Tax (and Lots of Other) Scholars Need Not Apply: The Changing Venue for Scholarship

Journal of Legal Education

Volumn 50, Issue 2, 2000, Pages 189-210

  Turnier, William J ^a  

^a NONE

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EID: 0034553713     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (81)

1. Here are some of the more interesting offerings on scholarship that are not cited elsewhere in this article: Richard S. Markovits, Legal Scholarship: The Course, 48 J. Legal Educ. 539 (1998); Cheryl B. Preston, It Moves, Even If We Don't: A Reply to Arthur Austin, "The Top Ten Politically Correct Law Reviews," 63 Tenn. L. Rev. 735 (1996); Arthur Austin, The Top Ten Politically Correct Law Reviews, 1994 Utah L. Rev. 1319 (1994); Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 Am. U. L. Rev. 367 (1990); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); Francis A. Allen, Legal Scholarship: Present Status and Future Prospects, 33 J. Legal Educ. 403 (1983); Graham Hughes, The Great American Legal Scholarship Bazaar, 33 J. Legal Educ. 424 (1983) ; George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437 (1983). In addition, the Stanford Law Review in 1995 published an interesting series of essays on the law review process; see Symposium, Law Review Conference, 47 Stan. L. Rev. 1117 (1995).
2. Here are some of the more interesting offerings on scholarship that are not cited elsewhere in this article: Richard S. Markovits, Legal Scholarship: The Course, 48 J. Legal Educ. 539 (1998); Cheryl B. Preston, It Moves, Even If We Don't: A Reply to Arthur Austin, "The Top Ten Politically Correct Law Reviews," 63 Tenn. L. Rev. 735 (1996); Arthur Austin, The Top Ten Politically Correct Law Reviews, 1994 Utah L. Rev. 1319 (1994); Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 Am. U. L. Rev. 367 (1990); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); Francis A. Allen, Legal Scholarship: Present Status and Future Prospects, 33 J. Legal Educ. 403 (1983); Graham Hughes, The Great American Legal Scholarship Bazaar, 33 J. Legal Educ. 424 (1983) ; George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437 (1983). In addition, the Stanford Law Review in 1995 published an interesting series of essays on the law review process; see Symposium, Law Review Conference, 47 Stan. L. Rev. 1117 (1995).
3. Here are some of the more interesting offerings on scholarship that are not cited elsewhere in this article: Richard S. Markovits, Legal Scholarship: The Course, 48 J. Legal Educ. 539 (1998); Cheryl B. Preston, It Moves, Even If We Don't: A Reply to Arthur Austin, "The Top Ten Politically Correct Law Reviews," 63 Tenn. L. Rev. 735 (1996); Arthur Austin, The Top Ten Politically Correct Law Reviews, 1994 Utah L. Rev. 1319 (1994); Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 Am. U. L. Rev. 367 (1990); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); Francis A. Allen, Legal Scholarship: Present Status and Future Prospects, 33 J. Legal Educ. 403 (1983); Graham Hughes, The Great American Legal Scholarship Bazaar, 33 J. Legal Educ. 424 (1983) ; George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437 (1983). In addition, the Stanford Law Review in 1995 published an interesting series of essays on the law review process; see Symposium, Law Review Conference, 47 Stan. L. Rev. 1117 (1995).
4. Here are some of the more interesting offerings on scholarship that are not cited elsewhere in this article: Richard S. Markovits, Legal Scholarship: The Course, 48 J. Legal Educ. 539 (1998); Cheryl B. Preston, It Moves, Even If We Don't: A Reply to Arthur Austin, "The Top Ten Politically Correct Law Reviews," 63 Tenn. L. Rev. 735 (1996); Arthur Austin, The Top Ten Politically Correct Law Reviews, 1994 Utah L. Rev. 1319 (1994); Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 Am. U. L. Rev. 367 (1990); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); Francis A. Allen, Legal Scholarship: Present Status and Future Prospects, 33 J. Legal Educ. 403 (1983); Graham Hughes, The Great American Legal Scholarship Bazaar, 33 J. Legal Educ. 424 (1983) ; George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437 (1983). In addition, the Stanford Law Review in 1995 published an interesting series of essays on the law review process; see Symposium, Law Review Conference, 47 Stan. L. Rev. 1117 (1995).
5. Here are some of the more interesting offerings on scholarship that are not cited elsewhere in this article: Richard S. Markovits, Legal Scholarship: The Course, 48 J. Legal Educ. 539 (1998); Cheryl B. Preston, It Moves, Even If We Don't: A Reply to Arthur Austin, "The Top Ten Politically Correct Law Reviews," 63 Tenn. L. Rev. 735 (1996); Arthur Austin, The Top Ten Politically Correct Law Reviews, 1994 Utah L. Rev. 1319 (1994); Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 Am. U. L. Rev. 367 (1990); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); Francis A. Allen, Legal Scholarship: Present Status and Future Prospects, 33 J. Legal Educ. 403 (1983); Graham Hughes, The Great American Legal Scholarship Bazaar, 33 J. Legal Educ. 424 (1983) ; George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437 (1983). In addition, the Stanford Law Review in 1995 published an interesting series of essays on the law review process; see Symposium, Law Review Conference, 47 Stan. L. Rev. 1117 (1995).
