Posted by: nplblog | 22nd Apr, 2015

Most Cited Private Law Articles Published in the Last 25 Years

Post by Ted Sichelman

Recently, I began a project to trace the influence of legal scholars from the late 19th century through the present using citation networks. Building off of this work, I’ve assembled a list of the most cited private law articles published over the last twenty-five years (see  below).

In determining whether an article fell into the “private law” category, I first performed a search in HeinOnline to retrieve all law journal articles published since 1990, ordered by citation count. Then, I reviewed the title and often the content of every highly cited article (more than 200 citations). I included in the most-cited list any article in the areas of torts, property, contracts, intellectual property, commercial law, wills & trusts, and remedies, as well as any article heavily drawing upon methods from those fields. (No other areas of private law had enough citations to justify inclusion.) I excluded articles in public law or hybrid fields, such as corporate law (unless the article focused on contract or commercial law), employment law, family law, securities law, cyberlaw, antitrust, and privacy. Of course, this process required some judgment, but no more than a few of the articles were close calls in my view (avoiding the thorny question of whether intellectual property is a hybrid field).

Note that the citation counts only reflect citations to published law review articles, and not books, cases, practitioner materials, unpublished articles, non-law articles, and other sources. As a check, I ran about ten articles through Lexis and generally found the citation counts on HeinOnline were within 15% of those tabulated in Lexis’s “Law Review and Journals” category, so it does not appear that the rankings would change much using Lexis. (Indeed, using Lexis for this sort of study would be nearly impossible to do from scratch, as there is no simple way to re-order the result list by citation count on Lexis, or Google Scholar for that matter. WestlawNext does allow re-ordering of results by citation count but does not display the actual citation count in the initial result list, making it too time-consuming to use.)

Last, I only report total citations, which biases the rankings towards older articles. Because I had to review many articles to assemble this list, it would have been too much work to review articles with fewer than 200 overall citations on the chance that their time-adjusted citation counts were high enough to justify inclusion. However, I plan to update this list annually, so more recent articles that are highly cited will appear in later iterations.

I apologize in advance for any errors or omissions—if you believe an article should be included, please let me know (tsichelman@sandiego.edu), and I’ll do my best to promptly make any deserving corrections.

 

50 Most Cited Private Law Articles: 1990-2015

[Edit: 5/21/15: links to (mostly) ungated versions added. HT: Richard Stern]

 

Rank

# of Citations

Author(s)

