Friday, March 16, 2007
On Monday, I blogged Brian Leiter's rankings of the Top 15 Most-Downloaded Law Faculties (and compared them to the Top 15 Most-Downloaded Tax Faculties). A debate has erupted over Brian's decision to exclude Ohio State and Emory, "whose presence in the top 15 was due entirely to one provocatively titled article by Christopher Fairman who teaches at Ohio State and is visiting at Emory; without Fairman’s paper, neither Ohio State nor Emory would be close to the top 15."
This essay questions the methodology of Brian Leiter's latest addition to his Law School Rankings, the “Most Downloaded Law Faculties, 2006.” Leiter's new ranking purports to rank the top fifteen most downloaded law schools for 2006. While the ranking uses annual download data from the Social Science Research Network (SSRN), he excludes two schools entirely: #8 Emory School of Law and #10 Ohio State Moritz College of Law. In Leiter's own words, “It was necessary to exclude Ohio State and Emory whose presence in the top 15 was due entirely to one provocatively titled article by Christopher Fairman who teaches at Ohio State and is visiting at Emory.” The paper he refers to is entitled Fuck. It explores the legal implications of the use of the word. An earlier version of the piece is available on SSRN as a working paper; it is now available in final form at 28 Cardozo Law Review 1171 (2007). In this essay, I question Fuck's exclusion on three grounds. First, from a procedural standpoint, Leiter has not articulated precisely why this scholarship was excluded. Absent some articulation, authors are unable to predict future results. Is it the title, the subject matter, the author or article downloads that trigger exclusion? Second, from a scholarly perspective, Leiter's exclusion appears to be word taboo at work—precisely the theme of the article he now bans. Third, exclusion of any scholarship illustrates Lawrence Solum's “right people thesis.” In this case, Leiter's exclusion marginalizes the scholarship of others on the premise that the “right people” can't possibly be downloading in such large numbers. Hopefully, this Essay will advance the conversation on whether as a community we benefit from this type of law school ranking.
For more law prof blogosphere commentary, see:
- Ann Bartow, Feminist Law Professors: Fuck, SSRN Rankings
- Doug Berman, Law School Innovation: SSRN Rankings and Leiter's (Rank?) Omission
For the record, Chris's original article in question had 18,040 downloads as of 10:00 p.m. EST on March 15, 2007. making it the third most downloaded paper in history in the Legal Scholarship Division of SSRN (it is just outside the Top 10 downloaded papers on all of SSRN).