What Law Review Articles Had a Major Influence on the Law?

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11 Responses

  1. Plainsman says:

    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.”

  2. Charles Reich, The New Property, 73 Yale L.J. 733, 738 (1964) – led to a revolution in procedural due process and welfare rights.

  3. Alfred Brophy says:

    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.)

  4. lawguy says:

    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?

  5. David Zaring says:

    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.

  6. Alfred Brophy says:

    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.

  7. Paul Gowder says:

    Pierre N. Leval, “Commentary: Toward a Fair Use Standard,” 103 Harv. L. Rev. 1105 (1990). Basically invented the notion of “transformative” uses.

  8. Bruce says:

    Ah, intellectual history.

  9. Edward Still says:

    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).

  10. 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…

  11. Felicia Kornbluh says:

    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.