I've written about the importance of opening lines before. Let me ask a trivia question related to the opening line of a law review article. This one will probably be pretty easy. Whose article began with this memorable line:
There are places in law through which a pair of mutually oblivious doctrines run in infinitely parallel contrariety, like a pair of poolhall scoring racks on one or the other of which, seemingly at random, cases get hung up.
Legal academics who work across disciplines sometimes find themselves in the uncomfortable position of explaining to their stunned colleagues the process by which second- and third-year law students, armed with author c.v.s, decide what gets published and where.
Well, get ready to get your schadenfreude on. For the past 10 months, John Bohannon, a contributing correspondent for Science magazine, has been conducting a sting of (other) science journals and their peer review processes. Much like the famed Sokal hoax, Science submitted to 304 journals a bogus paper written by a fictitious researcher from a nonexistent institution. The paper described "the anticancer properties of a chemical that [the fictitious researcher] had extracted from a lichen," and according to Bohannon, "[a]ny reviewer with more than a high-school knowledge of chemistry and the ability to understand a basic data plot should have spotted the paper's short-comings immediately" and rejected it promptly. And yet, over half of the journals accepted the paper. Recall that the bogus paper purports to report on the discovery of the anticancer properties of lichen. Let the prospect of bogus cancer research published in peer reviewed medical journals sink in.
At Duke, at least, six of their nine journals - yes, nine journals - are moving to a digital-only format. Only the Alaska Law Journal, Law and Contemporary Problems, and the Duke Law Journal will continue to appear in paper.
I haven't done any research on this issue, but I imagine that increasing numbers of secondary journals are moving online. This decision could trigger reconsideration of this issue by a flock of other law schools. In tight budget times, paper journals may seem like a pretty ripe target.
Greetings, and thank you to Al & Dan for having me here. So, I expect to talk about state constitutionalism mostly, probably a bit about the state of the state of law schools debate, some news from Detroit, maybe a word or two about being married to a rabbi, and likely some miscellany, 'cause everybody loves miscellany.
On October 11, the Wayne Law Review is hosting a fantastic symposium centered on the 50th anniversary of the Michigan constitution. I'll definitely be saying more about that.
But for now, I'll share what I told the incoming law review editors at their orientation a couple of weeks ago. Lots of people, both in and out of the legal academy, find the idea pretty absurd that grad students get to decide what does and does not get published in legal scholarship. I insist, however, that we do not lack "peer review"-- it just takes place after publication instead of beforehand (through citation networks and the like). As Al noted last year, this means that instead of a handful of elite gatekeepers determining what ideas other scholars can read, we can routinely get published some pieces that genuinely buck the conventional wisdom. (Note that I am not implying here some malevolent cabal or pernicious old boys' network; I just mean that the very people whose ideas have created the conventional wisdom are naturally unlikely to be impressed by outlier ideas that threaten it). Obviously, much of, if not most, convention-bucking work is useless or worse. Sometimes it's great, though. We just don't know until after we read it. And when student editors put their shoulders to the wheel, source-checking each reference and polishing the style in a piece to which the leading national scholars of the day would not give the same respect, they are participating in a noble cause. They are giving ideas that just might change the way we think about law a chance to see the sunshine. A world without them would, it seems to me, be one much more conformist and static, much less capable of progressive re-imagination or meaningful challenge to the powers that be. So I say kudos to student law review editors everywhere and keep up the hard work.
[I do not have any work pending in the hands of articles editors right now, so those of you feeling flattered should save it for the next cycle, whenever that might be.]
Here's a stupid question for the end of July. I was wondering if anyone would like to weigh in on the issue of formatting articles for submission to law reviews. I have usually used the Word template that Eugene Volokh posts on his website because many years ago I was told it would give me an "edge" at getting editors' attention. Now, everyone uses that format and I have inadvertently been drafting an article in a good old-fashioned Word format. I'm wondering if now I could buck the trend and my article will garner attention for *failing* to look like all the other articles.
Seriously, though, I'm interested in whether there are any specific word templates, fonts etc that law review editors prefer for submissions these days. In the digital age, I assume they can re-format however they like at the push of a button so it's probably a moot point, but it's been niggling away at me so I thought I see if there are any new trends emerging.
From an email message that I received earlier today from UMKC law professors Nancy Levit and Allen Rostron:
We just updated our charts about law journal submissions, expedites, and rankings from different sources for the fall 2013 submission season covering the 203 main journals of each law school.
