The post I wrote below about cycles and eternal returns in public law scholarship, and the wonderful exchange I got to have with a commenter on that post (thanks again; you made my morning), leads me to reflect on two things.
The first is simple enough. In hiring new law professors, committees and faculties often place a high premium on originality. This has much to do with the increasing availability of writing on the part of candidates and the insistence that they have a fully worked-out job talk. Compare this to stories of hiring in the past, particularly at elite institutions (for examples, see Julius Getman’s wonderful memoir, or Steven Breyer’s recent GW piece discussing the genesis of one of his early articles, or the memoirish piece by Joe Vining in a recent symposium dedicated to him). Once, a “likely fellow” might have been hired on the assumption that he could follow his muse where it took him; originality did not need to be proved up front. There were problems with this approach: 1) it was elitist, and based on few criteria at that; and 2) although we can focus on the Breyers and Vinings, we must remember the number of scholars chosen in this manner who quickly rose to mediocrity and stayed there. I prefer the current approach. But too much focus on originality, particularly when it often really means novelty or Farberian “brilliance,” can miss much. I would rather that we look for a curiosity and independence of mind that suggests that a scholar will add value over the long run, following her train of thought wherever it takes her and without fear.
Second and more central to this post is a recent phenomenon I have noticed in law reviews and on SSRN: the dreaded “originality graf.” Every article now seems intent on including high up a paragraph that not only establishes (or argues) why the article is important, but why it is original. And not just original, but why no one, in the history of scholarship in this area, has spotted this “neglected” or “crucial” issue or problem. I hardly need add that these paragraphs are sometimes the height of grandiosity or hubris. This trend has several problems:
1) It’s rarely true. Again,read your Ecclesiastes, please. If one digs back a mere hundred years or so, one may find that the issue was indeed discussed in one way or another. If one looks even closer still at hand, one may again find recent examples of scholarship discussing precisely this question, even if the focus in some way differs. I can’t recall how many originality grafs I’ve seen that then drop a footnote with a long “see also” that demonstrates that the piece at hand is nowhere near as original as the author pushily asserted in the main body of the text. They may try to distinguish those pieces, but absolute and true originality is understandably rare.
2) Originality and importance are not always the same thing. Some “original” pieces are only trivially original, or are absolutely original but on a trivial point that is not worth the space devoted to it. The same author will then often make inflated claims about why this trivial point is actually far more important than anyone realizes. Those claims are rarely very convincing.
3) It’s perhaps an unhealthy emphasis to push on new scholars. There is good reason to think that they ought not start off by doing more than they’re yet capable of. Finding new problems is one way to address this. But that doesn’t mean they should have to convince themselves of the need to find novel and important questions. One understands the desire to place well, but surely there is not only room but need for junior scholars to focus on pieces that are narrow enough to suit their skill sets and answer questions that have been left unanswered by their seniors (who often end up gravitating to big picture pieces that leave many important questions unanswered), but that are not truly “important.” Surely filling in the details is an admirable place to start, and one that is useful for legal scholarship as a whole.
4) It leaves the evaluation of the originality and importance of an article in the hands of non-experts. Now, law reviews are increasingly farming out preliminary evaluations of this kind to professionals, and more power to them (although many of those judges have themselves been infected over time by the same lure of originality). Still, it’s fair to say that neither the young author him- or herself nor the law review editors are necessarily the best judges of originality or importance.
5) It asks the wrong questions. Originality can certainly be valuable, and importance can certainly be, um, important. But I value more the idea that the author has something interesting and valuable to say, and that his or her approach is suitable to the topic–to its relative greatness or lack of greatness, the relative scarcity or depth of pre-existing material.
