase appears, or even that a novelty claim of some sort appears, but that the author has provided, high up in the piece, a clear statement of some kind indicating why the article is worth reading. That still leaves open the question whether articles editors recognize the various reasons besides raw "novelty" why an article might be worthy of further consideration, or whether they have reduced their culling inquiry to the question of novelty vel non. (Again, apart from influential and improper sorting mechanisms such as resumes, which may dwarf the question of whether or not the article clearly explains why one should read it.) 

7) Apart from competing for prestige placements for hiring purposes, I wonder--another tune from the broken record--what role fellowships have in another sense. I gather that one piece of the fellowship process is the sharing of techniques and tactics, whether from a top-down level by program directors or mentors or horizontally through exchanges of wisdom, lore, and rumors among the fellows themselves. At some point it may not matter whether the novelty phrase works: it is simply part of their acculturation. They use it, and later (alas) encourage newer fellows or more junior scholars to do the same. Perhaps they pick up the idea from younger friends who are on prestige law reviews, and in turn the law review editors there and elsewhere come to expect it. The herd elsewhere inevitably follows suit; as writers, we are not a terribly original or independent bunch. And thus we move from 80 uses to 180 in the span of five years. It is worth thinking about whether all the advice given in such programs is actually all that good predictively, quite apart from whether it is a good or bad thing for legal scholars and their development or for legal scholarship. (And it might be that much or most of that advice is far less important than having the fellowship on one's resume, an article or two in print or on hand, and a raft of inflated references. If so, perhaps fellowship program directors should treat this as a reason to feel liberated to tell fellows to disregard most of the strategic advice they offer each other, or that their mentors offer, and just follow their muse wherever it leads.) Perhaps the advice is not so much good as it is self-reinforcing and self-perpetuating. It is hard to underestimate the centrality of tradition, fashion, ambition, and conformity among academics and intellectuals, at all levels and regardless of claims to be anti-traditional, iconoclastic, speaking truth to power, or what have you.

8) 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. 

Posted by Paul Horwitz on December 13, 2021 at 03:02 PM in Paul Horwitz | Permalink


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