The highlights from this round of revisions include the following:
First, the list of law reviews is now up from 202 to 203 with the addition of a brand new law review, and for the first time it includes a law review that accepts submissions by Twitter. (The new law review is Belmont. The Twitter-friendly law review is Case Western Reserve.)
Second, the chart now includes as much information as possible about what law reviews are not accepting submissions right now, what dates they say they'll resume accepting submissions, etc.
The first chart contains information about each journal’s preferences about methods for submitting articles (e.g., e-mail, ExpressO, Scholastica, or regular mail), as well as special formatting requirements and how to request an expedited review. The second chart contains rankings information from U.S. News and World Report as well as data from Washington & Lee’s law review website.
Information for Submitting Articles to Law Reviews and Journals: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019029
welcome you to forward the link to anyone whom you think might find it useful.
We appreciate any feedback you might have.
An exciting special issue on law and literature is forthcoming from University of Toronto Quarterly. The issue, due out in August, is being edited by Greig Henderson (Dept. of English, University of Toronto), Cheryl Suzack (Departments of English and Aboriginal Studies, University of Toronto), and Simon Stern (Dept. of English and Faculty of Law, University of Toronto). As far as I know, all of the pieces were invited submissions. A fuller description of the issue is available here.
The articles are as follows:
Elizabeth S. Anker (English Dept. at Cornell): “In the Shadowlands of Sovereignty: The Politics of Enclosure in Alejandro González Iñárritu’s Babel”
Mark Antaki (Faculty of Law at McGill): “Genre, Critique and Human Rights”
Dale Barleben (Dept. of English at John Jay College, CUNY): “Law’s Empire Writes Back: Legal Positivism and Literary Rejoinder in Wilde’s De Profundis”
Todd Butler (Dept. of English at Washington State University): "Victim Impact Statements, New Media Technologies, and the Classical Rhetoric of Sincerity”
Gregg Crane (English Dept. at Michigan): “The Hard Case: Billy Budd and the Judgment Intuitive”
Ann E. Tweedy (Hamline Law): “How Allotment-Era Literature Can Inform Current Controversies About Tribal Jurisdiction and Reservation Diminishment”
Nicole M. Wright (Postdoctoral Scholar at Chicago): “‘A More Exact Purity’: Legal Authority and Conspicuous Amalgamation in Eighteenth-Century English Law Guides and the Oxford Law Lectures of Sir Robert Chambers and Samuel Johnson.”
My piece responds to the Supreme Court's practice of justifying denials of tribal jurisdiction over non-members in current cases based on the presumed expectations of non-Indian settlers during the allotment-era that reservations would disappear (thus eliminating any possibility of tribal jurisdiction). In a recent piece in the Seattle University Law Review, I examined historical newspaper articles from the allotment era that addressed the opening of Sioux reservations in South Dakota. I argued that, because many of these articles revealed injustices to tribes in the takings of their lands, settlers who read the articles--or who were privy to the information in them-- could not have formed justifiable expectations that the reservations would disappear. In this new piece, I examine some works of allotment-era literature set in South Dakota and nearby areas to see if these works similarly provide notice of such injustices. The results in the case of the literature are more mixed, but some works--particularly those of Zitkala-Sa and Doane Robinson--provide notice of the injustices inherent in land takings.
In the recent past, I've raised some objections to Scholastica's pricing for law review submissions. Scholastica's pricing is especially disappointing to me because ExpressO has some serious problems, and competition in this marketplace would be very welcome.
One of the things I don't like about ExpressO is how much they seem to encourage the resume bias that plays a large role in the law reveiw selection process. I was reminded of this issue when one of my colleagues sent me an e-mail she had received from a journal. That e-mail attached an e-mail sent to the journal by ExpressO notifying the journal of her submission. The re: line of the e-mail said "ExpressO Submission by [professor's name] at Widener University School of Law". I suppose that is all some journal editors need to know, sad to say. I think it would be a lot more informative, in the right way, if the re: line said "ExpressO Submission by [professor's name] - [article title]". That might encourage editors to at least look at the abstract before they decide to ignore the submission or just hit "reject".