I doubt we will get rid of this graf, and of course it has some purpose. But I do wish everyone could tone down their originality grafs a great deal, and appreciate that a question well-asked and well-answered is more important than being the first person to stand on a distant mountain that has no foot traffic because it deserves none. Law review editors, I think, should view these paragraphs with great skepticism rather than, as a matter of practice, demanding that the author put it in his abstract, his proposal, or especially his final piece. And they should, at some point, have a useful discussion en famille about whether it’s really what they should be looking for. They might ask instead: Is this piece thoughtful? Thorough? Suggestive? If it deals with a narrow question, does it do so well and completely? Even if it purports to be “original,” does it demonstrate enough historical perspective to look for and relate the predecessors to the “original” question being asked? “Original” or not, does it usefully answer an interesting question, or will it provoke useful further conversations?
Of course, these questions are more wide-ranging than just looking for novelty, and I suspect (as with word limits) that whatever the value of novelty or originality, looking for an originality graf has become a proxy, in the absence of more qualitative judgment on the part of the editors, that helps them decide whether to put a paper on the “read” or “reject” pile. That’s understandable but insufficient. There is probably nothing new under the sun, and in any event not all that’s new is terribly important or worthwhile. (And, while I’m at it, all that glitters is not gold.)
Posted by Paul Horwitz on January 22, 2012 at 12:41 PM
Comments
One last point, if I may, one that relates to the post I put up this weekend about the lifecycle of the constitutional scholar (and I suspect the scholar more generally); I won’t put up a link but it can be found easily enough. This also relates to the chicken-egg question of whether junior faculty, law review editors, or both are particularly culpable of this kind of behavior (at least the overclaiming aspect of it).
It does seem to me, as I wrote, that when one starts out in the field one often burns with the conviction that one has found a new issue and a new approach to it. And that may be relatively true if one’s primary resources are, say, from the last 30 years of scholarship (ie., roughly when most WL databases stop). But the longer one goes, the more one finds discussions from years–sometimes centuries–back that bear on the discussion; the more one finds predecessor issues that in many respects reflect the same paired oppositions found in the contemporary debate; the more one is drawn, not to current scholars, but to the ghostly figures behind them; and so on. Of course things change in important respects: newer social scientific tools are found with which to examine these issues (but before one reads Kahneman, one might want to read Adam Smith or Hume or Herbert Simon), there are changes in fact and law, etc. Clio is not the only guide here; Techne is relevant too. Nevertheless, I do believe that the longer one works on these issues, the more apparent the real breadth and depth of the great issues, and the history behind them, becomes. So I do think there is something to be said for the idea that Gide or Ecclesiastes get something right, and that the longer one does this work the more one is driven to emphasize that rather than pure “novelty.” It would not be surprising if these notions were more strongly felt by people who have been in a while as opposed to law students and junior professors. Nor is it entirely unfortunate: one of the advantages of youthful blinders is that they give one energy and focus for the race from the beginning; it could be dispiriting when starting out to be too convinced that it has all been said before.
Posted by: Paul Horwitz | Jan 24, 2012 8:25:49 AM
“Everything has been said before. But because nobody listens, we have to keep going back and beginning all over again.” But maybe Gide is unfair. It’s not that nobody listens; they just can’t remember.
Posted by: Marc DeGirolami | Jan 24, 2012 8:07:46 AM
Dan, I’m fine with that, but I think part of the point that I had in mind, and that Marc and Tamara, as I read them, would agree with, is that the kind of “originality” that is often claimed or overclaimed in originality grafs can be an overly narrow one. Fred Schauer recently wrote a great paper on two chapters of Mill’s On Liberty. The subject has been covered before, God knows. But I thought his thinking on the material original in its insights. What I often see in the originality grafs I’ve run across recently–and perhaps the authors then delete them before publication, but I’m not sure how I feel about that–is a claim that no one has ever spotted a particular issue or solution before. These are almost always overclaims, but they also seem to assume that if someone has written about something before, any new writing on the subject is preempted or unnecessary. Given the sheer number of legal issues that are perennials, the point of originality is not that nothing have been said before on an issue, but that there is something new that is worth saying, some insight that aids our understanding of an issue, whether that issue is new or a chestnut. And sometimes that sometimes new is a gloss on what has been said before, or an effort to point out the value of an argument that has already been made but not properly worked out or that has been unduly ignored.
