21 Pages Posted: 25 May 2008 Last revised: 30 Sep 2008
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.
Keywords: originality, copyright, rewriting, literature, appropriation, precedent, The Wind Done Gone, law reviews, preemption
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