Title

Cite

1 698 Leval, Pierre N. Toward a Fair Use Standard [comments] 103 Harv. L. Rev. 1105 (1990)
2 598 Merges, Robert P.; Nelson, Richard R. On the Complex Economics of Patent Scope [article] 90 Colum. L. Rev. 839 (1990)
3 460 Litman, Jessica Public Domain, The [article] 39 Emory L. J. 965 (1990)
4 459 Bernstein, Lisa Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry 21 J. Legal Stud. 115 (1992)
5 458 Burk, Dan L.; Lemley, Mark A. Policy Levers in Patent Law [article] 89 Va. L. Rev. 1575 (2003)
6 457 Lemley, Mark A. Economics of Improvement in Intellectual Property Law [article] 75 Tex. L. Rev. 989 (1997)
7 443 Gordon, Wendy J. Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, A [article] 102 Yale L.J. 1533 (1993)
8 427 Harris, Cheryl I. Whiteness as Property [article] 106 Harv. L. Rev. 1707 (1993)
9 423 Lemley, Mark A. Rational Ignorance at the Patent Office [notes] 95 Nw. U. L. Rev. 1495 (2001)
10 419 Netanel, Neil Weinstock Copyright and a Democratic Civil Society [article] 106 Yale L.J. 283 (1996)
11 406 Heller, Michael A. Tragedy of the Anticommons: Property in the Transition from Marx to Markets, The [article] 111 Harv. L. Rev. 621 (1998)
12 389 Saks, Michael J. Do We Really Know Anything About the Behavior of the Tort Litigation System – and Why Not [article] 140 U. Pa. L. Rev. 1147 (1992)
13 377 Lemley, Mark A. Property, Intellectual Property, and Free Riding [article] 83 Tex. L. Rev. 1031 (2005)
14 351 Merges, Robert P. Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations [article] 84 Cal. L. Rev. 1293 (1996)
15 343 Samuelson, Pamela; Davis, Randall; Kapor, Mitchell D.; Reichman, J. H. Manifesto Concerning the Legal Protection of Computer Programs, A [article] 94 Colum. L. Rev. 2308 (1994)
16 335 Ellickson, Robert C. Property in Land [article] 102 Yale L.J. 1315 (1993)
17 322 Eisenberg, Melvin Aron Limits of Cognition and the Limits of Contract, The [article] 47 Stan. L. Rev. 211 (1995)
18 317 Bernstein, Lisa Merchant Law in a Merchant Court: Rethinking the Code’s Search for Immanent Business Norms [article] 144 U. Pa. L. Rev. 1765 (1996)
19 314 Lemley, Mark A. Modern Lanham Act and the Death of Common Sense, The [article] 108 Yale L.J. 1687 (1999)
20 301 Hansmann, Henry; Kraakman, Reinier Toward Unlimited Shareholder Liability for Corporate Torts [article] 100 Yale L.J. 1879 (1991)
21 289 Netanel, Neil Weinstock Locating Copyright within the First Amendment Skein [article] 54 Stan. L. Rev. 1 (2001)
22 283 Lemley, Mark A.; Volokh, Eugene Freedom of Speech and Injunctions in Intellectual Property Cases [article] 48 Duke L.J. 147 (1998)
23 280 Gordon, Wendy J. On Owning Information: Intellectual Property and the Restitutionary Impulse [article] [gated] 78 Va. L. Rev. 149 (1992)
24 279 Samuelson, Pamela Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised [article] 14 Berkeley Tech. L.J. 519 (1999)
24 279 Litman, Jessica Lawful Personal Use [article] 85 Tex. L. Rev. 1871 (2007)
26 278 Coffee, John C. Jr. Does Unlawful Mean Criminal: Reflections on the Disappearing Tort/Crime Distinction in American Law [article] 71 B.U. L. Rev. 193 (1991)
26 278 Merrill, Thomas W.; Smith, Henry E. Optimal Standardization in the Law of Numerus Clausus Principle [article] 110 Yale L.J. 1 (2000)
26 287 Schwartz, Alan; Scott, Robert E. Contract Theory and the Limits of Contract Law [article] 113 Yale L.J. 541 (2003)
 29  273 Allison, John R.; Lemley, Mark A. Empirical Evidence on the Validity of Litigated Patents [article] 26 AIPLA Q.J. 185 (1998)
 30  257 Lemley, Mark A. Intellectual Property and Shrinkwrap Licenses [article] 68 S. Cal. L. Rev. 1239 (1995)
 30  257 Sax, Joseph L. Property Rights and the Economy of Natures: Understanding Lucas v. South Carolina Coastal Council [article] 45 Stan. L. Rev. 1433 (1993)
 32  252 Merges, Robert P. As Many as Six Impossible Patents Before Breakfast: Property Rights for Business Concepts and Patent System Reform [article] 14 Berkeley Tech. L.J. 577 (1999)
 33  249 Polinsky, A. Mitchell; Shavell, Steven Punitive Damages: An Economic Analysis [article] 111 Harv. L. Rev. 869 (1998)
 33  249 Ayres, Ian; Talley, Eric Solomonic Bargaining: Dividing a Legal Entitlement to Facilitate Coasean Trade [article] 104 Yale L.J. 1027 (1995)
 35  246 Korobkin, Russell Bounded Rationality, Standard Form Contracts, and Unconscionability [article] 70 U. Chi. L. Rev. 1203 (2003)
 35  246 Ginsburg, Jane C. Creation and Commercial Value: Copyright Protection of Works of Information [article] [gated] 90 Colum. L. Rev. 1865 (1990)
 37  244  Cohen, Julie E. Right to Read Anonymously: A Closer Look at Copyright Management in Cyberspace, A [article] 28 Conn. L. Rev. 981 (1996)
 38  243 Jaszi, Peter Toward a Theory of Copyright: The Metamorphoses of Authorship [article] 1991 Duke L.J. 455 (1991)
 39  239 Kaplow, Louis; Shavell, Steven Property Rules Versus Liability Rules: An Economic Analysis [article] 109 Harv. L. Rev. 713 (1996)
 40  234 LoPucki, Lynn M. Death of Liability, The [article] 106 Yale L.J. 1 (1996)
 41  232 Korobkin, Russell Status Quo Bias and Contract Default Rules [article] 83 Cornell L. Rev. 608 (1998)
 42  229  Kahan, Marcel; Klausner, Michael Standardization and Innovation in Corporate Contracting (Or the Economics of Biolerplate) [article] [gated] 83 Va. L. Rev. 713 (1997)
 43  228 Rai, Arti Kaur Regulating Scientific Research: Intellectual Property Rights and the Norms of Science [article] 94 Nw. U. L. Rev. 77 (1999)
 44  225 Posner, Eric A. Law, Economics, and Inefficient Norms [article] 144 U. Pa. L. Rev. 1697 (1996)
 45  224 Boyle, James Second Enclosure Movement and the Construction of the Public Domain, The [article] 66 Law & Contemp. Probs. 33 (2003)
 46  221 Merrill, Thomas W. Property and the Right to Exclude [comments] 77 Neb. L. Rev. 730 (1998)
 47  220 Dreyfuss, Rochelle Cooper Expressive Genericity: Trademarks as Language in the Pepsi Generation [article] 65 Notre Dame L. Rev. 397 (1990)
 48  219 Schwartz, Gary T. Reality in the Economic Analysis of Tort Law: Does Tort Law Really Deter [article] 42 UCLA L. Rev. 377 (1994)
 49  216 Lemley, Mark A. Intellectual Property Rights and Standard-Setting Organizations [article] 90 Cal. L. Rev. 1889 (2002)
 50  215 Moore, Kimberly A. Judges, Juries, and Patent Cases – An Empirical Peek Inside the Black Box [article] 99 Mich. L. Rev. 365 (2000)

