The Most-Cited Articles from The Yale Law Journal
Fred R. Shapiro
100 Yale L.J. 1449 (1991)
On the occasion of the centennial of The Yale Law Journal, this essay presents a compilation of the Journal's most-cited articles. Such a project, in an age already deluged with lists and rankings, bears a burden of justification. (Sheer curiosity may suffice as a rationale. For those of you who cannot wait to see the compilation, Table I is on page 1462.)
Legal education has been buffeted by its full share of the ranking deluge. For example, U.S. News & World Report has published high-profile law school rankings, in the latest of which Harvard Law School placed a surprising fifth because of low scores in three areas not usually thought of as weaknesses of that school -- namely, placement success, salaries of graduates, and graduation rate. 1 In the early 1980's, the deplorable Gourman Report attracted much attention and, regrettably, influenced the choices of many law school applicants with an ambitious rating of law schools. Among other remarkable features, the Report compared schools on a global scale (Paris beat out Harvard, Michigan, Yale, and Oxford for first, with Moscow State fifteenth) and exhibited a 100% correlation among five seemingly distinct components: quality of administration, quality of curriculum, faculty instruction, faculty research, and library resources.
Another chapter in the legal Book of Lists could be devoted to ratings of publishing productivity of law school faculty. This literature includes a study of faculty productivity in leading law reviews, compiled by a law professor at Arizona State, in which Arizona State ranked seventh in the country in "pages per faculty member." An unpublished but well-publicized memorandum from a Northwestern University law professor to the school's faculty and deans, explicitly triggered by the school's disappointing U.S. News rating, showed Northwestern as third in "items per faculty member, top ten law reviews" and "out of house pages per faculty, all law reviews." Productivity charts have now been institutionalized by the Chicago-Kent Law Review's promised-to-be-annual "Faculty Scholarship Survey." The first year's lists have IIT Chicago-Kent College of Law as a highly respectable number twenty in both "pages published per faculty member in the twenty leading journals (excluding in-house articles)" and "pages published per faculty member in the ten leading journals (excluding in-house articles)."
Legal statistics freaks have also turned their attention to ranking the most frequently cited law reviews. The UCLA Law Review published The Citing of Law Reviews by the Supreme Court: An Empirical Study. The UCLA Law Review itself only tied for twenty-fifth, but scored an impressive second in the "most improved" category. An interesting twist on the home-team phenomenon was provided by a scholar who expressed "surprise" in an interview that his article, The Use of Legal Periodicals by Courts and Journals, which rated Hofstra Law Review ninth in "combined rankings of journal and judicial citations per 1,000 pages," was the subject of a front-page story in Hofstra Law School's student newspaper, but was rejected by the Hofstra Law Review.
The justification for a ranking of the most-cited Yale Law Journal articles (beyond curiosity) is easily summarized. Citation-counting, as I have stated in my previous article on the subject, "falls somewhere between historiography and parlor game," but has been shown to correlate highly with peer judgments of scholarly influence. Lists of most-cited works therefore serve to draw attention to authors and publications that, by a rough measure, have had the most extensive impact on scholarship. In Part I of this essay, I further sketch out my own viewpoint, grounded in the findings of information science and the sociology of knowledge, on the significance of a publication's being highly cited. In addition, I propose avenues of future research in legal citation analysis.
Citation counts can also be a means of focusing on a particular subset within a scholarly literature and spotlighting writings within that subset whose impact has been exceptional. The Yale Law Journal has been a central component of legal literature, and its centennial is an appropriate occasion for identifying the "citation superstars" it has published in the course of its century of existence. In Table I, I list the thirty most-cited articles from the Journal, ordered by the number of citations received within other articles. Part II of this essay explains the sources, limitations, and other characteristics of my data.
For Part III, in order to record other, more personal viewpoints on the significance of supercitedness "straight from the horse's mouth," I invited some of the authors of the most-cited Yale Law Journal articles to comment briefly on their citation landmark papers. Because of space restrictions, I was forced to limit this invitation to authors of the sixteen most-cited articles from Table I, two older articles from further down the list, and the two older articles appended at the end of Table I. Where the author was deceased or was unable to contribute a commentary, I asked a distinguished scholar with an interest in the article's subject matter to comment.
In my invitation to the article authors, I suggested that the commentaries address the questions: "What impact do you feel the article has had on other scholars, on the courts, or on legislation? Have your views on the topic changed? Would you write the article differently today?" For the commentators who were not the authors, I posed only the first question. My intention, however, was to give the authors and commentators wide discretion to address whatever issues they preferred, and the commentaries, in fact, take a variety of approaches.