Posted by: Paul Horwitz | Jan 24, 2012 7:32:16 AM
I want to chime in with a hypocritical and half-assed and too late dissent on this post. There’s an ambiguity in Paul’s original post about whether the villain is the claim to originality or the overclaim about the scope and intensity of the originality. Sussing that out is helpful. The problem has to be the latter, not the former. Indeed, I think law review articles as well as philosophy journal articles that fail to explain, from the author’s perspective, what is important and original about the piece are largely deserving of not being published.
Of course, people who intentionally overclaim should be shot when the revolution comes. But those standing next in line for execution should be those who didn’t understand that they should not be wasting the time of their readers b/c they failed to care and determine if they are in fact saying anything important and original.
I had a bunch of other things i was going to say in a huff, but deleted them. They were mean and unoriginal. But I’ll stop with this: please remember to think about your readers and their time. Don’t waste that time; don’t publish unless you think you’re advancing the conversation and can show how and why. If you’re not advancing the conversation, go do something helpful for others: give them a lift, buy them a drink, teach them a class. But for g’d’s sake, man, stop spilling ink.
Posted by: Dan | Jan 24, 2012 12:28:12 AM
Marc, I stand by my claim. A review that does not say something original about the work or works being reviewed should not be published. That originality can consist of a novel presentation of the ideas, or a novel arrangement of the ideas when the review covers many works. But there has to be something.
Posted by: James Grimmelmann | Jan 23, 2012 11:13:58 PM
Of course the problem is an obsession with originality per se: http://prawfsblawg.blogs.com/prawfsblawg/2009/05/the-review-essay-or-against-novelty.html
I think the problem has less to do with the medium (law reviews) than with our own collective sense of what is important — and so I guess I disagree with James’s comment that the “sine qua non” of scholarship is originality. I doubt that there is a single secret sauce, but if there were, for me it wouldn’t be a piece’s originality, but the composite qualities of saying something interesting and true, coupled with a distinctive manner or style of telling it.
Posted by: Marc DeGirolami | Jan 23, 2012 12:25:44 PM
Tj’s point is a good one. I’ve definitely seen colleagues write an overclaiming introduction for submission to law reviews, then quietly delete it before publication.
Posted by: James Grimmelmann | Jan 23, 2012 10:14:02 AM
Very interesting comments and I am grateful to all. I agree that the problem is not originality per se, but 1) an overly narrow view of what it means and 2) a tendency to oversell. I appreciate Jessica’s comment, and would be glad to think that less of this is going on than I suppose, although I do see lots of it. TJ may be right that the problem has as much to do with the relationship between originality and placement as anything else; I don’t know. I do think that once a culture like this becomes embedded, it can take on a life of its own. But I obviously agree that much of this has to do with law reviews and law review culture–and, as Jessica points out, with professors’ perceptions of law review culture. In saying so my point is not to bash law reviews; it’s rather to encourage the editors (and the writers!) to reconsider the practice or at least apply a healthy dose of skepticism to it.
Posted by: Paul Horwitz | Jan 23, 2012 9:26:32 AM
Paul, I agree with much of what you say, but one quibble. I would not attribute this to “committees and faculties” “hiring new law professors” placing “a high premium on originality.” Indeed, I think an originality graf that overclaims hurts most candidates because committees and faculties can see through it. Rather, it is that committees and faculties place a high premium on placement, and law review editors are at least occasionally bamboozled by a pushy originality graf. Like Matt, I’m not as hostile to student edited reviews as some are, but this is one of its downsides.
Posted by: TJ | Jan 22, 2012 9:31:13 PM
Great observation Paul. I think this is definitely overrated. I’ve been researching and writing on the commercial speech doctrine for over 10 years and I still encounter things I haven’t read of pieces that were truly pioneering except that they seemed not as well known. And I am not sure that originality is the sine qua non of scholarship as some comments claim unless we use that term in a rather different way than I think you are refering to. I do think if one is curious, thoughful, and thorough it is difficult not to bring, if not strict orginality, certainly fresh perspective, additional arguments for a position or revivals of ones prematurely shelved. I’m with you that intellectual curiosity, the desire to learn, is the quality I most value.
