Monday, September 21, 2015

Legal scholarship that has affected the law


Prof. Jeff Sovern (St. John's) writes:

We often hear Chief Justice Roberts’s famous complaint about law review articles: “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar.” I’ve been wondering how many law review articles have changed the law.  Given your role, through your blog, as a connector of legal academics, I wondered if you would be interested in inviting people who know of such articles to list them in the comments.  I would limit it to articles written in the last ten or fifteen years on the theory that the Chief Justice was probably not complaining about older scholarship.  I can start the list off with citations my co-author, Dee Pridgen of Wyoming, compiled to articles in our field of consumer law.  Her list consists of Oren Bar-Gill and Elizabeth Warren, Making Credit Safer, 157 U.PA. L. Rev.1 (2008); Kathleen C. Engel and Patricia McCoy, A Tale of Three Markets, 82 Tex. L. Rev. 439 (2003). Kathleen C. Engel and Patricia A. McCoy, A Tale of Three Markets: The Law and Economics of Predatory Lending, 80 Tex. L. Rev. 1255 (2002)—all of which contributed to the Dodd-Frank Act; Oren Bar-Gill, Seduction by Plastic, 98 Nw. U.L. Rev. 1373 (2004)—which led to the Credit CARD Act; and Steven M. Graves and Christopher L. Peterson, Predatory Lending and the Military: The Law and Geography of “Payday” Loan in Military Towns, 66 Ohio St. L.J. 653 (2005)—which brought about the Military Loan Act. The pieces on that list produced statutes, rather than case law, but I would still count them. Of course, it is impossible to show that the changes in the law would not have occurred anyway in the absence of the writings, but perhaps we can take it on faith that the articles helped push things along.

Comments are open for other examples.  (And just for the record, the idea that legal scholarship has to be interesting to the Chief Justice or to lawmakers is silly, though if some is, that's fine too [assuming it's a good influence!].)

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I don't know if this is an ironic example, or an (ultimately) ineffectual one, but---

Posted by: AndyK | Sep 14, 2015 7:00:49 AM

I think this is fairly common in IP (that is, articles that influenced the outcome, and are not merely cited), at every level of the courts from trial courts to the Supreme Court – off the top of my head I can think of:

Mark A. Lemley, Michael Risch, Ted Sichelman, & Polk Wagner, Life After Bilski, 63 Stan. L. Rev. 1315 (2011) (in Mayo v. Prometheus, 132 S.Ct. 1289 (2012));

Dan L. Burk, The Trouble with Trespass, 4 J. Small & Emerging Bus.L. 27 (2000) (in Intel v. Hamidi, 71 P.3d 296 (Cal. 2003));

Dan L. Burk & Mark A. Lemley, Quantum Patent Mechanics, 9 LEWIS & CLARK L. REV. 29 (2005) (in Oplus Techs., Ltd. v. Vizio, Inc., 2012 U.S. Dist. LEXIS 165308, (C.D. Cal. October 31, 2012));

and I am sure a little searching would turn up quite a few others.

Posted by: Dan L. Burk | Sep 14, 2015 8:16:49 AM

I object to the underlying endeavor here, because any attempt to answer will be of necessity under- and over-inclusive. If the question is “Which articles have influenced law and policy?,” then thousands of articles would need to be listed. If the question is “Which articles have been solely responsible for a statute, regulation, or legal opinion?,” then the answer would be zero. In between, the nature and scope of influence is wide-ranging. A student note might flag a particular issue for a state legislature, while the Hart-Fuller debate likely informed how a generation of judges approached questions of law. So my concern is that these lists reinforce some sense of the unimportance of legal scholarship, since they generally only cite to a handful of examples, and none of the examples can claim *exclusive* causation. But in reality, legal scholarship is a critical part of the law & policy ecosystem. Perhaps it’d be better to imagine a world without legal scholarship, and then try to think about how judicial, legislative, and regulatory decisions would be made and evaluated by the media, the public, and the players themselves.

