What Law Review Articles Had a Major Influence on the Law?
posted by Daniel Solove
Al Brophy’s post about Roy Lucas’s law review article helping to form the intellectual foundations for Roe v. Wade has got me thinking about other law review articles that have had a lasting influence on the law.
Over on his new blog, Follow the Flag, Alan Tauber mentions Abbot Lawrence Lowell, The Status of Our New Possessions – A Third View, 13 Harv. L. Rev. 21 (1899), which formed the basis for the Territorial Incorporation Doctrine.
I’m most familiar with the articles in my field, privacy law, which has two law review articles having a major impact on the law.
First is Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890), a law review article that spawned the four privacy torts, most of which have been adopted in most states.
William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960), also had an impact in the development of privacy law, as his formulations of the privacy torts were adopted by the Restatement of Torts, and they are the most common formulations of the torts today. [Of course, it helped that Prosser was the Reporter for the Second Restatement of Torts.]
Can anybody identify others? I’m looking for law review articles that have had a major influence on the law — statutory law or court decisions. I’m not looking for just a local impact — so if an article just influenced a particular state court decision or law, this isn’t broad enough. I want to identify articles that have changed the law in numerous states (as with the Warren and Brandeis article) or sparked a federal law. I’m also not looking for articles that are merely cited a lot by court decisions; I’m looking for ones that influenced a particular doctrine. Of course, articles can be influential in other ways, such as influencing other scholars, etc., but I want to keep the focus of this question on articles having a major legal impact.
November 27, 2005 at 5:37 pm
Posted in: Articles and Books
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Responses (11)
Plainsman - November 27, 2005 at 6:38 pm
Philip Areeda & Donald F. Turner, Predatory Pricing and Related Practices Under
Section 2 of the Sherman Act, 88 Harv. L. Rev. 697 (1975).
The article articulated a cost-based test for deciding whether a price structure constitutes predatory pricing in violation of the Sherman Act. Virtually all the federal circuit courts subsequently adopted one or another version of this test, citing Areeda and Turner as the source. Indeed, the standard is commonly referred to as the “Areeda-Turner test.”
Paul M. Secunda - November 27, 2005 at 8:43 pm
Charles Reich, The New Property, 73 Yale L.J. 733, 738 (1964) – led to a revolution in procedural due process and welfare rights.
Alfred Brophy - November 27, 2005 at 10:03 pm
Henry Monaghan’s Marbury and the Administrative State, 83 Columbia Law Review 1 (1983) has been credited (by Gerald Neuman in the 21 University of Michigan Journal of Law Review 697, 709-10 (1988)) with creating the Chevron doctrine. I remember when I first read Professor Neuman’s article some years ago thinking how modest Monaghan had been as a teacher. I was surprised that Monaghan had not done more to take credit for the idea. (Of course the fact that Neuman titled his article, “Law Review Articles that Backfire” may have had something to do with Monaghan’s desire to, in some ways distance himself from the Supreme Court’s adoption (and modification) of his reasoning. Though Neuman was quite complimentary of Monaghan’s article.)
lawguy - November 27, 2005 at 10:24 pm
Paul,
Was that Charles Reich article actually influential? I tend to think that it had no influence at all, but was just cited by a clerk (probably one of Reich’s students, or someone who helped edit it for the YLJ) as window dressing to help justify Goldberg v. Kelly. Have courts cited it beyond Goldberg?
Al,
I have never heard that Monaghan’s article created Chevron. What support does Neuman offer for his claim?
David Zaring - November 27, 2005 at 10:30 pm
Eugene Volokh has a list of student notes that have been cited by a bunch of federal courts in the introduction to his book on academic legal writing. They’re well worth a look. I’d also thought that Posner’s Economic Analysis of Law also had a big effect on antitrust. In international law, scholarship can in theory help identify customary norms (which are legally binding on states), but that mostly adheres to the benefit of treatise writers.
But I gotta say, this list would be miles long if you really want to pursue it. The costs of accidents, the development of strict liability, articles that inspired the authors of the UCC – all attributable to one professor or another, and that’s just the first year. If you want au courant, there’s some authors out there that would take credit for Apprendi, Booker, Fan Fan, and the other sentencing stuff. And on it would go.
Alfred Brophy - November 28, 2005 at 11:34 am
Hi Lawguy,
Very interesting question, actually–how do we know that Monaghan’s article was the origin of Chevron? Tracing influence is all the harder because he’s not cited in it. Neuman uses the similarity in approach in Chevron and Marbury and the Administrative State.
Neuman says the article (which was published in the January 1983) was cited by Justice White in dissent in Chada v. INS in June 1983. Then his “thesis reappared, without citation, as the core of Justice Steven’s new approach to statutory interpretation in Chevron. . . . Chevron‘s equation between deference and delegation adopt’s Monaghan’s conceptualization, but its implementation involves simplifications that Monaghan never recommended.” 21 U.Mich.J.L. Reform at 712.
Paul Gowder - November 28, 2005 at 11:51 am
Pierre N. Leval, “Commentary: Toward a Fair Use Standard,” 103 Harv. L. Rev. 1105 (1990). Basically invented the notion of “transformative” uses.
Bruce - November 28, 2005 at 1:19 pm
Ah, intellectual history.
Edward Still - November 28, 2005 at 10:56 pm
BLACKSHER, James U. and Larry MENEFEE, From Reynolds v. Sims to City of Mobile v. Bolden: Have the White Suburbs Commandeered the Fifteenth Amendment?, 34 Hast. L.J. 1 (1982).
The three-part test in the article was featured prominently in the plurality/majority opinion in Thornburg v. Gingles, 474 US 808 (1985).
Crescat Sententia - December 14, 2005 at 10:58 am
mutations in thought
Over the summer, I had an argument with a Friend of Crescat about whether legal scholars ever changed the world (at a considerably more abstract level than Dan Solove’s fascinating investigation). Reading a speech by Frank Easterbrook in the University…
Felicia Kornbluh - December 19, 2009 at 3:10 pm
RE: Charles Reich, having studied welfare rights for many years, I can tell you that the ideas Reich put forward were percolating among activists in the northern civil rights movement before he published them, and among some activist social workers. At the same time, it made a difference that he put those ideas into a scholarly form. His articles from that period (including New Prop) were backed by the Field Foundation and were circulated very widely to an enthusiastic group of other legal activist/scholars, social workers, state welfare administrators, judges, etc.
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