In some cases, the authors' retrospection required revisiting arenas from which their interests have shifted. Some of the authors express or imply disapproval of the enterprise of citation-counting. The Yale Law Journal and I are grateful to the article authors for joining, nonetheless, in this commemoration. We would particularly like to thank William R. Perdue, Jr., coauthor with Lon L. Fuller of the milestone 1936 article, The Reliance Interest in Contract Damages, and Myres S. McDougal, coauthor with Harold D. Lasswell of Legal Education and Public Policy: Professional Training in the Public Interest (1943), for each sharing the perspective of a half-century's experience. We are equally grateful to the commentators who were not the authors for their participation.
I have suggested that the commentaries may be read as explorations of the question "What does it mean to be frequently cited?" This theme is explicit in a few of the pieces. George L. Priest, for example, writes that William L. Prosser's Assault Upon the Citadel has been heavily cited "not because its ideas were influential, nor, surely, because it initiated a school of thought," but because it "was perfectly positioned to catch the wave of enthusiasm for greater manufacturer liability."
John Hart Ely distinguishes being cited from being read, asserting that citations to one of his articles pop up in string citations supporting a particular proposition and that "no evidence exists that anyone has read it." Joseph Goldstein casts the most skeptical eye on citationology, fearing that such ranking "could become an invidious virus in the world of scholarship. It bears no relationship to scholarly merit." Goldstein also echoes Ely's distinction between citing an article and reading or understanding it.
The other commentators do not controvert the rationale of citation analysis (maybe they are just being polite). I see in most of the commentaries a tacit acceptance of the notion that scholarly influence, though complex and not always reflected in explicit published references, is often articulated through citation links. The commentators who choose to address the question of article impact are describing the flesh and blood of a process of influence -- what Carol M. Rose calls a "scholarly conversation" -- which can also, in a skeletal form, be profitably studied using citation analysis.
I find that a number of the articles on my list share a notable distinction. Part of their impact in breaking new ground is an impact on vocabulary. We speak a different language in their wake. We talk of "entitlement programs" because Charles A. Reich introduced a new sense of the word "entitlement" in his article, Individual Rights and Social Welfare: The Emerging Legal Issues. The terms "decision-making" and "content analysis" occur in Lasswell and McDougal's Legal Education and Public Policy prior to the earliest examples recorded by the Oxford English Dictionary, and much of the modern connotation of the word "policy" stems from that article and other writings by these two authors. Wesley N. Hohfeld, in Some Fundamental Conceptions as Applied in Judicial Reasoning, contributed a jurisprudential analysis whose impact was in large part terminological. Fuller and Perdue shaped contract law by naming three interests served by contract damage awards. Other articles on the list, such as those by Guido Calabresi, Thomas I. Emerson, and Joseph L. Sax, were not specifically neologistic but influenced the content and range of legal discourse in a broader sense.
Impact on terminology and discourse is a form of influence which may not always be reflected in counts of explicit citations, and thus resembles the phenomenon of "obliteration" identified by Robert K. Merton and other sociologists of science. The work of some thinkers is so influential that it is integrated into the common body of knowledge to the point where scholars no longer feel they have to cite it explicitly. "Anybody who cited Einstein's original paper when he writes E=mc<2> would be laughed at." The most interesting legacy of the articles on my list may well be found in subsequent work which does not cite them.
I. LEGAL CITATION ANALYSIS
Legal communication has two principal components: words and citations. Citations are strings of names and numbers which refer, for a variety of purposes, to prior writings. Richard Delgado and Jean Stefancic recently have echoed my suggestion that the history and structure of legal thought can be illuminated through study of the history of legal words. Analysis of the citations employed by legal writers offers similar promise as a tool for exploration of legal thought.
Citation analysis is now extensively used by information scientists and sociologists to study the history and structure of the natural sciences and other disciplines. For example, scientific and scholarly literatures have been "mapped" through document co-citation. Two publications that are often jointly cited by later publications are placed near each other on a pictorial map of intellectual space. Writings that are frequently co-cited with many of the other documents in a subject area are placed in the center of the map of that subject, while writings less frequently co-cited appear at its periphery. On a large diagram of a discipline, subfields themselves emerge as core or fringe, and, on the largest map, disciplines are connected and scholarship as a whole is outlined.
