Against Gap-Filling

Legal scholars delight in gap-filling. They frequently claim that their works have identified a gap in the literature and to have filled (or begun filling) that gap. However, all too often, these same papers fail to explain why the gap needed to be filled at all. Indeed, despite a robust tradition of meta-scholarship, the legal literature is largely devoid of a theory of academic gap-filling.

This essay fills that gap, arguing that gap-filling for the sake of gap-filling is an error for three interconnected reasons. First, gaps might exist for a good reason. Second, concern with gap-filling is often a misguided attempt to address other issues that are tangential to legal scholarship. Finally, focusing on gaps is incredibly limiting.

Instead, this essay suggests that legal scholars should focus on exploring questions that interest them, regardless of whether that exploration leads them to a “gap.”