A Short Toot of My Own Horn (A Little Off-Key)

As co-blogger Jonathan Adler noted here, Fred Shapiro and Margaret Pearce have published the results of their (pretty exhaustive) study of the “Most-Cited Law Review Articles of All Time.”   There’s some interesting stuff in there (at least, for those of you who are interested in the structure of the legal academy and its institutions).

To my surprise — my amazement, actually — the article David Johnson and I wrote back in 1996 on “Law and Borders: The Rise of Law in Cyberspace ” turns out to have been both the most-cited law review article published in 1996 (nosing out a couple of Cass Sunstein pieces), and, rather startlingly, the 2d most cited “intellectual property” article ever (just ahead of Stephen Breyer’s tenure piece at Harvard Law,  “An Uneasy Case for Copyright,” but a ways behind the #1, Frank Schechter’s classic on trademark law from 1927 (1927! talk about ‘legs’!)

Who knew!  It’s actually pretty funny, for two reasons.  First, because it’s not really an “intellectual property” article at all — it’s about (or it was trying to be about) “the rise of law in cyberspace”, i.e. that the Internet was going to change the way that law gets made and applied, at least as to activities taking place “on” the Internet.

Funnier still, I know for a fact that an enormous proportion of the citations to the paper took the following form:

“Some scholars, of course, have some rather silly ideas about cyberspace “self-regulation.”  See, e.g., Johnson and Post (1996) …”

Really.  I know this, because for many years I’ve had an automated search done weekly for “Law & Borders” citations; as it turns out, it was a pretty good way to keep up with the literature on cyberspace governance, because something like the above showed up in so many papers touching, even tangentially, on governance (and “intellectual property”) problems in cyberspace.  (It was almost invariable coupled with a reference to John Perry Barlow’s “Declaration of Independence for Cyberspace”).  A citation to L&B  became a kind of obligatory nod to the fringe of the debate — worth a nod, but, often, not more than that.   There should be a name for articles or ideas that play this rather odd, contrarian role in an ongoing debate —