It’s the season for spring law review submissions. The season, and my own submission of “Impracticability Under the U.C.C. for Wartime Contracts” via ExpressO yesterday, had me recalling Larry Garvin’s “The Strange Death of Academic Commercial Law.” Larry argues that there has been a decline in the area of commercial law in terms of faculty numbers, courses taught and scholarship produced. Larry observes that “[m]any issues of the Current Index of Legal Periodicals have nothing in commercial law, or nothing other than perhaps a student note or a survey of state law.” Larry (I think correctly) argues that the status of commercial law is tied to the quantity and quality of scholarship produced. For the three year period ending 2005, Larry’s study found just 219 articles on commercial law (criminal law in the same period had 1415 articles). And, this number itself may be inflated due to inclusion of non-academic articles. So, he portrays a dim look at the quantity of scholarship we in commercial law are producing. Not to say we aren’t writing at all. Perhaps we are writing about other issues? Even if the number of faculty in commercial law has declined, perhaps those in commercial law might assume some responsibility here to make sure that they are teaching and publishing in the area. A constitutional law faculty member once told me not to write in the area because there was nothing to say. To this, I disagree. The area is active and the diversity of posts just on this blog suggests that the topics worthy of discussion are many
But . . . placement matters too. Not only does Larry’s essay tell a grim tale of the number of articles as a whole, but the study found no articles in the top ten journals for 2004-05 and only 2 in the same period for the top sixteen journals. I find myself asking whether there is a corollary between the secondary position of commercial law in the curriculum of some law schools and the lesser placement of scholarly commercial law articles. Jim's post about teaching commercial law is ultimately related to issues of scholarship as well. Students who don’t have an opportunity to take, learn and appreciate commercial law are the same ones who make publication decisions for the reviews. If some view the study as one that is only encouraged because it is necessary, the same would appear true of scholarship. It seems to be a problem that will perpetuate itself without law review editors being bold enough to publish work that falls outside some of the typical parameters (high citation counts and former placements). And, again, if there aren’t plenty of submissions of commercial law papers to the law reviews, it becomes an anomaly for the editors to see such things.
Agree or not with Larry’s findings. The status of commercial law does depend on what we do and how engaged we are with our field. I, like many others, will wait out the next few weeks to see what becomes of my manuscript. Wherever it ends up, I will continue to write in the area. There is always hope that the more pieces the law review editors see on their desk with “U.C.C.” lurking somewhere in the title, abstract or first page, the more likely that the status of the scholarship will gain a greater sense of appreciation. It will be worth seeing how the March submission cycle treats commercial law authors. Best to all in this season.