Another application of citation data is the compilation of rankings of journals based on straight citation counts or "impact factors" (the average number of citations received by articles published in a particular journal). Authors too have been evaluated through tabulation of citations to their writings. Citation counts have been utilized in assessing scholars' work for purposes of grant awards, tenure, or promotion decisions.
Those using citation data for evaluative purposes have justified such use by pointing to research demonstrating a high correlation between the total of citations to a scientist's or scholar's writings and judgments by peers of the "'productivity,' 'significance,' 'quality,' 'utility,' 'influence,' 'effectiveness,' or 'impact' of scientists and their scholarly products." One investigator has gone so far as to say that "citations and peer ratings appear to be virtually the same measurement."
Almost all citation analysts, however, are careful to note that citation counts measure a "quality" which is socially defined, reflecting the utility of the writing in question to other scholars, rather than gauging its intrinsic merit. Furthermore, the value of the counts may be lessened by limitations in the accuracy, coverage, or time-frame of the source data. For these reasons and others, evaluative use of citation analysis has remained controversial.
Even with their acknowledged limitations, citation counts are attrative as relatively objective tools for assessing scholarly impact. They can be used not only to gauge the impact of a given author or writing, but also to identify which writings are the most frequently cited, taken to be a rough measure of the writings which have had the most extensive impact.
There is a long history of citation studies in law. Although information science literature frequently repeats the assertion that the earliest instance of citation analysis was a 1927 study by Paul L. K. Gross and E. M. Gross tabulating references in the Journal of the American Chemical Society, legal citation analysis antedates this "first" by at least thirty-three years. The Report of the Seventh Annual Meeting of the Virginia State Bar Association in 1895 noted that:
Among publishers, Mr. [Charles C.] Soule, of the Boston Book Company, is pre-eminent in his knowledge of legal bibliography. In his circular for November, 1894, he gives a table showing the comparative frequency of citation of the Federal, English and State decisions, outside of their own respective jurisdictions, compiled from the last official volume of each prior to 1894.
A more elaborate citation analysis appeared in the American Bar Association report for 1895. Frank C. Smith, the Secretary of the Committee on Law Reporting, compiled a large table setting forth the number of cases reported from each American court of last resort from June 1, 1894 to May 31, 1895 and the number of times each state and federal court cited each other state and federal court, as well as English courts, during that period. Smith also computed the total number of citations in the cases examined, the total of citations to a court's own precedents, the total to other courts' decisions, the totals of citations by common-law tribunals to courts of other common-law states and of code states, and similarly for code-state tribunals. He even determined which part of the last-mentioned totals were citations in support of procedural points. Smith's prodigious number-crunching was not an idle exercise: he marshalled his statistics to demonstrate that the torrential outpouring of reports volumes could be stemmed by limiting judicial citations to "cases from their own reports covering the same [nonprocedural] ground" and that the practices of common-law and code states were not as divergent as had been supposed. The study of citations in court decisions has continued to be a popular research endeavor.
The application of sophisticated citation analysis to law has barely begun to be explored. In scientific disciplines, publications and their interconnections are byproducts of the research enterprise. In law, publications and their interconnections are close to the heart of the discipline. The citation analysis techniques developed in studying the natural and social sciences, now established methods for the historiography and sociology of science, possess even greater potential for assisting the historiography and sociology of law.
The principal sources of citation data in the natural sciences, social sciences, and humanities are the indexes published by the Institute for Scientific Information (ISI), a company founded by Eugene Garfield. Garfield is the leading exponent and the virtual inventor of sophisticated citation analysis. ISI publishes, and offers in electronic form as well, the Science Citation Index, the Social Sciences Citation Index, and the Arts and Humanities Citation Index. Each of these lists, for a given publication, the articles from indexed journals that cite it. Because of their wide coverage and the close subject relationship between citing and cited documents, the ISI indexes serve as extraordinarily powerful and intensive subject indexes to the worldwide scholarly literature of virtually all disciplines, and have become basic research tools.
The Social Sciences Citation Index includes over one hundred legal or law-related periodicals within its coverage, making it a remarkably powerful legal research tool. Another index source for legal citation data is the Shepard's Citations system of indexes, especially Shepard's Law Review Citations. The Shepard's "citators" for court decisions, by far the oldest citation indexes, supplied the inspiration for Garfield's application of the citation indexing principle to scientific and scholarly literature. Shepard's supplements the SSCI for periodical literature and provides an enormous body of citation data for case law and other primary legal sources.