Has been posted on Balkinization and on SSRN The First Amendment is an Information Policy. This paper sounds like it could have interesting implications for an issue which I intend to return to on the scholarship front, that is, what happens when some of what appears in law reviews has been "sponsored" or "commissioned" ? And when I say "sponsored" or "commissioned" I am not referring to law school summer research grants. Such grants are never conditioned on the topic or on the author reaching a particular result. The only string attached are usually that the faculty member actually produce something that results in a publication.
In contrast, in, what for lack of a better word I will call "commissioned" or "sponsored" scholarship, the author has been paid precisely because of the viewpoint he or she espouses. Drug company sponsorship, or worse ghostwriting (i.e. paying a doctor to add his or her name to an article) has long been a problem in medical journals relating to pharmaceutical drug research and has led to some overhauls on most medical journal's requirements about financial disclosures. Most law reviews don't have such policies. Should they? A few have implemented them. Perhaps more will come. But the fact that there is some interest in financially supporting the production of law review scholarship to promote a particular point of view raises some interesting questions about the reliability of the information, whether "the marketplace" is a good sorter of the best ideas, as the "marketplace of ideas" metaphor is often used to imply. And, more prosaically, illustrates that somebody thinks law reviews are worthwhile enough to pay for the production of these sorts of articles. Who is doing this, how much of this goes on and what difference it makes are big unknowns at this point but may bear some investigation.
In the meantime, going back to Professor Balkin's paper, I think there might be some interesting implications for these questions given what looks like his thesis --- that one purpose of the First Amendment is to generate information. Stay tuned.
Lawrence Solum over at the Legal Theory Blog has this excellent discussion of the ex ante and ex post question as it comes up in analyzing best legal rules and depending on the orientation of the analyst as to whether we care most about outcomes (regardless of fault) or fault (regardless of outcomes). Ex Ante and Ex Post. (These would be extreme ends of the spectrum).
But the ex ante/ex post problem also extend to the analysis of any issue where you are not sure what the right distribution of resources and investments are. Ex post, when you know how a particular decision has come out, that decision tends to look inevitable and thus it is easy to criticize the choices made or not made as ones which ignore the "obvious" likely outcome. This is often termed hindsight bias (or Monday morning quarterbacking) and can make decisions seem easier than they were at the time they were made.
In contrast, a lot of decisions require us to make assessments ex ante - before we know how it is going to "turn out." And that is one of the problems raised in an earlier post on the value of scholarship. How can you calibrate the right amount to invest (even assuming you could come up with an accurate assessment of its cost, a proposition I am skeptical about), if you don't know how much of the "bad" stuff you have to support in order to get the "good" stuff. And that also omits the even more problematic question about assigning labels like "good" and "bad" to something which may defy easy calculation in market terms.
There is an analog to this problem in advertising circles. The old joke goes: "I know that 50 % of my advertising budget is wasted. I just don't know which half!" For advertisers the ROI problem (return on investment) is both ex ante and ex post since, although they can track dollar returns from investments in certain advertising campaigns, they can never be sure that they know why a given campaign seemed to drive sales so successfully. The annals of advertising lore are littered with examples of an advertiser trying to take a proven formula only to have it bomb. Hence the joke. But advertisers have one advantage over academics in any field - they are marketing a product which is sold in the market, not in the so-called "marketplace of ideas," one with a price in dollars (which of course may have little or not connection to its intrinsic worth in some other system of valuation) and advertisers can measure the sales number before and after a campaign. They may not be able to say for sure that it was the campaign that made the difference, but it is often a reasonable inference.
For the hapless evaluator of legal scholarship there are no such clear metrics for tracking the dollar value of scholarship and such metrics as exist (citation counts, downloads, US News peer reputation scores) are, as I observed previously, incomplete at best and woefully inadequate at worst. It may be that investments in scholarship are maldistributed, although I have yet to see an argument for this proposition that doesn't rely on generalizations about legal academics and law schools that I don't think apply as widely as some argue. Maybe the expenditures on scholarship should be reduced. But deciding on the "which half" part of that question is surely part of the problem presented by any such proposal.
Over at CoOps, Dave Hoffman has graciously taken the time to respond to my query about why there’s been such a fuss over Scholastica’s diversity widget, given prevailing attitudes in legal academia and elsewhere in the academy that when selecting participants in conferences, workshops, colloquia, and the like — which I’ll call, for short, “speaking opportunities” and which may or may not also involve publication opportunities — it is somewhere between permissible and obligatory to consider diversity. Dave argues that symposia (I don’t know if he sees symposia as different than the other speaking opportunities I mention) and articles serve different purposes, and hence, selection criteria should be different in these two contexts. Go read his argument, then come back for my response — and a bit of a confession.
