Legal Commentary

For the book manuscript I'm working on with respect to First Amendment institutions, I included today a short discussion of the rules-vs-standards debate, with a typical footnote beginning, "The literature on this topic is vast" and followed by a set of canonical cites.  In doing the research, I could not help but be amused by the fact that at least fourteen articles use almost the exact same words, putting "rules," "standards," "literature," and "vast" in the same sentence.*  (I didn't bother to check for synonyms like "voluminous" and so on, which I'm sure would at least double the total.)  So not only is there a vast literature on the rules-vs-standards debate, but there is a fairly sizable literature of articles describing the rules-vs-standard literature as vast!  

Just as amusingly, although there is a vast literature suggesting that the literature on this subject is vast, everyone in the end cites the same few authors: typically, Louis Kaplow, Kathleen Sullivan, Pierre Schlag, Fred Schauer, Duncan Kennedy, sometimes Russell Korobkin or Cass Sunstein, and one or two others.  So the literature of articles saying the rules-vs-standards literature is vast is roughly twice as vast as the actual number of generally agreed-upon canonical articles on the subject.

Of course, that's not necessarily a contradiction; there are lots of rules-vs-standards articles, but only a few that are widely agreed to be great.  It's not clear that this is really a strong consensus; once a canon forms, it's generally more efficient to just cite to it than to bother doing the work of sorting through the literature for hidden gems or trying to de-canonize one of the unworthy chosen greats.  After a while, citation begets citation without much qualitative judgment entering into it.  And timeliness and good title-selection help too: Geoffrey Stone's articles on content distinctions and the First Amendment are great, but they are also relatively early and comprehensive treatments of that subject, and their titles mean they show up in every basic literature search.  Still, it's amusing to note that although everyone agrees that the rules-vs-standards literature is vast, everyone also agrees that only a decidedly non-vast number of articles on the subject appear to be worth reading.

I imagine this happens all the time and that folks in every field could find similar examples.  ("The literature on judicial review is vast.  See, e.g., Marbury v. Madison, Bickel, Thayer, and, um, that'll do."  "The literature on transaction costs is vast.  See R.H. Coase, The Problem of Social Costs, and . . . no, just stick with Coase, actually.")  Commenters are welcome to chime in with favorites of this kind from their own specialties.