Posted by: trp | Jan 22, 2012 7:00:13 PM
I’m reminded of a famous, possibly apocryphal, rejection letter from an editor of a philosophy journal: “Your argument is insightful, original, and correct. Unfortunately, only Professors A, B, and you care about it.”
Posted by: Bruce Boyden | Jan 22, 2012 6:33:49 PM
I don’t whether law reviews insist on such a paragraph, or law professors just believe that they do. The best articles I read don’t seem to make grandiose claims to be the first of their kind. (Or, perhaps the articles seem better to me because they make no such claims.) Either the law review editors didn’t insist on such a graf, or the authors were able to resist. Articles that overclaim can invite tenure or promotion review letters that complain that the author is either unfamiliar with the relevant literature or inappropriately dismissive of it. I have certainly seen some cases of an article’s exaggerated claim to have invented the wheel quashing the author’s opportunity to be hired as a lateral at a school where someone has some expertise in wheel history.
Posted by: Jessica Litman | Jan 22, 2012 3:18:53 PM
Isn’t there a scholarly equivalent to letting your bat do the talking? (By the way, for those of us who aren’t journalists by background, the use of “graf” was highly original.)
Posted by: Jeff Lipshaw | Jan 22, 2012 2:23:13 PM
I wonder if this depends on what subjects you write on. For example, I do about half of my writing in a new area of law where no one has ever written on some of the hugely important questions in the field; it’s fairly easy to just pick a major subject that no one has written on, and then to write the first article on the subject. On the other hand, there are many areas of law with dozens or hundreds of articles on each sub-issue already, which makes saying something new quite difficult — and makes claims of originality quite hard to support.
Posted by: Orin Kerr | Jan 22, 2012 1:56:26 PM
Paul — calls to mind a passage from one of the funniest novels ever written:
Dixon had read, or begun to read, dozens [of scholarly articles] like it, but his own seemed worse than most in its air of being convinced of its own usefulness and significance. “In considering this strangely neglected topic,” it began. This what neglected topic? This strangely what topic? This strangely neglected what?
Kinsley Amis, Lucky Jim (1954)
Posted by: Sean Donahue | Jan 22, 2012 1:55:06 PM
I think this is almost completely a result of the student-edited law review culture. (I might add that I’m not as hostile to this culture as some are, though it has obvious problems, this being one of them.) You don’t see this sort of thing in many other fields, at least not to anything like the extent you do in law reviews. When combined with the quite superficial idea of “preemption” that’s often used in law reviews, it leads to this sort of silly over-stating of originality.
Posted by: Matt | Jan 22, 2012 1:29:51 PM
I think it was David Partlett who told me that he once came across a resume that read something along these lines: 86 refereed articles, nine books, two original ideas.
Posted by: Norman Stein | Jan 22, 2012 1:14:14 PM
I’m certainly no fan of the originality graf. I don’t like the relentless pressure to explain a paper’s “contribution,” and I really dislike papers with grandiose grafs.
That said, originality is the sine qua non of scholarship. A paper that is not original should not be published. And a paper that does not accurately explain what is original about it needs revision. But originality is not the hard part of scholarship.
I think this is just yet another symptom of the way scholarship is distorted by feeding it through student-edited law reviews; we change how we write to match the desires of what we imagine the students want. The problem of the originality graf is that it leads authors to oversell their originality. Dozens of papers claim to resolve a problem for the first time with “new” explanations that are minor variations on each other. Those variations can include useful and, yes, important incremental advances. But the pressure to overclaim means that they have near-identical abstracts, rather than more modest ones that properly differentiate their theses.
Posted by: James Grimmelmann | Jan 22, 2012 12:57:11 PM
Can’t tell you the number of submissions we got last year supposedly discussing an original and important look at Iqbal and Twombley.
Posted by: Mike Rich | Jan 22, 2012 12:55:41 PM