"Fuck," Fairman, Leiter, and SSRN Rankings

Following a mini-controversy in the usual quarters, Brian Leiter writes about his decision not to include Chris Fairman's paper, Fuck, in his count of the 15 most downloaded law faculties for 2006.  Fairman himself, knowing a good thing when he sees it, has written an interesting short piece about which is available, naturally, on SSRN, here. 

Brian is dismissive of the fuss, calling it "amazing[ ]" that some people objected to the exclusion of Fairman's paper from his count.  He writes that his reason was obvious: "its unusually high download count was due to its provocative title, not its scholarly content."  He writes further:  "If Ohio State had been included in the list of the 15 most downloaded faculties for 2006, it would have been because 90% of its downloads were due to this one paper.  No other school's rank was so much a function of one paper by one person.  SSRN is a pretty weak measure of scholarly performance--as I made very clear--but it is just a joke if one paper by one person essentially determines a school's rank."  Finally, he denies that he excluded the paper for any reasons of bias or out of an antipathy to civil rights scholarship, and reiterates his reason for doing so: "the best explanation for why the paper was downloaded as much as it was had to do with its title, not its scholarly importance or impact."

In writing a short piece on law reviews, the online age, and law school reputation gatekeepers for an online law review supplement, I've been grappling with Brian's thoughts on some of these issues, which can be found at the above link and in this piece.  Although I am fairly sure I disagree with him (I'm still trying to discern precisely what he thinks, and to decide precisely what I think), his thoughts are well worth reading.  I surely think Leiter had no thoughts of bias when he excluded the paper.  My thoughts run, I guess, to the following sorts of questions: 

First, if the problem is one of download counts for schools being influenced by only one or two professors' work, why not just omit the top posters for all schools on a consistent basis, as Fairman argues in his response?  Or conversely, since Leiter already lists the top three posters for other schools, why not just do that here?  Second, if, as Leiter reasonably concludes, "SSRN is a pretty weak measure of scholarly performance," why take such care to carve out an exception here?  Third, why bother keeping such a measure at all?  Leiter has a perfectly reasonable response to this -- he maintains a law rankings site and wishes to be catholic in what he includes there -- but we might ask this question more broadly: Why do we care about such measures so much, even while we all question and dispute them so closely?  (See here for one answer.)  Finally, in what sense is SSRN a measure of scholarly performance at all?  If it's because people make an informed choice whether to download a paper after reading the abstract, why exclude Fairman?  Isn't it at least partially the case that downloads often reflect scholarly reputation, more or less crudely measured by the fame of the author or the prestige of his/her school?  Is this really a measure of performance?  Is it that much better a measure of performance than an author's ability to capture attention by writing a piece that deliberately reframes the debate on an interesting issue and, not incidentally, has a smashing, epater-les-bourgeois-type title?  Of course, perhaps that's not really what happened with Fairman's piece -- maybe it's all about the title -- but is that all that different from capturing attention because you teach at a fancy place and have a fancy title?  Maybe it's a little better -- but is the Emperor that much more dignified if he manages to throw on a pair of socks, and not much more?   

Let me add a slight update: A correspondent suggests that Leiter's post contains an answer at least to the questions posed above involving excluding or listing separately the top three downloadees -- namely, that the Fairman situation is different because it involves a single paper by one person skewing, rather than multiple papers from the top three downloaded profs.  Viz., from Leiter's post:  "If Ohio State had been included in the list of the 15 most downloaded faculties for 2006, it would have been because 90% of its downloads were due to this one paper.  No other school's rank was so much a function of one paper by one person."