6. Here are some of the more interesting offerings on scholarship that are not cited elsewhere in this article: Richard S. Markovits, Legal Scholarship: The Course, 48 J. Legal Educ. 539 (1998); Cheryl B. Preston, It Moves, Even If We Don't: A Reply to Arthur Austin, "The Top Ten Politically Correct Law Reviews," 63 Tenn. L. Rev. 735 (1996); Arthur Austin, The Top Ten Politically Correct Law Reviews, 1994 Utah L. Rev. 1319 (1994); Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 Am. U. L. Rev. 367 (1990); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); Francis A. Allen, Legal Scholarship: Present Status and Future Prospects, 33 J. Legal Educ. 403 (1983); Graham Hughes, The Great American Legal Scholarship Bazaar, 33 J. Legal Educ. 424 (1983) ; George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437 (1983). In addition, the Stanford Law Review in 1995 published an interesting series of essays on the law review process; see Symposium, Law Review Conference, 47 Stan. L. Rev. 1117 (1995).
7. Here are some of the more interesting offerings on scholarship that are not cited elsewhere in this article: Richard S. Markovits, Legal Scholarship: The Course, 48 J. Legal Educ. 539 (1998); Cheryl B. Preston, It Moves, Even If We Don't: A Reply to Arthur Austin, "The Top Ten Politically Correct Law Reviews," 63 Tenn. L. Rev. 735 (1996); Arthur Austin, The Top Ten Politically Correct Law Reviews, 1994 Utah L. Rev. 1319 (1994); Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 Am. U. L. Rev. 367 (1990); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); Francis A. Allen, Legal Scholarship: Present Status and Future Prospects, 33 J. Legal Educ. 403 (1983); Graham Hughes, The Great American Legal Scholarship Bazaar, 33 J. Legal Educ. 424 (1983) ; George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437 (1983). In addition, the Stanford Law Review in 1995 published an interesting series of essays on the law review process; see Symposium, Law Review Conference, 47 Stan. L. Rev. 1117 (1995).
8. Here are some of the more interesting offerings on scholarship that are not cited elsewhere in this article: Richard S. Markovits, Legal Scholarship: The Course, 48 J. Legal Educ. 539 (1998); Cheryl B. Preston, It Moves, Even If We Don't: A Reply to Arthur Austin, "The Top Ten Politically Correct Law Reviews," 63 Tenn. L. Rev. 735 (1996); Arthur Austin, The Top Ten Politically Correct Law Reviews, 1994 Utah L. Rev. 1319 (1994); Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 Am. U. L. Rev. 367 (1990); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); Francis A. Allen, Legal Scholarship: Present Status and Future Prospects, 33 J. Legal Educ. 403 (1983); Graham Hughes, The Great American Legal Scholarship Bazaar, 33 J. Legal Educ. 424 (1983) ; George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437 (1983). In addition, the Stanford Law Review in 1995 published an interesting series of essays on the law review process; see Symposium, Law Review Conference, 47 Stan. L. Rev. 1117 (1995).
9. Here are some of the more interesting offerings on scholarship that are not cited elsewhere in this article: Richard S. Markovits, Legal Scholarship: The Course, 48 J. Legal Educ. 539 (1998); Cheryl B. Preston, It Moves, Even If We Don't: A Reply to Arthur Austin, "The Top Ten Politically Correct Law Reviews," 63 Tenn. L. Rev. 735 (1996); Arthur Austin, The Top Ten Politically Correct Law Reviews, 1994 Utah L. Rev. 1319 (1994); Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 Am. U. L. Rev. 367 (1990); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); Francis A. Allen, Legal Scholarship: Present Status and Future Prospects, 33 J. Legal Educ. 403 (1983); Graham Hughes, The Great American Legal Scholarship Bazaar, 33 J. Legal Educ. 424 (1983) ; George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437 (1983). In addition, the Stanford Law Review in 1995 published an interesting series of essays on the law review process; see Symposium, Law Review Conference, 47 Stan. L. Rev. 1117 (1995).
