Originality in Scholarly Legal Writing

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One common law school graduation requirement is a scholarly paper. Some students fulfill this requirement by writing a student note for their school’s law review or specialty journal, while others write a lengthy research paper as part of a seminar course. One requirement for legal scholarly writing is originality, which can feel like a lot of pressure to a 2L or 3L. After all, you are still figuring out what it means to be a lawyer, and how do you know enough to come up with something “new” to write about? The fear can paralyze you, preventing you from narrowing your topic or developing a thesis for your work.

The fear really comes from a misconception about what originality actually requires. Originality doesn’t mean that you have to be the first person to have ever written about the topic. Instead, it means that your paper has to include original thought. You can’t just summarize what other people have already written about the topic, as you might do in an undergraduate term paper. You have to have a perspective, something new to add to the conversation in some way.

What makes a scholarly paper original? Of course, if you are the first person to ever have identified a legal problem, that is an easy way to have an original paper. You might notice that a court has identified something as an issue of first impression, for example, and no scholars have yet explored that issue further. Or maybe courts are split about how to resolve a legal issue, but not much has been written outside of court opinions.

But even if other scholars have already offered potential solutions to a legal problem, there is often space for another, alternative approach. Maybe you realize that scholars have not considered something you think could be relevant for analysis of a legal issue. There may be two scholarly approaches to a topic, very different from each other, and you believe the real solution might be something in between. Or maybe another discipline has a different way of looking at that legal problem, and you realize that those other theories could be integrated into your own legal analysis.

One way to find your own voice, your personal space within the scholarly conversation, is to read some of the scholarship that has already been published on the subject. Do a search within law reviews and journals in one of the legal databases, looking for articles that have been written in the past few years on your topic. That will give you a starting point for where the scholarly conversation has been heading. Choose at least 2 or 3 articles that seem to have a significant amount of discussion of the topic that you are interested in. As you read those articles, have your own conversation with the authors in the margins. Does what you are reading raise further questions? Note what those questions are. Do you feel that the author is not considering something that could be important? Write “What about ….?” in the margin. Does what you read inspire new ideas? Make a note of those as well. When you take this approach for multiple articles, you will often identify your own perspective of the topic you have chosen.

Finally, if you have concerns about whether your topic is original enough to meet your law school’s scholarly writing requirements, make sure that you have a conversation with the person supervising your research project.

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