The Very First Empirical Study of Novelty Claims in Law Review Articles

Paul Horwitz posted a blog post at Prawfs about novelty claims in law reviews.  The claim by an author that their article has the most comprehensive coverage of Subject X/Y is called a “novelty claim”.  Law review authors, especially junior authors,  sometimes include such claims to try to establish that their article is novel and therefore something new that adds to the body of scholarly knowledge.

Paul observes a rise in these claims, at most based upon a simple Westlaw query. From about 25 articles per annum twenty-five years ago to around 200 articles each year, the annual number has risen by about 20 percent.  Paul says:

This is largely due to the ineptness of law review editors, which can lead to a lot more confusion. They are not the only ones to blame. They don’t always possess a wide range of knowledge and a deep understanding in the field they teach. The scholarly history they had is lost to them, even if it was ever taught. They are often called on to evaluate candidates in a wide range of areas that do not fall within their expertise. They might not have to. My understanding is that all faculty members should be able to vote for candidates from any subject area. Their desire for the same proxy may not be as strong. Some may choose bad proxies over others. I believe that, regardless of how much they think and say they do know, most claims like these are not justified and are strategic. They (just as we) could easily be lulled into believing such claims more than necessary. The chains that we wear in our lives are made by us, but we soon cease to see them as such.

9) I am at the very least jaded, and sometimes despairing about all of this. I will end with a more optimistic note. These numbers are both depressing due to what they reveal about the system, and partly because it is not my opinion that writing should be an exclusive expression of one’s personality. This is due to the fact that many sentences are not truthful and insincere. As I mentioned above, the increase in the use of this phrase is likely due to the increased competition between a wider variety of legal scholars who are skilled in many fields, have diverse backgrounds, and write in different ways. One may feel more free to be unique and unusual in an elitist, smaller system. This is because people know each other better and the work of everyone is more carefully sorted. The standardization and bureaucratization that phrases like “this” represent, even though those who wrote it didn’t think so, may be a way of dealing with a larger, more skilled, wider range of scholars. This is a reason to be cheerful. The problem is that the way it presents information doesn’t appear to be particularly good, honest, or that would make for enjoyable reading.

My advice to law review authors, especially junior authors, to the extent anyone cares, is to be wary of making direct novelty claims (“this is the first article to…” etc.).  You can make direct novelty claims in any draft that you send to journals if you believe it to be accurate. You might want to change it so that the final version doesn’t contain this phrase.  The article must be clear and concise. Please beIt’s not common.  It’s better not to declare it. You could say in an introduction: “This article has a great content and I think you’ll benefit a lot.” True, that’s what you want.  You’d look amateurish writing that. Another alternative is to write something like “This topic is especially important because it was not addressed in previous scholarship.” This would add a footnote to the similarity and show why it isn’t on the same page. While you could make the point I suggest avoiding direct novelty claims formulations.