10. Here are some of the more interesting offerings on scholarship that are not cited elsewhere in this article: Richard S. Markovits, Legal Scholarship: The Course, 48 J. Legal Educ. 539 (1998); Cheryl B. Preston, It Moves, Even If We Don't: A Reply to Arthur Austin, "The Top Ten Politically Correct Law Reviews," 63 Tenn. L. Rev. 735 (1996); Arthur Austin, The Top Ten Politically Correct Law Reviews, 1994 Utah L. Rev. 1319 (1994); Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 Am. U. L. Rev. 367 (1990); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); Francis A. Allen, Legal Scholarship: Present Status and Future Prospects, 33 J. Legal Educ. 403 (1983); Graham Hughes, The Great American Legal Scholarship Bazaar, 33 J. Legal Educ. 424 (1983) ; George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437 (1983). In addition, the Stanford Law Review in 1995 published an interesting series of essays on the law review process; see Symposium, Law Review Conference, 47 Stan. L. Rev. 1117 (1995).
11. Articles that appeared in a symposium on storytelling in the Michigan Law Review provide a good sampling of the interest in this topic. See Symposium, Law Review Conference, 87 Mich. L. Rev. 2099 (1989).
12. See, e.g., Theodore Eisenberg & Martin T. Wells, Ranking and Explaining the Scholarly Impact of Law Schools, 27 J. Legal Stud. 373 (1998); James Lindgren & Daniel Seltzer, The Most Prolific Law Professors and Faculties, 71 Chi.-Kent L. Rev. 781 (1996).
13. See, e.g., Theodore Eisenberg & Martin T. Wells, Ranking and Explaining the Scholarly Impact of Law Schools, 27 J. Legal Stud. 373 (1998); James Lindgren & Daniel Seltzer, The Most Prolific Law Professors and Faculties, 71 Chi.-Kent L. Rev. 781 (1996).
14. See William M. Landes & Richard A. Posner, Heavily Cited Articles in Law, 71 Chi.-Kent L. Rev. 825 (1996); Fred R. Shapiro, The Most-Cited Law Review Articles Revisited, 71 Chi.-Kent L. Rev. 751 (1996); Fred R. Shapiro, The Most-Cited Law Review Articles, 73 Calif. L. Rev. 1540 (1985). Many empirical rankings of institutions and individuals suffer from demonstrable methodological weaknesses. The most amusing such example for tax professors (and most students and scholars of the law) is provided by Fred R. Shapiro, They Published, Not Perished, But Were They Good Teachers? 73 Chi.-Kent L. Rev. 835 (1998). Shapiro sought to determine if what he classified as "highly-cited" law professors were better or worse teachers than a control group of 50 others. This was done for the purpose of determining whether the academy tolerated a lower standard of teaching for its most elite scholars than that provided by the professoriat in general. One earned admission into the ranks of the elite solely by having written an article on one of several lists of most-cited law review articles. The result of this was to leave Boris Bittker, a longtime member of the Yale faculty and tax scholar, out of the ranks of elite scholars and over in the control group. When I checked Lexis, I found Bittker cited in 1,215 law review articles with an additional 257 citations in Tax Notes, which is not part of the Lexis law review database. He was also cited in 927 federal and state tax cases. Curiously enough, Shapiro is a librarian and lecturer at Yale Law School.
15. See William M. Landes & Richard A. Posner, Heavily Cited Articles in Law, 71 Chi.-Kent L. Rev. 825 (1996); Fred R. Shapiro, The Most-Cited Law Review Articles Revisited, 71 Chi.-Kent L. Rev. 751 (1996); Fred R. Shapiro, The Most-Cited Law Review Articles, 73 Calif. L. Rev. 1540 (1985). Many empirical rankings of institutions and individuals suffer from demonstrable methodological weaknesses. The most amusing such example for tax professors (and most students and scholars of the law) is provided by Fred R. Shapiro, They Published, Not Perished, But Were They Good Teachers? 73 Chi.-Kent L. Rev. 835 (1998). Shapiro sought to determine if what he classified as "highly-cited" law professors were better or worse teachers than a control group of 50 others. This was done for the purpose of determining whether the academy tolerated a lower standard of teaching for its most elite scholars than that provided by the professoriat in general. One earned admission into the ranks of the elite solely by having written an article on one of several lists of most-cited law review articles. The result of this was to leave Boris Bittker, a longtime member of the Yale faculty and tax scholar, out of the ranks of elite scholars and over in the control group. When I checked Lexis, I found Bittker cited in 1,215 law review articles with an additional 257 citations in Tax Notes, which is not part of the Lexis law review database. He was also cited in 927 federal and state tax cases. Curiously enough, Shapiro is a librarian and lecturer at Yale Law School.
