Academic Legal Writing - Eugene Volokh [13]
For instance, say you want to criticize obscenity law. Many people have already argued that obscenity law is unconstitutional because it interferes with self-expression, or because it's too vague. You shouldn't write yet another article that makes the same point.
But a new test for what should constitute unprotected obscenity might be a novel proposal (and might even be useful, if you argue that state supreme courts should adopt it even if the U.S. Supreme Court doesn't, see Part I.E.2, p. 24). So would a proposal that obscenity law should be entirely unconstitutional, if you've come up with a novel justification for your claim: For instance, the claim that “obscenity laws are unsound because, as a study I've done shows, such laws are usually enforced primarily against gay pornography” may well be novel. (This claim and the others I mention below are just examples. I don't vouch for their correctness, or recommend that you write about them.)
What if you've chosen your topic and your basic rationale, and, four weeks into your research, you find that someone else has said the same thing? No need to despair yet.
2. Making novelty through nuance
Often you can make your claim novel by making it more nuanced. For instance, don't just say, “bans on nonmisleading commercial advertising should be unconstitutional,” but say (perhaps) “bans on nonmisleading commercial advertising should be unconstitutional unless minors form a majority of the intended audience for the advertising.” The more complex your claim, the more likely it is that no one has made it before. Of course, you should make sure that the claim is still (a) useful and (b) correct.
Some tips for making your claim more nuanced:
1. Think about what special factors—for instance, government interests or individual rights—are present in some situations covered by your claim but not in others. Could you modify your claim to consider these factors?
2. Think about your arguments in support of your claim. Do they work well in some cases but badly in others? Perhaps you should limit your claim accordingly.
3. For most legal questions, both the simple “yes” answer and the simple “no” tend to attract a lot of writing. See if you can come up with a plausible answer that's somewhere in between—“yes” in some cases, “no” in others.
D. Nonobviousness
Say Congress is considering a proposed federal cause of action for libel on the Internet. You want to argue that such a law wouldn't violate the First Amendment.
Your claim would be novel, but pretty obvious. Most people you discuss it with will say, “you're right, but I could have told you that myself.” Libel law, if properly limited, has repeatedly been held to be constitutional, and many people have already argued that libel law should be the same in cyberspace as outside it. Unless you can explain how federal cyber-libel law differs from state libel law applied to cyberspace, your point will seem banal.
Claims such as that one, which just apply settled law or wellestablished arguments to slightly new fact patterns, tend to look obvious. Keep in mind that your article will generally be read by smart and often slightly arrogant readers (your professor, the law review editors, other people working in the field) who will be tempted to say “well, I could have thought of that if I'd only taken fifteen minutes”—even when that's not quite true.
You can avoid obviousness by adding some twist that most observers would not have thought of. For example, might a federal cyber-libel law be not just constitutional, but also more efficient, because it sets a uniform nationwide standard? Could it be more efficient in some situations but not others? Could it interact unexpectedly with some other federal laws? Making your claim more nuanced can make it less obvious as well as more novel.