As some of you may have noticed, (at least some of) legal academia is abuzz about the fact that Scholastica, the ExpressO competitor, asks authors to provide optional information about their gender identity, race, sexual orientation, and any additional “hardship diversity,” such as socio-economic status or geographic region. In response to objections by some, Scholastica has given individual journals the option of requesting the information or not, and to date, only California Law Review and NYU Law Review have done so. As a result, when you submit through Scholastica, you will be asked to provide optional demographic information only if you submit to one of those two journals. Josh Blackman has the background, including screen shots of the prior and current “diversity widget” and responses from various law review editors (here, here, and here). You can find additional musings about all of this at CoOps (here, here, and here), Prawfs, ProfessorBainbridge, and the VC. (Update 2/16/13, 5:30 pm: Kaimipono Wenger has a thoughtful Defense of Law Review Affirmative Action over at CoOps.)
Although these musing reflect a range of views, the majority, it seems to me, objects — in some cases vehemently, with calls for a boycott — to the notion of journals deliberately selecting articles on any basis other than merit. My immediate interest in this is not about the appropriateness, per se, of what I’ll call, for simplicity’s sake, affirmative action (AA) in article selection. (For thoughts on that, see the links above.) Rather, I’ve been struck by the strength of objections to this apparent practice in light of equally strong beliefs in the appropriateness of AA when it comes to selecting conference participants, and the like. Here’s the question I posed on one of Dave Hoffman’s Scholastica threads over at CoOps:
I’m curious if you have a position on using gender, race, and the like to select invitees for symposia, conferences, and similar speaking engagements. Is doing so an equally bad idea, in your view, or are there differences between the two situations that suggest different answers? I ask because my first instinct, on hearing of (what it seems to me fair to call) affirmative action at the level of scholarship selection, was that this, like many other aspects of legal scholarship, is a clear anomaly within academia at large (quite apart from its merits or lack thereof as a practice). But then I considered the fairly common — and fairly strong — norm (if not necessarily consistent practice) elsewhere in academia of trying to ensure that one invites a suitably diverse panel of speakers. Indeed, in philosophy, entire boycotts are currently afoot in response to perceptions that conferences failed to include sufficient numbers of women. So I’m wondering whether you think these situations are on all fours, or whether there are significant relevant differences. (To be clear, I don’t mean to be asking a leading question; I’m truly just curious about what you and others commenting on this think about this possibly analogous practice.)
Although “Anon” responded that s/he viewed these as “analytically equal” (and equally inappropriate), one "AnonProf" argued at some length that the two practices could in fact be distinguished, with AA appropriate — indeed, “very important” — for symposia invites, but not for article selections. Dave, who has said that AA in article selection is a “terrible, terrible practice,” agreed. [Update 2/17/13, 11:05 pm: Dave has clarified his reasons for distinguishing article selection from symposia invites here.]
As I said there, “I’m actually not convinced that the two situations are much different — and I’m definitely not convinced that any difference between them is as large as “very important [to do]” in the context of selecting diverse speakers (in AnonProf’s words) and “a terrible, terrible practice” in the context of selecting diverse writers to publish (in Dave’s turn of phrase).” Since the Faculty Lounge seems to be the only law blog without a Scholastica diversity post, and since my fuller response to AnonProf’s argument would have further hijacked Dave’s thread, I thought I’d move this aspect of the conversation here.
A good debate is always worth having, but the majority of the comments responding to my last post on this subject appear to have been responding to arguments I did not make. I appreciate that other people think the question I ought to have discussed is "What is the cost of producing legal scholarship?" or "What is the proper balance of scholarship to teaching?" However, those were not questions I was attempting to raise.
Nor was I attempting to suggest, in Panglossian fashion, that we currently enjoy the best of all possible worlds in legal education or that I was indifferent or unsympathetic to the problems so many law school grads have finding jobs. On that matter, see this great post from Adam Levitin The Legal Employment Market (As an aside, with respect to many of the suggestions commonly made, both in the comments to my post and elsewhere, about what law schools ought to do, Tulsa has been doing many of them for several years. These include: reduction of class size, holding down tuition costs, introducing experiential learning opportunities, etc. And our employment numbers have been comparatively good for what is without a doubt a terrible market. Again, I do not say that to suggest that everything is great or that there are other reforms that we or other law schools might undertake. But that is not this post.)
