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Tuesday, May 16, 2017

Game-Changing Articles

This will be the last time I try to crowdsource the wisdom of Prawfsblawg this month.  But, like many relatively new law professors, I have tried to figure out what makes a game-changing, seminal law review article.  Some articles create new theories that shape law.  Some articles canvass an area of law.  Some reconstruct ("under-theorized") theory in new ways.  There are even wonderful law review articles about law review articles -- filled with citation counts and metrics which help identify articles that qualify as influential. 

But, what have been the true game-changing articles in the last seven years (since I have should have been paying attention)?  What are the articles that changed perceptions and qualify as seminal articles?  As just one of many possible examples, something like Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890) which helped shape tort law, Fourth Amendment law, and an understanding of privacy. 

Self-nominations welcome.

Posted by Andrew Guthrie Ferguson on May 16, 2017 at 09:45 AM | Permalink


The recent article that has most changed the way I think of something is an area -- Tort -- that I don't read as much in as the tech or adlaw stuff I write about. But I've been teaching Tort for a few years, so I do read some in the area.

How I think about the history and evolution of negligence law was upended by Kenneth S. Abraham & G. Edward White, The Transformation of the Civil Trial and the Emergence of American Tort Law, which Anthony Sebok beat me to reviewing for Jotwell at https://torts.jotwell.com/what-is-it-like-to-think-like-a-pre-modern/ .

Game changing? Probably not, but mind-changing in my case.

Posted by: Michael Froomkin | May 17, 2017 4:08:12 PM

In administrative law / con law:
- "The Lost World of Administrative Law," by Dan Farber & Anne O'Connell;
- "In Defense of Big Waiver," by David Barron & Todd Rakoff;
- "Chevron's Domain," by Tom Merrill & Kristin Hickman;
- "Empire Building in Constitutional Law" by Daryl Levinson;
- (and from 1999)"Nondelegation Canons" by Cass Sunstein.

Posted by: Tantalo | May 16, 2017 7:10:17 PM

You can't go wrong with a Lemley or two.

Posted by: Ed Swaine | May 16, 2017 5:10:01 PM

I am happy to lower "the bar" to potentially game-changing articles in particular fields if that would encourage more examples... and to expand the time frame. How about since the year 2000?

Posted by: Andrew Ferguson | May 16, 2017 5:02:10 PM

I don't disagree with the Grumpy view, but I don't think it's just that everyone's attention is fragmented and influence is felt within smaller groups. Additionally: (1) you set the bar too high, both in terms of influence and that influence's immediacy (how many seven year periods had a Warren/Brandeis, let alone this one?); (2) law review publishing is a mature industry in which game changing innovations are just less likely (Warren/Brandeis were in volume 4 of the HLR, whereas we've since had many trees felled by a much larger and more publishing-oriented professoriate, which makes the influence of each additional article more marginal). But see, e.g., Orin Kerr, A Theory of Law.

Posted by: Ed Swaine | May 16, 2017 4:47:15 PM

I tend to agree with Grumpy on this.

Posted by: Orin Kerr | May 16, 2017 1:49:09 PM

Two thoughts. First, the era of the game-changing article is probably over. Like every other corner of the communications sphere, legal scholarship has become so fragmented that it may well be impossible to command the kind of broad attention -- much less produce the kind of broad impact -- that was possible back when most everyone read the same small number of journals or books. The most anyone can hope for these days is to produce game-changing scholarship within his or her field, defined in the narrowest possible terms. If you change the terms of debate among the thirty or so people with whom you regularly converse, that's an achievement, and a rare one.

Second, the practice of junior faculty self-consciously trying to write a Big, Game-Changing Article has contributed as much as anything to the disposability of so much legal scholarship. "This article is the first to advance a completely comprehensive, but largely tone-deaf, retheorization of something people have been talking about in the same terms for decades," and so forth. I would suggest more moderate ambitions. A more reliable route to making a name as a scholar over the long term is to commit to making some modest forward yardage on every play. Eventually, it will add up.

Posted by: Grumpy | May 16, 2017 1:43:59 PM

Trying to identify whether an article is game-changing after only seven years in is like trying to identify a game-changing artwork after seven years. There is a reason for the cliche that famous artists are only appreciated after they are dead.

Posted by: TJ | May 16, 2017 1:13:19 PM

If you truly want to make Big Waves with a "Game-Changing, Seminal Law Review Article," all you need to do is study/research the new website JudicialMisconduct.US, and write about that. Bet you don't have the chops for it, though.

Posted by: Walter Tuvell | May 16, 2017 10:51:01 AM

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