In chapter I of his book Academic Legal Writing, law professor Eugene Volokh likens good academic writing to a patent.
I agree with Professor Volokh. But what does he mean?
For a U.S. Patent to issue, a number of requirements must be met. Three of the most important are:
Patent Novelty. The invention must be new in a number of important senses (see 35 U.S.C. § 102). For example, if an “inventor” files an application for an invention that was previously patented, then the invention is not novel. The patent should be denied.
Patent Nonobviousnessness. Even if the invention is novel, the new aspects of the invention may be so trivial that they are “obvious” to someone who has ordinary skill in the relevant field of technology. (Patent lawyers call this person the “PHOSITA,” or “person having ordinary skill in the art.”) It’s not enough that an invention is “novel.” The novel invention must also be more than a trivial improvement. (See 35 U.S.C. 103). If a person in the appropriate field of technology would see the improvement as obvious, then the patent should be denied.
Patent Utility. The invention must confer some identifiable benefit (see 35 U.S.C. 101). It must work. So no patents for time machines or perpetual-motion devices. The idea here is that we don’t want to issue a patent — a powerful property right — without knowing that the invention works. If it doesn’t, then the patent should be denied.
What does this have to do with academic legal writing? Actually, a lot.
Academic novelty. Do you have something new to say? This is the question of preemption. Truth be told, most any topic that you want to write about will have been written on before. But that does not necessarily mean that your paper as a whole will lack novelty, i.e., be preempted. Instead, ask yourself whether your thesis is novel. (See here for discussion of topic versus thesis.) In academic legal writing, you should be making an original contribution. If the topic truly hasn’t been written on before (or the particular case you’re writing about just came out), then your topic might be novel. But it’s typically enough that your thesis is novel.
Academic nonobviousness. It’s not enough for your topic (or more commonly, your thesis) to be novel. You also have to escape the “duh” objection. Your original contribution must be more than an obvious addition to what others have said before. So it’s not enough to write a paper and say, “The majority got it right!” or “the dissent had a better rationale!” It’s also not enough to vary slightly from previous writings just to come up with something “new.” Put it this way: if people read your paper and say “duh,” then your thesis is likely obvious. Avoid the “duh.”
Academic Utility. This is why we write, correct? We want people to read and to cite our scholarship. We want to make a contribution that matters. The last thing you want is for someone to read your paper and so “So what?” Overcome that. Your contribution can be useful in a number of ways. You can come up with a new way of reconciling case law, or recommend how new law should be written. You might contribute a useful theoretical framework, or point out how an existing theoretical framework ought to be corrected. There are numerous ways to be useful. Just avoid the “So what?”
Academic novelty. Something new, whether topic or thesis?
Academic nonobviousness. Do you avoid the “duh” factor?
Academic Utility. Do you overcome the “so what” objection?
For further guidance, see Professor Volokh’s book.
Last updated Sept. 9, 2014.