Instead, I was actually trying to make a relatively narrow and I think pretty unassailable point: It is very difficult to measure the “utility” (or cost) of scholarship where (a) the time horizons for its effects to be fully felt can potentially stretch out so far, and (b) where citations are not a reliable metric for assessing the impact of a piece of scholarly work.
Some readers clearly don't agree with this proposition. However, I invite those in doubt to read the Redish article I cited and compare it to the Virginia Pharmacy decision and decide for themselves whether it appears that the Redish article influenced the Court's decision. I think it did. Most knowledgable observers think it did. It was not cited by the Court [point (b) above] and yet it clearly had an influence on the Court and everyone who knows anything about the commercial speech doctrine knows that the theory advanced in this article, which was so outside the mainstream at the time that the late, great Thomas Emerson devoted only a few paragraphs to commercial speech in his book "Toward A General Theory of the First Amendment" the year before, now represents, some 30 years later, the dominant view of commercial speech as reflected in recent judicial opinions [point (a)].
Of course this is but one example. I offered other examples gleaned from my experience and from suggestions which came from others. Those examples lead me to suspect there are more and that at the very least this phenomenon ought to give one pause before making snap judgments about scholarship's "worth" as a global matter or about how much is the right amount to invest in it.
Since I wrote that initial post I have recieved several new examples from others - some relating to influential student pieces; and since at some reviews student authors are anonymous, this adds an additional complicating factor for tracking influence. No less an authority than Judge Kozinski has observed, "Published student papers can also be quite useful and influential in the development of the law. A few law review notes and comments become classics cited widely by lawyers, courts and academics." (This quote is from the foreward to Eugene Volokh's Academic Legal Writing which is an invaluable resource btw, for writing law review article - for students and faculty alike - and no, I'm am not being paid to say this).
Judge Kozinski goes on to note that (in his opinion) "most" student articles are not influential. And who can argue with this? Whether it is "most" though an empirical question. I rather hope that professor's articles have a better track record for influence than student pieces, but I don't know that this is true. I've given examples and reasons for thinking that it might be difficult ex ante, or even at publication, to determine what proportion of legal scholarship - from whatever source - is "useful."
Notice, my claim is not that all scholarship is inherently valuable, nor that some "x" quantum of work needs to be produced in order to generate such useful scholarship. It is a claim that one ought to perhaps be cautious before concluding that "most" scholarship is worthless or that its worth pales beside the cost to students of producing it. Maybe. But maybe not.
I have no idea how much subsidy we ought to give scholarship to produce good work or whether the current amount is enough or too much. But I think is far from proven that the cost of producing these articles is "immense" as Ralph Brill suggests. I don't think reduced teaching loads are that common outside of the top twenty law schools. And I have no idea how many people you need working, for how many hours, to get good work. (I know my own knowledge about the commercial speech doctrine has taken years to acquire and involved a lot of help from a great many research assistants.) And while it is true that many of the examples I listed involve famous legal scholars, they didn't all start out famous. And not all influential articles have been published in top 20 law reviews. If you don't believe me, check it out for yourself. You don't have to find very many counter-examples before you have reason to doubt whether the metrics being proposed for how to identify what constitutes useful or worthwhile scholarship, or whether scholarship has any value at all, pose problems because worth is a difficult thing to measure.
Again, I make no claim about the proportions, although I notice most critics have no hesitation about tossing off empirical claims about how "most" legal scholarship is not influential. I am willing to assume for purposes of argument that this is true. Still, since we don't know ex ante how much scholarship needs to be produced in order to generate "the good stuff"; and we know that relying on the status of the institution or the scholar to determine who ought to get support would be a form of hindsight bias and would rely on the signaling function of the prestige of the law review or the author to substitute as a measure of quality, we have a problem calculating that figure. We know that status already matters a lot, but I daresay some of the articles which caught the negative attention of the critics like the Chief Justice appeared in these very prestigious publications or from well known authors. So prestige, like citation counts, may be a blunt and unreliable instrument for judging worth or quality.
