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Sunday, June 03, 2012


As noted in various blogs around the b-sphere, including at Balkinization here and the Wall St. Journal here, the new Most Cited Law Review Articles study was just published in the Michigan Law Review. A few things are clear from the study: Mark Lemley is a rock star of our generation; it's easy to get cited if you write the Harvard Law Review Foreword...and so on and so forth, but didn't we all know this already? There is an interesting reflection in the article about the relationship between articles and books in legal scholarship. Some leading legal scholars such as Ronald Dworkin are not on the list because book citations are not counted. The authors of the study also note that sometimes, when one turns a couple of articles into a book, that can disperse the article's initial impact.

Maybe that's why I never turned The Renew Deal: The Fall of Regulation and the Rise of Governance into a book (it's not) and chose to write my post-tenure first book about innovation policy (Innovation's Edge: The Upside of Raids, Leaks, and Free-Riding, forthcoming Yale University Press 2013). I wrote The Renew Deal while a grad student and published it before going on the law teaching market (it wasn't my job talk piece which I published later). I feel deeply honored that it is second on the 2004 list of most cited, squeezed between Tribe, Koh, Ackerman, and Lemley.

One of the things (perhaps the top thing) we prawfs think about alot is the role of legal scholarship. It's hard to know while you are writing a piece how much impact it will have with the community of scholars you want to speak to. Per the new citology study, and again, unsurprisingly, articles in the Harvard Law Review tend to have a much greater chance of scholarly impact. Indeed, it is quite rare for any article outside the top five or so journals to get on the list. And yet, for me this hasn't been a measure (nor a goal) of an article's success. When I compare between my own articles (a within subject analysis), I must say I don't have a great grasp of which articles will become more central as time goes by. A couple of years after The Renew Deal came out in the Minnesota Law Review, I published another article I had begun writing as a grad student in the Harvard Law Review: The Paradox of “Extra-Legal” Activism: Critical Legal Consciousness and Transformative Politics. That article itself had an interesting path to publication, worth a separate blog entry, the short of it was that I had decided to not publish it cause I got a job and felt it was too personal (not that it reads that way, but that's how I felt about it once I started teaching and wanted to move on to new writing adventures), and only with the urging of a friend, Scott Cummings (UCLA), who kept asking me every time we met at a conference, "Orly, why aren't you publishing The Paradox?", I reluctantly pulled it up and half-heartedly sent it. Long story made short. Back to impact. Once I had returned to The Paradox, I believed it was actually quite interesting, and indeed, here in Israel, where I am spending a marvelous sabbatical this year at Tel-Aviv University, it is the article of mine that seems to have most taken off, taught in multiple syllabi, translated into Hebrew in several journals. But in the U.S., I don't think it had been widely read. Imagine my excitement, turned into disappointment and embarrassment (I am sharing this with you because I got over the embarrassment by now) when I saw one day that Justice Breyer cited The Paradox in a short article of his in a tribute issue in his honor. I imagined he had found my argument that we should reject skeptics who have turned away from the Supreme Court in struggles for social justice. I had imagined he loved my nuanced analysis of what is meant by those who write about co-optation. I had hoped he loved the seamless threads in which I link Brown v. Board to newer cases about gay rights, health care, gender politcs and disability discrimination. And here is what I found when I began reading. This was how my Harvard Law Review article was cited by a Supreme Court Justice:

I'm also grateful to the Annual Survey of American Law for dedicating this issue to me. For one thing, that fact suggests the Law School is interested in the Judicial Branch. And that is a good sign. I realize that journals, like judges, are often under attack. The New York Times reported that Chief Judge Jacobs of the Second Circuit recently said, “I haven't opened up a law review in years. No one speaks of them. No one relies upon them.” And there is evidence that law review articles have left terra firma to soar into outer space. Will the busy practitioner or judge want to read, in February's Harvard Law Review, “The Paradox of Extra-legal Activism: Critical Legal Consciousness and Transformative Politics” ?

I think he assumed the answer. I think he asked it rhetorically. In truth, I had feared the name of the article would deter readers, and would not be as catchy as The Renew Deal. I had asked Scott and the editors at the Harvard Law Review to think of alternative titles. But we all kept coming back to the original one. We thought, and I still think, it best reflects the article's. But perhaps a different title would have gotten it more American readership. In Hebrew it received the new and catchier title, "Is Law Dangerous?"

So dear readers, thoughts about citology, impact and the choice of projects and titles?

Posted by Orly Lobel on June 3, 2012 at 05:45 AM | Permalink


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I think it all boils down to the audience you choose. No one work can please every audience, so you just have to pick what audience(s) you care about based on your interests and goals. Some people will care about influencing the courts; others about influencing the legal culture; others about influencing legal academics; and others will just care about expressing their own views apart from their impact on others. Even within these categories, there are subcategories: For example, some will care about influencing subject matter experts in the field, while others might care about influencing generalists or particular schools of thought within the subject matter. It all depends on your interests and goals, I think, which in turn depends on what you value.

Posted by: Orin Kerr | Jun 4, 2012 1:37:15 AM

In response to your request, here are some comments on citology.


Posted by: Jeff | Jun 4, 2012 12:44:29 AM

A small footnote: when I told my beloved former teacher, turned colleague and friend, Menachem Mautner (profesor and former dean at Tel-Aviv University), about the Breyer citation, he called it a "badge of honor". He said the shift of legal scholarship has been from a doctrinal mode of writing aimed for the judiciary and practice to a deeper level of academic writing that takes the academic community itself as its audience. I think I still believe we can simultaneously do both.

Posted by: orly lobel | Jun 3, 2012 9:16:51 AM

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