BL COMMENT: I'm optimistic the Hart-Fuller debate did not influence judges! More seriously, that there is a continuum of influence doesn't mean there aren't some clear cases, and I guess that's what's being sought.

Posted by: Matt Bodie | Sep 14, 2015 12:33:28 PM

Ok, I’ll bite. One of the clearest examples of this in the world of equal opportunity law is Vicki Schultz’ 1998 Yale Law Journal article, “Reconceptualizing Sexual Harassment.” This is an interesting one because the entire field of sexual harassment law, which this article essentially remade, is judge-made law, built on top of anti-discrimination statutes that generally predate the concept of sexual harassment. In the early years, the dominant understanding of sexual harassment focused on the sexualized nature of the harassment as the problem (bosses groping subordinates, sexualized insults, sleep with me or you’re fired, etc). Schultz made a conceptual argument that what makes sexual harassment sexual harassment isn’t that it’s sexualized; it’s that it’s because of sex. So when the guys on an almost-all-male factory floor sabotage the tools and equipment of the only woman working there in an effort to push her to quit, that’s sexual harassment, even if nothing about it is sexualized. Schultz’ article was widely known and discussed among practitioners. Today, to a substantial degree, her view is the dominant one; judges, even quite conservative judges, regularly find actionable sexual harassment of the kind she argued we ought to count. Causation is hard to prove, but the case here is about as strong as you’re likely to find.

Posted by: Joey Fishkin | Sep 14, 2015 8:45:46 PM

Though not limited to only the last ten to fifteen years, for a list of some influential legal scholarship I'd recommend: Robert J. Condlin, "Practice Ready Graduates": A Millennialist Fantasy, 31 Touro L. Rev. 75, 84 n.28 (2015).

From the last ten to fifteen years Condlin lists:

Saule T. Omarova, The Merchants of Wall Street: Banking, Commerce, and Commodities, 98 Minn. L. Rev. 265 (2013); &,

Elizabeth Warren, Unsafe at Any Rate, Democracy (Summer 2007),
available at

Posted by: Fabio Arcila, Jr. | Sep 15, 2015 5:14:34 AM

A draft of my article on carried interest, Two and Twenty: Taxing Partnership Profits in Private Equity Funds (NYU L Rev 2008), sparked a debate in Congress and led to proposed legislation. The debate continues.

Gregg Polsky's work on management fee waivers in the same context helped lead to new regulations released last month.

More broadly, the academic work of tax professors and economists in the 1970s and early 1980s led to a Treasury Report on tax reform in 1984, which eventually led to the Tax Reform Act of 1986. It can be difficult to trace the antecedents of a particular piece of legislation, but there is little doubt that in tax, academic work has a substantial impact on legislation.

Vic Fleischer

Posted by: Victor Fleischer | Sep 15, 2015 10:34:14 AM

Like Matt, I'm not sure what constitutes "changed the law" in Jeff's phrase--I'll offer one example that hews to Roberts' apparent criteria for relevance: Chief Justice Roberts spoke at the ALI annual meeting last year and presented an award. So I infer he would agree that restatements matter. The first publicly proposed suggestion that the ALI prepare a Restatement of Copyright came from Ann Bartow (then at Pace, now at UNH) in a gutsy law review article. Less than a year later, the ALI announced that this new restatement was underway.

Posted by: Anita Bernstein | Sep 15, 2015 11:11:55 PM

In the tax field scholarship has had an enormous influence, from mainstream pieces like Bittker or Surrey on a comprehensive tax base to (then) radical articles like Grace Blumberg, who was I think then a law student, on the tax treatment of women. Right now there is a parade of work on international and comparative tax (Shaviro, Kleinbard, Avi-Yonah) that has a direct and lasting effect on the public policy debate. I think this business about law reviews not being practical enough is mostly nonsense, like people saying that schools should stop teaching useless subjects like Russian and Chinese and go back to teaching the three R's. It's basically anti-intellectualism masquerading as practical wisdom and it isn't remotely persuasive.