But here we come to another hot button. And this too comes out in some of the comments. One gets the sense that what bothers some critics is the subject matter. (Some of the commenters seemed determined to confirm this suspicion). The usual suspects are anything having to do with feminism or critical race, or perhaps critical approaches generally. Whatever one's feelings about feminism or sexual harassment as a cause of action, Catharine MacKinnon's "Sexual Harassment of Working Women" has been cited by at least 40 courts. Litigants can now sue for an injury that didn't have a name before. And of course those litigants have lawyers.
Like it or hate it, no one can deny that works like these and many more influenced the law, gave work to lawyers and therefore had "utility" if by "utility" we mean that it was relevant for litigants. I suspect that was not how much of this work was viewed when it was first published.
Similarly, Charles Lawrence's "The Id, The Ego & Equal Protection: Reckoning With Unconscious Racism," 39 Stan. L. Rev. 317 (1987) has 16 judicial citing references on Westlaw. (It has been cited hundreds of times in treatises and other law reviews). Some courts found his work very persuasive indeed, even if not all others have agreed. So the claim that CRT or feminism is somehow inherently lacking in merit simply betrays the normative commitments of the critic. If "merit" = "influence" both theories have had a great deal of influence in the courts and in society at large.
If you want to argue about whether these offerings have made net positive contributions to law (and I think they have), that is a different point than the one I am offering here.
Coming up in future posts: Is the dollar cost of producing scholarship really so great as some propose? And, if scholarship is so despised and useless, why does it appear that law firms and interest groups are paying to produce it? Do we really want to go to a system where the only funding for scholarship comes from those who want to use it promote a particular agenda? And finally, a quick survey of recent law reviews where in I ask the question: "Do these articles sound useless?"[This is a corrected version of the earlier post which fixed some typos and added some missing words. The substance is unchanged. ]
Put your final edits to bed and finish out those pesky footnotes. It's almost time to send that piece out. Is there anything different in the submission season this spring?
Since last fall, several more law reviews have opted to use Scholastica as their exclusive provider of online submissions. Though the list of law journals is short (list below), it does pack a punch. And as Dan suggests, the increased cost may have an effect on the number of journals to which each author submits through electronic means ($5 compared to $2). Yet, isn’t this cost barrier really dependent on more law reviews raising their prices of playing the game? I can foresee -- especially when the dollars don’t come from individual pockets -- someone saying “I’ll pay an extra $75 to submit to those 15 journals. Do we expect more journals to join up with Scholastica?
With new announcements of Law Reviews switching to Scholastica as their exclusive carrier, also come several announcements for the opening of the submission cycle. For example, UC Davis announced its season as opening February 19. Lewis and Clark and Boston College both list February 1 in their announcement, though its ambiguous whether they mean they will open their Spring window February 1, or if February 1 is just the arbitrary date for exclusively accepting submissions through Scholastica. Anyone with inside knowledge, please discuss. Looking back at Sarah Lawsky's law review submission tracker from last year several journals listed early February, February 1, or even January as the beginning of their season (including Yale, Penn, Duke, Cornell, Texas, Georgetown, UCLA, Vanderbilt, Wash U, Minnesota, GW, Illinois, William and Mary, Hastings and Florida). So maybe the season officially began on February 1.
General Law Reviews Accepting Through Scholastica
American University Law Review
Arizona Law Review
Arizona State Law Journal
Boston College Law Review (Feb. 1)*
California Law Review
Cardozo Law Review
Case Western Reserve Law Review
University of Iowa Law Review
Lewis and Clark Law Review (Feb. 1)*
NYU Law Review
Ohio Northern University Law Review
Southern California Law Review
UCLA Law Review
UC Davis Law Review (February 19)
University of Chicago Law Review
*Note, it is unclear whether February 1 is the effective date for these journals’ switch to Scholastica or whether that date is the opening of their Spring submission cycle.
An article in The Chronicle of Higher Education's percolator reports that "Top-Ranked Journals Are Losing Their Share of Top-Cited Articles." Cribbing from the Chron, a study "published in the November issue of the Journal of the American Society for Information Science and Technology, found that in 1990, 45 percent of the top 5 percent of the most cited articles were published in journals whose impact factor was in the top 5 percent—publications like Cell, Nature, Science, and the Journal of the American Medical Association. By 2009, that rate had fallen to 36 percent...."
While that study is focused on science journals, I'd not be surprised to find a similar result in law reviews. Some of the best cited articles in good but not super elite law journals win more citations than many articles in our most elite law journals. I had some related thoughts on this last summer.