Everybody is striving for novelty in their academic (legal) papers.
The novelty might be linked to actuality, a new phenomenon (facts, decisions, books, etc.) with legal dimensions to be explored. Hence, an academic
writer might be at first a (legal) critic of actuality.
The danger of the approach is that such novelty is a 'fragile commodity' that 'vanishes' quickly. Also, such a topic will push different authors to write
articles about it. Therefore, the importance of the message (as a distinct voice) will be lost in no time.
A much better
strategy would be to search for novelty as a new legal perspective about a phenomenon.
This novelty
of approach or insight is not linked to the actuality of
the issue (without excluding it either). Instead, it can be reached by choosing a
topic on the 'edge', by crossing borders into unexplored 'fields'.
On a deep level, crossing such an edge might imply using analogy or comparison
as a heuristic. Such analogy signifies the analysis of deep, structural correspondence between two fields by examining a better-known area's relations
(or relation with relations) to another, less-known domain. In cognitive
sciences, the approach is called the 'mapping'[4]
between the two fields[5].
More precisely, one might use an analogy from a legal field to
another legal area. We can give the example of cyber-attacks dealt with by criminal law on a national level. But the
problems of cyber security can be analyzed by analogy with similar instruments of International
law. One might examine (speculate from an empirical ground) whether a cyberattack can be a cyber war (international law crime) and the conditions for qualified it as such.
Comparison
as a heuristic process
Another productive instrument for creating
new topics is legal comparison broadly defined (within the same branches
of different legal systems, or among other theories or various
doctrines, etc.). By contrast, one might put in parallel components of different legal systems.
That will
automatically create a first questioning since there will be differences between compared entities, besides similarities which make comparison
possible. Then, in a second moment, the researcher might examine the reason for such differences. The comparison might also create a dynamic in
the paper, which would remain purely descriptive without it.
[1] Transatlantic answers ..., infra this blog.
[2] Professor Richard Delgado made the
suggestion that legal writers should "find one new point, one new insight, one
new way of looking at a piece of law and organize your entire article around
that. One insight from another discipline
[italics are from us], one application of simple logic to a problem where it
has never been made before is all you need." Cf. Richard Delgado, How to
Write a Law Review Article, 20 USF L. REV. (1986) at 449.
[3] Cyber attacks…, infra this blog.
[4]
The structure-mapping
theory states that an analogy between analogues A and B is a set of
mappings between the two sets of predicates (relations) that represent A and
B. A mapping is an alignment of corresponding parts of the source and target
analogues.
Mappings are subject to the following three rules:
1. Mappings between attributes are primarily or entirely ignored;
2. Mappings between relations, e.g.,
R(a0, a1) to R(b0, b1), which are
emphasized where,
3. They enter into systems of
relations, e.g., R_(Ra0, Ra1) to R_(Rb0, Rb1). Cf. Gentner, D. (1983), "Structure-mapping: A theoretical framework for analogy", Cognitive Science, 7, 155-170.
[5] The most spectacular use of analogies in hard sciences is the case of Kepler, one of the most creative
geniuses.
Apparently, his creativity was linked to 3 factors: frequent use of
analogy, different analogues (pairs of metaphors), and attention to
inconsistency. Kepler worried about inconsistencies and was driven by them to push old analogies or, sometimes, to reject them. However,
apparently, these two factors play different roles.
Attention to inconsistencies
was a motivator of conceptual change.
In contrast, the analogy was the process through which
conceptual change occurred.
Cf. Dedre Gentner et al., "Analogy and creativity in the works of Johannes Kepler", in T . B .
Ward, S . M . Smith, J . Vaid (Eds), Creative thought: An investigation of conceptual structures and
processes (pp. 403-459). Washington DC,