16. See William M. Landes & Richard A. Posner, Heavily Cited Articles in Law, 71 Chi.-Kent L. Rev. 825 (1996); Fred R. Shapiro, The Most-Cited Law Review Articles Revisited, 71 Chi.-Kent L. Rev. 751 (1996); Fred R. Shapiro, The Most-Cited Law Review Articles, 73 Calif. L. Rev. 1540 (1985). Many empirical rankings of institutions and individuals suffer from demonstrable methodological weaknesses. The most amusing such example for tax professors (and most students and scholars of the law) is provided by Fred R. Shapiro, They Published, Not Perished, But Were They Good Teachers? 73 Chi.-Kent L. Rev. 835 (1998). Shapiro sought to determine if what he classified as "highly-cited" law professors were better or worse teachers than a control group of 50 others. This was done for the purpose of determining whether the academy tolerated a lower standard of teaching for its most elite scholars than that provided by the professoriat in general. One earned admission into the ranks of the elite solely by having written an article on one of several lists of most-cited law review articles. The result of this was to leave Boris Bittker, a longtime member of the Yale faculty and tax scholar, out of the ranks of elite scholars and over in the control group. When I checked Lexis, I found Bittker cited in 1,215 law review articles with an additional 257 citations in Tax Notes, which is not part of the Lexis law review database. He was also cited in 927 federal and state tax cases. Curiously enough, Shapiro is a librarian and lecturer at Yale Law School.
17. See William M. Landes & Richard A. Posner, Heavily Cited Articles in Law, 71 Chi.-Kent L. Rev. 825 (1996); Fred R. Shapiro, The Most-Cited Law Review Articles Revisited, 71 Chi.-Kent L. Rev. 751 (1996); Fred R. Shapiro, The Most-Cited Law Review Articles, 73 Calif. L. Rev. 1540 (1985). Many empirical rankings of institutions and individuals suffer from demonstrable methodological weaknesses. The most amusing such example for tax professors (and most students and scholars of the law) is provided by Fred R. Shapiro, They Published, Not Perished, But Were They Good Teachers? 73 Chi.-Kent L. Rev. 835 (1998). Shapiro sought to determine if what he classified as "highly-cited" law professors were better or worse teachers than a control group of 50 others. This was done for the purpose of determining whether the academy tolerated a lower standard of teaching for its most elite scholars than that provided by the professoriat in general. One earned admission into the ranks of the elite solely by having written an article on one of several lists of most-cited law review articles. The result of this was to leave Boris Bittker, a longtime member of the Yale faculty and tax scholar, out of the ranks of elite scholars and over in the control group. When I checked Lexis, I found Bittker cited in 1,215 law review articles with an additional 257 citations in Tax Notes, which is not part of the Lexis law review database. He was also cited in 927 federal and state tax cases. Curiously enough, Shapiro is a librarian and lecturer at Yale Law School.
18. See, e.g., Michael J. Saks et al., Is There a Growing Gap Among Law, Law Practice, and Legal Scholarship? A Systematic Comparison of Law Review Articles One Generation Apart, 30 Suffolk U. L. Rev. 353 (1996); Paul D. Reingold, Harry Edwards' Nostalgia, 91 Mich. L. Rev. 1998 (1993); Richard A. Posner, The Deprofessionalization of Legal Teaching and Scholarship, 91 Mich. L. Rev. 1921 (1993); Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992).
19. See, e.g., Michael J. Saks et al., Is There a Growing Gap Among Law, Law Practice, and Legal Scholarship? A Systematic Comparison of Law Review Articles One Generation Apart, 30 Suffolk U. L. Rev. 353 (1996); Paul D. Reingold, Harry Edwards' Nostalgia, 91 Mich. L. Rev. 1998 (1993); Richard A. Posner, The Deprofessionalization of Legal Teaching and Scholarship, 91 Mich. L. Rev. 1921 (1993); Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992).
20. See, e.g., Michael J. Saks et al., Is There a Growing Gap Among Law, Law Practice, and Legal Scholarship? A Systematic Comparison of Law Review Articles One Generation Apart, 30 Suffolk U. L. Rev. 353 (1996); Paul D. Reingold, Harry Edwards' Nostalgia, 91 Mich. L. Rev. 1998 (1993); Richard A. Posner, The Deprofessionalization of Legal Teaching and Scholarship, 91 Mich. L. Rev. 1921 (1993); Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992).
21. See, e.g., Michael J. Saks et al., Is There a Growing Gap Among Law, Law Practice, and Legal Scholarship? A Systematic Comparison of Law Review Articles One Generation Apart, 30 Suffolk U. L. Rev. 353 (1996); Paul D. Reingold, Harry Edwards' Nostalgia, 91 Mich. L. Rev. 1998 (1993); Richard A. Posner, The Deprofessionalization of Legal Teaching and Scholarship, 91 Mich. L. Rev. 1921 (1993); Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992).
