Jeannie Suk Gersen
Harvard Law School
Harvard Law Review, Vol. 115, p. 1988, 2002
This essay juxtaposes three contexts in which lawyers grapple with originality: copyright law, precedent-based legal reasoning, and law review publishing. I compare the dynamics of originality in each of these contexts. I focus on the literary genre of rewriting and its encounter with copyright law. I examine the interaction of rewriting and originality in one particular instance of judicial precedent-following. Finally, I reflect on the relation between preemption and citation in legal scholarship. In each of these contexts, originality and unoriginality form two sides of a double-edged sword: a paradox that derives from the application of lawyerly habits of mind to the unstable concept of originality.
Number of Pages in PDF File: 21
Keywords: originality, copyright, rewriting, literature, appropriation, precedent, The Wind Done Gone, law reviews, preemption
Date posted: May 25, 2008 ; Last revised: September 30, 2008