Perhaps the most interesting use of legal citation data to date is in Richard Delgado's The Imperial Scholar: Reflections on a Review of Civil Rights Literature. Delgado studied citation counts and concluded that "I have discovered a . . . scholarly tradition. It consists of white scholars' systematic occupation of, and exclusion of minority scholars from, the central areas of civil rights scholarship. The mainstream writers tend to acknowledge only each others' work." His evidence of exclusion of nonwhites and women from the universe of civil rights citations is more impressionistic than quantitative, but Delgado's work suggests an important avenue for future research. Patterns of citation inclusion, omission, and emphasis create a canon of accepted thought which may be analyzed through techniques developed by information scientists.
Co-citation analysis offers intriguing possibilities for mapping legal scholarship or case law. The links between law and other disciplines, such as economics or literary criticism, could be diagrammed based on patterns of scholarly citation. The internal structure and external connections of intellectual movements such as critical legal studies could be illuminated through investigation of co-citation. "Research fronts" (subject areas of significant activity) of legal scholarship could be identified. The historical development of areas of legal thought could be charted by means of network diagrams showing citation connections between more recent and older writings, or time series of co-citation maps. Citation connections among publications are likely to be correlated with social links among authors, so that the historical and structural insights of citation analysis could provide grist for a sociology of legal scholarship.
Investigators of legal citation have available to them tools superior to those in other disciplines, making possible correspondingly richer results. Beyond the SSCI and Shepard's, the full-text online databases, LEXIS and WESTLAW, offer the capability of retrieving references to any type of source by locating mentions of the name or bibliographic citation of the source in the documents included in the database. LEXIS and WESTLAW also offer highly flexible capabilities for retrieving documents in which a desired combination of citations to different sources is present. The systems can also retrieve documents in which a citation is accompanied by desired words. This kind of citation/word search can be used to limit results to documents where a particular aspect of the cited source is referred to or where the cited source is referred to in a particular context. It may also be possible, using key-word searches, to focus on the verbal context surrounding citations in order to isolate "negative citations" (citations for the purpose of criticism), citations in which the cited source is characterized in a particular way, or citations in which two or more cited sources are associated or contrasted with each other in a particular fashion.
II. THE COMPILATION
My own forays into citation study have consisted of a 1985 article listing the fifty most-cited law review articles since 1947, followed by an anthology reprinting the most-cited law review articles of all time. The original article used Shepard's Law Review Citations as the basis for a ranking of the post-1947 law review articles most often cited within other law review articles. For the anthology, I supplemented this Shepard's ranking with data supplied to me by Eugene Garfield from the Social Sciences Citation Index database. The SSCI data enabled me to include the most-cited pre-1947 articles and the most-cited articles from certain journals not covered by Shepard's, such as the Journal of Law and Economics, resulting in a comprehensive anthology.
The present compilation of the most-cited articles from The Yale Law Journal is based on data drawn entirely from the citation database of the Social Sciences Citation Index. The SSCI is a superior resource to Shepard's for this purpose because the ISI data include citations to older articles, citations to all types of articles (notes, comments, book reviews, and memorials as well as "leading articles"), and citations appearing in all types of articles. Like Shepard's, the Social Sciences Citation Index examines over one hundred law reviews for citations, but, unlike Shepard's, the SSCI also includes citations to legal articles appearing in any of approximately 1,300 social science journals. It seems fitting, given the strong tradition of interdisciplinary orientation at the Yale Law School and The Yale Law Journal, to take citations in a broad range of forums into account in compiling a roster of the Journal's most-cited articles.
ISI generously provided me with a printout listing all Yale Law Journal articles receiving at least ten citations in the Social Sciences Citation Index database for 1966-1986. I then manually examined the 1956-1965 Cumulation of the SSCI and the individual volumes for 1987, 1988, January-April 1989, and May-August 1989 to complete the data.
Table I sets forth the thirty most-cited articles from The Yale Law Journal, based on the Social Sciences Citation Index through August 1989. The articles are ranked by number of citations received within other articles.
This list of most-cited articles is undoubtedly influenced by some chronological biases. Older articles are helped by the fact that they have had more time to accumulate citations, but hurt by the absence of pre-1956 citations in the source data. More recent articles are helped by the greater volume of periodical literature and greater incidence of footnoting in their era, increasing their opportunities for citation. The most recent articles, those from the 1980's, are still at the beginning of their citation histories and, in all but one instance, have not yet had time to qualify for such a list.