22. Notable exceptions are Philip F. Postlewaite, Life After Tenure: Where Have All the Articles Gone? 48 J. Legal Educ. 558 (1998); Michael A. Livingston, Reinventing Tax Scholarship: Lawyers, Economists, and the Role of the Legal Academy, 83 Cornell L. Rev. 365 (1998); Edward J. McCaffery, Tax's Empire, 85 Geo. L.J. 71 (1996); Paul L. Caron, Tax Myopia, or Mamas Don't Let Your Babies Grow Up to Be Tax Lawyers, 13 Va. Tax Rev. 517 (1994).
23. Notable exceptions are Philip F. Postlewaite, Life After Tenure: Where Have All the Articles Gone? 48 J. Legal Educ. 558 (1998); Michael A. Livingston, Reinventing Tax Scholarship: Lawyers, Economists, and the Role of the Legal Academy, 83 Cornell L. Rev. 365 (1998); Edward J. McCaffery, Tax's Empire, 85 Geo. L.J. 71 (1996); Paul L. Caron, Tax Myopia, or Mamas Don't Let Your Babies Grow Up to Be Tax Lawyers, 13 Va. Tax Rev. 517 (1994).
24. Notable exceptions are Philip F. Postlewaite, Life After Tenure: Where Have All the Articles Gone? 48 J. Legal Educ. 558 (1998); Michael A. Livingston, Reinventing Tax Scholarship: Lawyers, Economists, and the Role of the Legal Academy, 83 Cornell L. Rev. 365 (1998); Edward J. McCaffery, Tax's Empire, 85 Geo. L.J. 71 (1996); Paul L. Caron, Tax Myopia, or Mamas Don't Let Your Babies Grow Up to Be Tax Lawyers, 13 Va. Tax Rev. 517 (1994).
25. Notable exceptions are Philip F. Postlewaite, Life After Tenure: Where Have All the Articles Gone? 48 J. Legal Educ. 558 (1998); Michael A. Livingston, Reinventing Tax Scholarship: Lawyers, Economists, and the Role of the Legal Academy, 83 Cornell L. Rev. 365 (1998); Edward J. McCaffery, Tax's Empire, 85 Geo. L.J. 71 (1996); Paul L. Caron, Tax Myopia, or Mamas Don't Let Your Babies Grow Up to Be Tax Lawyers, 13 Va. Tax Rev. 517 (1994).
26. For the study I chose the major law reviews of California, Chicago, Columbia, Cornell, Duke, Harvard, Michigan, Minnesota, Northwestern, NYU, Stanford, Texas, UCLA, Pennsylvania, Virginia, Wisconsin, and Yale. My wish to do the study over a long period of time raised several problems. First, rankings of law reviews by their present impact or significance would be of little help in selecting those for a study spanning more than fifty years. For example, Vanderbilt Law Review has only recently been deemed to be a very desirable venue for publication. Second, some of the most prominent law reviews, such as UCLA, Stanford, and Duke, have not been publishing over the full period studied. As a desperate last resort, I did something totally radical and relied solely on my own judgment in selecting journals to include in the study. For those who do not concur in my choices, I note that the inclusion of one or two additional journals or the deletion of a few would not appreciably change the results.
27. I chose years ending in the numbers 1 and 6 because I began gathering data in 1996. Where a review's volume dates were not limited to a calendar year, for example where publication was based on an academic year, I chose to use the volumes that published their first issue in a year ending 1 or 6. Completion of the study was delayed considerably by the need to wait, in late 1998, for several issues of major law reviews that lagged seriously behind their announced publication dates.
28. See Caron, supra note 6, at 539-47. Most of this debate is centered on suggestions by Justice Scalia that the role of legislative history be greatly diminished if not completely eliminated. It is my opinion that the reason few tax professionals take this suggestion seriously is that most view it at best as silly and at worst as symptomatic of a power grab by the judiciary, which, unencumbered by legislative history, would be free to place its construction upon a statute which is the work of the legislature. Even tax professors think well of the doctrine of separation of powers.
29. See McCaffery, supra note 6, at 77-80.
30. See, e.g., Stanley S. Surrey & Paul R. McDaniel, Tax Expenditures (Cambridge, Mass., 1985); William Turnier, Evaluating Personal Deductions in an Income Tax - The Ideal, 66 Cornell L. Rev. 262 (1981); Michael McIntyre & Oliver Oldman, Taxation of the Family in a Comprehensive and Simplified Income Tax, 90 Harv. L. Rev. 1573 (1977); William D. Andrews, Personal Deductions in an Ideal Income Tax, 86 Harv. L. Rev. 309 (1972).
31. See, e.g., Stanley S. Surrey & Paul R. McDaniel, Tax Expenditures (Cambridge, Mass., 1985); William Turnier, Evaluating Personal Deductions in an Income Tax - The Ideal, 66 Cornell L. Rev. 262 (1981); Michael McIntyre & Oliver Oldman, Taxation of the Family in a Comprehensive and Simplified Income Tax, 90 Harv. L. Rev. 1573 (1977); William D. Andrews, Personal Deductions in an Ideal Income Tax, 86 Harv. L. Rev. 309 (1972).
