What does legal scholarship have in common with patents?

Image credit: Farzadlaw.com

Image credit: Farzadlaw.com

To be patentable, an invention must be:

    1. novel,
    2. nonobvious (it must involve an inventive step), and
    3. useful (capable of industrial application).

To be publishable, a piece of academic legal writing must make a claim that is:

    1. novel,
    2. nonobvious, and
    3. useful.

The claim a piece of academic legal writing makes must also be sound.

The first requisite of sound legal scholarship is that it must make a claim. The attributes listed above (novelty, non-obviousness, utility, and soundness) belong to the claim. You should not write an article or book without a claim or with a claim that lacks any of these features. And you should not read any such article or book. We have enough good works out there. “Many good works of original scholarship have a basic thesis—a claim they are making about the world. This could be a descriptive claim about the world as it is or as it was (such as a historical assertion, a claim about a law’s effects, or a statement about how courts are interpreting a law). It could be a prescriptive claim about what should be done (such as how a law or a constitutional provision should be interpreted, what new statute should be enacted, or how a statute or a common-law rule should be changed). It could also be a combination of both a descriptive claim and a prescriptive one. In any case, you should be able to condense that claim into one sentence.” (Eugene Volokh, Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review, 4th edition, New York, Foundation Press, 2010, electronic version, 27 {italics in original})

Your one-sentence thesis statement (your claim) might look like one of the following:

    1. The Penal Code of Zamfara State is unconstitutional because it prescribes cruel and unusual punishment amounting to torture contrary to section 34(1)(a) of the Constitution of Nigeria.
    2. Properly interpreted, the combined effect of section 42(1) of the Nigerian Constitution (forbidding discrimination) and section 357 of the Criminal Code (criminalizing rape) is that a woman could be guilty of rape.

Forcing your claim into one not-too-long sentence capsulizes your thesis, helping to “focus your discussion” and “communicate your core point.” (Volokh) You should state your claim or thesis “in a forceful way. Or use a concrete example to illustrate the issue, and then state your claim.” (Joseph Kimble, ‘Tips for Better Writing in Law Reviews (and Other Journals)’, Thomas M Cooley Law Review, vol. 30, no. 2, 2013, 197.)

You should state your thesis upfront, in your introduction, much like a brief writer states the issues upfront. “Write a compelling introduction” that starts with your thesis and grabs the reader’s attention (see endnote below). Shun banalities, generalities, platitudes, and philosophical musings. “Avoid the sleep-inducing, but ubiquitous, front-end description of what you’re going to cover in each part. Your headings should provide the guidance that readers need.” (Kimble)

Joseph Kimble, ‘Tips for Better Writing in Law Reviews (and Other Journals)’, Thomas M Cooley Law Review, vol. 30, no. 2, 2013, 197.