Posted by: mike livingston | Sep 17, 2015 6:14:46 PM

"The Scope of In-firm Privilege" by Elizabeth Chambliss had a notable impact on significant decisions in Georgia and Massachusetts.

Posted by: Mike Frisch | Sep 27, 2015 7:01:23 AM

Just in the legal news today: Robert Brauneis, Copyright and the World's Most Popular Song, 56 J. Copyright Soc'y U.S.A. 335 (2009). It argued that "Happy Birthday" was not likely still under valid copyright protection. Now "a federal judge in Los Angeles has just ruled that Warner/Chappell Music Inc.does not hold a copyright to the song's lyrics, upending an 80-year licensing campaign that generated an estimated $2 million per year." ($)

Posted by: Fabio Arcila, Jr. | Sep 30, 2015 5:18:13 PM

Matt Bodie says “If the question is ‘Which articles have been solely responsible for a statute, regulation, or legal opinion?,’ then the answer would be zero.” WRONG!

My first law review piece, written when I was still a law student [Banzhaf, Copyright Protection for Computer Programs, 64 Colum. L. Rev. 1274 (1964)] established, for the first time, that computer programs could be protected by copyrights; see, e.g., NEW YORK TIMES, Computer Program Copyrighted For The First Time,] My testimony before Congress about this led directly to changes to the U.S. copyright statute.

My second law review article, also written while I was still a law student [Banzhaf, Weighted Voting Doesn't Work: A Mathematical Analysis, 19 Rutgers L. Rev. 317 (1965)] provided the basis for a New York Court of Appeals decision [ Iannucci v. Board of Supervisors, 229 N.E. 2d 195 (1967). which held many voting systems unconstitutional unless they met the standards I laid out under what is now called the “Banzhaf Index of Voting Power” which, incidentally, is now widely taught in math classes at both the college and high school level.

Other pieces which I have written - although not in law reviews - led directly to the ban on cigarette commercials [Readers Digest called me “The Man Behind the Ban on Cigarette Commercials”]; the 50% surcharge on smokers under Obamacare, the use of the Framework Convention on Tobacco Control [FCTC] to ban public smoking in major countries; bans on cigarette advertising in several countries, etc.

Pieces written by law students under my direction led directly to limits on smoking on air planes; standards for safer school buses; a law suit forcing Spiro T. Agnew to return the money he took in bribes, one of the most far reaching decisions on legal standing to protect the environment [United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973)]; improved warnings on birth control pills; a $12 million dollar settlement by McDonald’s which has now led to a rash of fat law suits, etc.

Ironically, even my first legal article, which I wrote as an undergraduate student and hacker at M.I.T., and which appeared in a humor magazine rather than a law review, has had and is continuing to have a significant impact even today on computer programming. See

It is important to realize that all legal scholarship does not have to be in law review articles. Legal scholarship which appears in legal briefs, filings before agencies, and in proposals for legislation can be far more effective than comparable scholarship in law reviews.

Indeed, as I have noted in the Washington Post, New York Times, and other publications, those who think that legal scholarship can only appear in published articles may well be called ''myopic legal eunuchs.''.

Posted by: GWU Law Prof John Banzhaf | Oct 4, 2015 10:01:02 AM

I had the good fortune to have an article create a tangible impact at the international level recently. In February 2014, while my article, "Beyond International Commercial Arbitration? The Promise of International Commercial Mediation,” 45 Washington University Journal of Law & Policy 11 (2014) , (, was still in production, I attended a meeting of the Department of State's Advisory Committee on Private International Law regarding possible new projects for UNCITRAL Working Group II. My article had identified a gap in the international legal regime regarding enforcement of mediated settlements, and I proposed a new instrument in this area of law. The State Department liked the idea and decided to propose a new convention to UNCITRAL in July 2014 based on a number of the recommendations in the article. Though the process is still ongoing at UNCITRAL, we can definitely tie this development to legal scholarship!

Posted by: SI Strong | Oct 5, 2015 3:21:30 AM

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