32. See, e.g., Stanley S. Surrey & Paul R. McDaniel, Tax Expenditures (Cambridge, Mass., 1985); William Turnier, Evaluating Personal Deductions in an Income Tax - The Ideal, 66 Cornell L. Rev. 262 (1981); Michael McIntyre & Oliver Oldman, Taxation of the Family in a Comprehensive and Simplified Income Tax, 90 Harv. L. Rev. 1573 (1977); William D. Andrews, Personal Deductions in an Ideal Income Tax, 86 Harv. L. Rev. 309 (1972).
33. See, e.g., Stanley S. Surrey & Paul R. McDaniel, Tax Expenditures (Cambridge, Mass., 1985); William Turnier, Evaluating Personal Deductions in an Income Tax - The Ideal, 66 Cornell L. Rev. 262 (1981); Michael McIntyre & Oliver Oldman, Taxation of the Family in a Comprehensive and Simplified Income Tax, 90 Harv. L. Rev. 1573 (1977); William D. Andrews, Personal Deductions in an Ideal Income Tax, 86 Harv. L. Rev. 309 (1972).
34. See McCaffery, supra note 6, at 87.
35. See Livingston, supra note 6, at 383, 410-11.
36. Taxpayer Relief Act of 1997, Pub. Law No. 105-34, 111 Stat. 788 (1997).
37. Other journals, such as the Journal of Taxation, Taxes, and Estate Planning, also have short turnaround times (often one or two months) although none can compete with Tax Notes on this score.
38. I took modest liberty in rearranging, combining, or deleting some of those categories. For example, I rejected creating a separate category for law and economics (a separate subject matter for the AALS Directory) and assigned articles employing a law and economics rationale to the appropriate subject areas.
39. Where an article contained sufficient mention of a second or third subject area to warrant its also being counted as contributing to that other category, that is indicated in Table 2 in the parenthesis following the "Total" figure. For example, seven of the 14 contracts articles overlapped with at least one other category, and one such article overlapped with two categories. Because of this technique for dealing with scholarship that overlapped categories, a methodology not employed in Table 1, there is a modest variation in the data reported on Table 1 and Tables 2 and 3.
40. See, e.g., Colleen M. Cullen & S. Randall Kalberg, Chicago-Kent Law Review Faculty Scholarship Survey, 70 Chi.-Kent L. Rev. 1445 (1995); Lindgren & Seltzer, supra note 3.
41. See, e.g., Colleen M. Cullen & S. Randall Kalberg, Chicago-Kent Law Review Faculty Scholarship Survey, 70 Chi.-Kent L. Rev. 1445 (1995); Lindgren & Seltzer, supra note 3.
42. Deborah J. Merritt reports that while the average professor in the 10 years of her study published 5.11 articles, the average tax teacher published 3.77 articles. This is hardly enough of a disparity to account for the reported results. While teachers of constitutional law included in her study did publish more than the average, the difference became statistically insignificant when adjustment was made for the prestige of the author's institution. Also worthy of note is the fact that although tax teachers published fewer articles than others, they significantly exceeded other professors in the publication of books. See Research and Teaching on Law Faculties: An Empirical Exploration, 73 Chi.-Kent L. Rev. 765, 784, 785, 790, 817 (1998). An extremely significant limitation of many studies of productivity based on law review citation rates rests on the fact that computerized law review databases often omit significant specialized databases. For example, Lexis does not include Tax Notes in its All Law Review database. My sample check of the Tax Notes and All Law Review databases resulted in doubling the citation rate for many tax professors. Merritt's study is well done and does not suffer from obvious methodological weaknesses.
43. See Harris Study 618158 (10/96). "Do not know" received a rating of 17.4 percent in the October poll. The September 1996 preelection Harris Poll Study 618146 placed taxes first at 18.8 percent, the economy second at 15.8, and welfare third at 12.0. Human, civil, and women's rights rated 0.9 percent, and "do not know" was chosen by 12.4 percent of respondents.
44. The methodology of Table 4 is the same as that of Table 1. I selected the years 1961, 1966, and 1971 for Table 4 to be consistent with the years of the 1960s and early 1970s employed in Tables 1, 2, and 3.
45. See Gallup Polls, Most Important Problem, Oct. 11, 1964 (interviewing dates Sept. 18-23, 1964).
46. See Gallup Polls, Most Important Problem, Aug. 4, 1968 (interviewing dates June 26-July 1, 1968. The marked and surprising decline in the relative importance of racial issues from 1964 to 1968 may be attributable to several factors. Passage of the Civil Rights Act of 1964 may have left many Americans naively feeling that the problem of racial justice had been solved and with the passage of time and enforcement of the law the nation's racial problems would be behind it. The decline of racial justice as an important issue and the rise of crime and lawlessness can also be linked to the effective playing of the race card in the 1968 election by Richard Nixon and George Wallace once the Civil Rights Act of 1964 had put behind the country some of its more ugly forms of racism.