Because of the above-mentioned biases against older articles, I have made special note at the end of Table I of two articles whose citation totals are not among the thirty highest, but which undoubtedly would have qualified had the data extended further back in time. The inclusion of these articles by Wesley N. Hohfeld and William O. Douglas (with George E. Bates) also helps to add historical balance to the list, which is dominated by articles from the 1960's and 1970's. Similarly, I have included Harold D. Lasswell's and Myres S. McDougal's Legal Education and Public Policy and Karl N. Llewellyn's What Price Contract?, two older articles ranked twenty-second and twenty-eighth, along with the higher-ranking articles for which commentaries are printed.
I have supplemented the information in Table I with a Table II enumerating the ten articles (actually eleven because of a tie) which have received the most citations over approximately the past five years. The numbers appearing in Table II are the totals of citations in the Social Sciences Citation Index for the inclusive period of January 1985 to August 1989. Table II represents a snapshot of Yale Law Journal articles with exceptional contemporary impact, as opposed to Table I's long-term cumulative record. The second table is, in addition, a means for drawing attention to 1980's articles that, although precluded by their recency from ranking among the thirty highest overall, are being extensively cited.
There is another bias inherent in citation ranking. Some topics have a far larger scholarly literature than others, resulting in much greater citation potential for an article in a popular subject area than for one in an area less frequented by law reviews. Ashbel G. Gulliver's and Catherine J. Tilson's Classification of Gratuitous Transfers, for example, is a classic article in the law of trusts, but its citation count is modest because the volume of law review literature on trusts is modest. The list of the thirty most-cited Yale Law Journal articles leans heavily towards public law, particularly constitutional law; about a dozen of the articles may be categorized as constitutional in focus. No topical area other than constitutional law has more than three representatives.
It is clear, then, that my roster should be viewed as a list of high-impact articles rather than a definitive enumeration of influence, of significance, or of anything else. Even with this caveat, however, a perusal of the attributes of the listing and the listees may be of interest.
There are forty-one authors included in Table I, counting coauthors separately and counting individuals twice if two articles by them appear. The scholars who have two articles are Guido Calabresi, John Hart Ely, Thomas I. Emerson, Charles A. Reich, and Joseph L. Sax.
One of the forty-one authors, twenty-three of them identified their primary affiliation at the time of publication as Yale Law School. Three of these (Barbara A. Brown, Gail Falk, and Ann E. Freedman) were students at the time. Other academic affiliations were: University of California-Berkeley, two authors; Columbia, two; Duke, two (one of them, William R. Perdue, Jr., a student); Harvard, two (one of whom, George E. Bates, was a faculty member at the Business School rather than the Law School); and University of Colorado, Indiana University, Michigan, New York University, Stanford, and University of Utah, one each. Four of the authors were not academics at the time of publication: Edgar S. Cahn was a member of the Connecticut Bar, Jean C. Cahn was an attorney with the Legal Advisor's Office of the Department of State, Laurent B. Frantz was an editor of the Bancroft-Whitney Company, and J. Skelly Wright was a Judge on the United States Court of Appeals for the District of Columbia Circuit.
Nineteen of the authors attended Yale Law School. Other law schools attended were: Harvard, five authors; University of Chicago, three; Columbia, three; University of California-Berkeley, Duke, University of Freiburg, Loyola (New Orleans), University of Minnesota, University of Mississippi, Stanford, and University of Tennessee, one each. Three authors, George E. Bates, Ward S. Bowman, Jr., and Harold D. Lasswell, were, respectively, a finance professor, an economist, and a political scientist and had no formal legal training.
Of special interest in the context of a centennial is the fact that nine of the individual authors (accounting for twelve of the articles) were members of The Yale Law Journal. The Law Journal alumni are:
Barbara A. Brown, Editor, 1970-71
Edgar S. Cahn, Article and Book Review Editor, 1962-63
Guido Calabresi, Note Editor, 1957-58
John Hart Ely, Note and Comment Editor, 1962-63
Thomas I. Emerson, Editor-in-Chief, 1930-31
Abraham S. Goldstein, Article Editor, 1948-49
Joseph Goldstein, Article and Book Review Editor, 1951-52
Karl N. Llewellyn, Editor-in-Chief, 1918-19
Charles A. Reich, Editor-in-Chief, 1951-52
TABLE I. MOST-CITED ARTICLES FROM THE YALE LAW JOURNAL
ADDITIONAL OLDER ARTICLES
TABLE II. MOST-CITED ARTICLES FROM THE YALE LAW JOURNAL