In Praise of Unoriginal Scholarship

Authors of law review articles frequently claim that their article "fills a gap in the literature," that they are making an "original" contribution, or that their take on an issue (that has likely been the subject of prolonged debate for decades, if not centuries) is a completely new perspective. Critics scoff at these claims, arguing that they are almost always exaggerated and that, when it comes to big ideas about the law, there's nothing new under the sun (an example of this criticism is here). These critiques aren't far off. A lot of scholarship addresses arguments that have already been made elsewhere in the legal literature or in the academic literature of adjacent scholarly disciplines (which more than a few academic legal writers tend to avoid). 

Despite this criticism, authors continue to claim originality and take what they may well believe to be original--albeit potentially unusual or ridiculous--positions on issues. They do so in the hope that they'll end up making a novel contribution that ends up resonating (or, less charitably, with the hope that they can at least dupe editors and readers into thinking that they're making a truly original point).

Perhaps those caught up in the modern race to fill literature gaps and make original claims should take to heart the words of Jeremiah Smith in his article, "The Use of Maxims in Jurisprudence," where he prefaces his critique of various legal maxims with this disclaimer:

Those who are wont to eulogize maxims may not unreasonably require their critics to "file a specification." In compliance with this request, we proceed to furnish specific criticisms of some specific maxims. And the objections to these maxims will be stated, so far as practicable, in the words of jurists of acknowledged reputation. One who has the temerity to attack popular idols can hardly expect even to obtain a hearing, much less to convince, if he relies solely on the views "evolved from his own inner consciousness." The convincing force, if any such there be, of this article will consist in its want of originality. (emphasis added).

The landscape of legal scholarship may become just a bit less ridiculous if more authors and editors meditate on the last sentence of that paragraph.