47. See Gallup Polls, Most Important Problem, Oct. 8, 1972 (interviewing dates Sept 22-25, 1972). This poll included within the category "inflation/high cost of living" the issues of unemployment and high taxes.
48. See John P. Heinz et al., The Changing Character of Lawyers' Work: Chicago in 1975 and 1995, 32 Law & Soc'y Rev. 751, 765 (1998).
49. As coauthor of a casebook I can attest to the fact that the pressure to maintain volume size while adding new developments has resulted in deletion from our book of all but a few citations to supplementary materials. See Regis W. Campfield et al., Taxation of Estates, Gifts and Trusts, 21st ed. (St. Paul, 1999).
50. James J. Freeland et al., Fundamentals of Federal Income Taxation, 10th ed. (New York, 1998).
51. Stephen A. Lind et al., Fundamentals of Corporate Taxation: Cases and Materials, 4th ed. (Westbury, 1997).
52. For example, Tax Notes was first published in 1970, the Journal of Corporate Taxation in 1974, the Review of Taxation of Individuals in 1976, and the American Journal of Tax Policy in 1982. Tax Law Review was first published in 1945.
53. Those other journals that constitute the ranks of the fourth contestant are the Political Science Review and the Journal of Political Economy.
54. Edwards, supra note 5. On the smoldering debate, see, e.g., Louis J. Sirico, Jr. & Jeffrey B. Margulies, The Citing of Law Reviews by the Supreme Court: An Empirical Study, 34 UCLA L. Rev. 131 (1986);
55. Edwards, supra note 5. On the smoldering debate, see, e.g., Louis J. Sirico, Jr. & Jeffrey B. Margulies, The Citing of Law Reviews by the Supreme Court: An Empirical Study, 34 UCLA L. Rev. 131 (1986); Richard A. Mann, The Use of Legal Periodicals by Courts and Journals, 26 Jurimetrics J. 400 (1986); Richard A. Posner, The Present Situation in Legal Scholarship, 90 Yale L.J. 1113 (1981).
56. Edwards, supra note 5. On the smoldering debate, see, e.g., Louis J. Sirico, Jr. & Jeffrey B. Margulies, The Citing of Law Reviews by the Supreme Court: An Empirical Study, 34 UCLA L. Rev. 131 (1986); Richard A. Mann, The Use of Legal Periodicals by Courts and Journals, 26 Jurimetrics J. 400 (1986); Richard A. Posner, The Present Situation in Legal Scholarship, 90 Yale L.J. 1113 (1981).
57. Edwards, supra note 5, at 36, 38.
58. See id. at 42-47.
59. Id. at 57.
60. See, e.g., James L. Oakes, Commentary on Judge Edwards' "Growing Disjunction Between Legal Education and the Legal Profession," 91 Mich. L. Rev. 2163 (1993); Posner, supra note 5; Louis H. Pollak, The Disjunction Between Judge Edwards and Professor Priest, 91 Mich. L. Rev. 2113 (1993).
61. See, e.g., James L. Oakes, Commentary on Judge Edwards' "Growing Disjunction Between Legal Education and the Legal Profession," 91 Mich. L. Rev. 2163 (1993); Posner, supra note 5; Louis H. Pollak, The Disjunction Between Judge Edwards and Professor Priest, 91 Mich. L. Rev. 2113 (1993).
62. I included in my study only full opinions of the Tax Court as reported in United States Tax Reports and did not include within the study so-called memorandum opinions, which are not published in official form although they are made available through two commercial reporters. Memorandum opinions are the work of one judge only and are issued solely to dispose of a case heard by a single judge. They are technically not of precedential value. In contrast, official opinions of the Tax Court are the work of a panel of judges, are of precedential value, and are included in the official United States Tax Reports. I used volumes 103 through 106 of the United States Tax Reports, covering the period from July 1, 1994, to June 30, 1996.
63. This was possible because CCH and RIA each produce two bound volumes per year which contain all non-Tax Court opinions on federal tax matters produced each year. For my study I used volumes 95-1, 95-2, 96-1, and 96-2 of United States Tax Cases produced by CCH and covering calender years 1995 and 1996. The less-than-perfect overlap in time period involved in my Tax Court and non-Tax Court studies was the result of a temporary disjunction in the availability of materials studied.
64. For the .26 rate, see Saks et al., supra note 5, at 367 n.64. For the .184 rate, see Louis J. Sirico, Jr. & Beth A. Drew, The Citing of Law Reviews by the United States Courts of Appeals: An Empirical Anaylsis, 45 U. Miami L. Rev. 1051 (1991).