Responses

[…] “Recently, I began a project to trace the influence of legal scholars from the late 19th century through the present using citation networks. Building off of this work, I’ve assembled a list of the most cited private law articles published over the last twenty-five years (see below). In determining whether an article fell into the “private law” category, I first performed a search in HeinOnline to retrieve all law journal articles published since 1990, ordered by citation count …” (more) […]

If you would annotate this with links it would be a great tool

Ted:

I suppose this is a larger question for the blog itself, but what’s the source for your definition of private law? I understand the exclusion of employment law (though I would disagree substantively), but what about corporate and securities law? I thought those were pretty firmly ensconced as private law.

Matt

What Matt said. Also it appears to be about 20 or less sources for these articles which may be serendipitous. But coupled with the concentration of property, especially intellectual property, from a topical perspective seems to lead to some interesting conclusions or questions.

Will you now proceed to break down the data by individual field? Some fields, such as wills-and-trusts, do not appear at all within the top 50, because the articles within those fields are cited less frequently as a group than those from other fields (a function of the number of scholars the field attracts)– a phenomenon that skews the data. The most cited articles within each field are the most “influential” ones within private law as a whole.

Thanks for all of your comments.

On what counts as “private law,” the general thinking (especially from the editors) is that corporate and securities law is a hybrid of public and private rights and duties and, hence, not “firmly ensconced as private law” under a definition of private law as solely encompassing private rights and duties. Of course, portions of real property and intellectual property concern duties owed to the State, so this is a bit of a judgment call. I’ll draft a future post “Is Corporate Law Private Law?” at some point.

As for all of the articles being from a small number of sources and mostly in IP, I can assure you I searched every law journal in HeinOnline, which numbers over 2,000, including about 775,000 total law articles published since 1990.

As for most-cited lists in particular fields, I’ll do that on a going-forward basis (e.g., for Wills & Trusts, Contracts, etc.).

[…] blog entitled New Private Law.* As one of its introductory posts, the blog posted a list of the most cited private law articles in the last 25 years.  Scrolling through the list you’ll see that Russell Korobkin (UCLA) has two pieces in the top 50 […]

[…] Wendy Gordon featured in”Most Cited Private Law Articles Published in the Last 25 Years,&#8221… […]

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