65. For the .26 rate, see Saks et al., supra note 5, at 367 n.64. For the .184 rate, see Louis J. Sirico, Jr. & Beth A. Drew, The Citing of Law Reviews by the United States Courts of Appeals: An Empirical Anaylsis, 45 U. Miami L. Rev. 1051 (1991).
66. The Tax Court cited 61 law review articles (plus one nonlaw journal) in 131 cases, resulting in a rate of citation per case of .465.
67. In 1,145 cases there were 90 citations to legal journals, resulting in a citation-per-case rate of .079.
68. See 26 C.F.R. § 1.6662-4(d)(3)(iii) (2000).
69. Paul L. Caron et al., Federal Income Tax Anthology (Cincinnati, 1997).
70. Philip D. Oliver & Fred W. Peel, Jr., Tax Policy: Readings and Materials (Westbury, 1996).
71. For Tax Policy the principal sources of edited articles, listed in declining order of significance (with the number of edited articles listed in parentheses following the journal name), are Tax Notes (13); National Tax Journal (8); Tax Law Review (6); and Harvard Law Review (4). For Federal Income Tax Anthology: Tax Notes (22); Tax Law Review (16); Harvard Law Review (11); and Virginia Tax Review and Texas Law Review (tied at 7).
72. For Tax Policy the principal sources of edited articles, listed in declining order of significance (with the number of edited articles listed in parentheses following the journal name), are Tax Notes (13); National Tax Journal (8); Tax Law Review (6); and Harvard Law Review (4). For Federal Income Tax Anthology: Tax Notes (22); Tax Law Review (16); Harvard Law Review (11); and Virginia Tax Review and Texas Law Review (tied at 7).
73. For Tax Policy the principal sources of edited articles, listed in declining order of significance (with the number of edited articles listed in parentheses following the journal name), are Tax Notes (13); National Tax Journal (8); Tax Law Review (6); and Harvard Law Review (4). For Federal Income Tax Anthology: Tax Notes (22); Tax Law Review (16); Harvard Law Review (11); and Virginia Tax Review and Texas Law Review (tied at 7).
74. For Tax Policy the principal sources of edited articles, listed in declining order of significance (with the number of edited articles listed in parentheses following the journal name), are Tax Notes (13); National Tax Journal (8); Tax Law Review (6); and Harvard Law Review (4). For Federal Income Tax Anthology: Tax Notes (22); Tax Law Review (16); Harvard Law Review (11); and Virginia Tax Review and Texas Law Review (tied at 7).
75. For Tax Policy the principal sources of edited articles, listed in declining order of significance (with the number of edited articles listed in parentheses following the journal name), are Tax Notes (13); National Tax Journal (8); Tax Law Review (6); and Harvard Law Review (4). For Federal Income Tax Anthology: Tax Notes (22); Tax Law Review (16); Harvard Law Review (11); and Virginia Tax Review and Texas Law Review (tied at 7).
76. For Tax Policy the principal sources of edited articles, listed in declining order of significance (with the number of edited articles listed in parentheses following the journal name), are Tax Notes (13); National Tax Journal (8); Tax Law Review (6); and Harvard Law Review (4). For Federal Income Tax Anthology: Tax Notes (22); Tax Law Review (16); Harvard Law Review (11); and Virginia Tax Review and Texas Law Review (tied at 7).
77. For Tax Policy the principal sources of edited articles, listed in declining order of significance (with the number of edited articles listed in parentheses following the journal name), are Tax Notes (13); National Tax Journal (8); Tax Law Review (6); and Harvard Law Review (4). For Federal Income Tax Anthology: Tax Notes (22); Tax Law Review (16); Harvard Law Review (11); and Virginia Tax Review and Texas Law Review (tied at 7).
78. For Tax Policy the principal sources of edited articles, listed in declining order of significance (with the number of edited articles listed in parentheses following the journal name), are Tax Notes (13); National Tax Journal (8); Tax Law Review (6); and Harvard Law Review (4). For Federal Income Tax Anthology: Tax Notes (22); Tax Law Review (16); Harvard Law Review (11); and Virginia Tax Review and Texas Law Review (tied at 7).
79. For information on the CBO I went to its Web site at 〈www.cbo.gov〉 (visited Dec. 29, 1999), and for information on the Joint Committee I went to 〈 www.house.gov/jct〉 (visited Dec. 29, 1999).
80. For information on the CBO I went to its Web site at 〈www.cbo.gov〉 (visited Dec. 29, 1999), and for information on the Joint Committee I went to 〈 www.house.gov/jct〉 (visited Dec. 29, 1999).
81. See The Professional Assessment of Legal Academics: On the Shift from Evaluator Judgment to Market Evaluations, 48 J. Legal Educ. 417 (1998).