Uncommon Sense
by Gary Becker & Richard Posner
Notes
Uncommon Sense is a compilation of lightly edited posts from the Becker-Posner blog, which ran from 2004 to 2014 but is currently down. With each chapter Becker, a nobel laureate in economics—or Posner, the most highly-cited legal scholar of all time1—react to a timely policy issue, often using price theory or law & econ reasoning to make predictions or policy arguments. The other author responds thereafter. Given the authors' backgrounds, I was already familiar with them, but I must admit this is the first book of either of theirs I've read, if one can really call it that. For both authors I can say I'm often unable to predict their position on any given issue, and I believe that to be a very good sign (I often try, when reading essays or blogs, to anticipate the author's argument. If I can routinely do so, why should I even read them?). The essays are grouped into sections, based on six broad areas. Below are my brief thoughts on each.
I. Sex and Population
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| Rank | Scholar | Citations |
|---|---|---|
| 1. | Richard A. Posner | 48,852 |
| 2. | Cass Sunstein | 35,584 |
| 3. | Ronald Dworkin | 20,778 |
| 4. | Laurence H. Tribe | 20,745 |
| 5. | Richard A. Epstein | 16,782 |
| 6. | Oliver Wendell Holmes, Jr. | 15,633 |
| 7. | William N. Eskridge, Jr. | 15,570 |
| 8. | Mark A. Lemley | 15,540 |
| 9. | Frank H. Easterbrook | 14,971 |
| 10. | William L. Prosser | 14,761 |
| 11. | John Hart Ely | 13,255 |
| 12. | Roscoe Pound | 12,446 |
| 13. | Kenneth Culp Davis | 12,287 |
| 14. | Karl N. Llewellyn | 11,814 |
| 15. | Mark V. Tushnet | 11,761 |
| 16. | Bruce Ackerman | 11,619 |
| 17. | Charles Alan Wright | 11,601 |
| 18. | Akhil Reed Amar | 11,375 |
| 19. | Frederick Schauer | 11,222 |
| 20. | Herbert Wechsler | 11,185 |
| 21. | Erwin Chemerinsky | 11,147 |
| 22. | Daniel A. Farber | 11,146 |
| 23. | John C. Coffee, Jr. | 10,731 |
| 24. | Henry M. Hart, Jr. | 10,556 |
| 25. | Guido Calabresi | 10,504 |
| 26. | Robert H. Bork | 10,464 |
| 27. | Wayne R. LaFave | 10,423 |
| 28. | Daniel R. Fischel | 10,359 |
| 29. | Lon L. Fuller | 10,260 |
| 30. | Richard Delgado | 9,925 |
| 31. | Alexander M. Bickel | 9,786 |
| 32. | Frank I. Michelman | 9,155 |
| 33. | Eric A. Posner | 9,101 |
| 34. | Martin H. Redish | 9,083 |
| 35. | Lawrence Lessig | 8,802 |
| 36. | Lawrence M. Friedman | 8,584 |
| 37. | William M. Landes | 8,538 |
| 38. | Gerald Gunther | 8,509 |
| 39. | Antonin Scalia | 8,498 |
| 40. | Catharine A. MacKinnon | 8,270 |
| 41. | Harry Kalven, Jr. | 8,267 |
| 42. | Grant Gilmore | 8,241 |
| 43. | Felix Frankfurter | 8,168 |
| 44. | Duncan Kennedy | 8,113 |
| 45. | Deborah L. Rhode | 7,944 |
| 46. | Owen M. Fiss | 7,890 |
| 47. | Jonathan R. Macey | 7,881 |
| 48. | Thomas W. Merrill | 7,878 |
| 49. | Louis Henkin | 7,736 |
| 50. | Lucian A. Bebchuk | 7,629 |
Source: Shapiro, Fred R. 2021. "The Most Cited Legal Scholars Revisited". University of Chicago Law Review 88: 1595–1632.
One funny note I discovered while reading this paper is that Shapiro initially sought out to rank law review articles by citations in 1985. This caused great controversy, atleast great according to law professors who publish articles counting how many times their colleagues are cited. That's a joke, Shapiro's ranking project actually did cause a real stir. In 1997 the Wall Street Journal printed a front-page story about him, headlined “‘Citology,’ the Study of Footnotes, Sweeps the Law Schools”.
Perhaps an even more humorous note is that Richard Posner himself, along with law professor William Landes (ranked 37th above), published a paper commenting on these attempts to rank law articles by influence. They raised some reasonable methodological concerns, but also argued that Gary Becker was snubbed!
"Taking these problems in reverse order, we point out that as a result of the last exclusion, Gary Becker's famous article on the economics of criminal punishment is not included in Shapiro's list of the one hundred most-cited law review articles in history, although, were it not for the exclusion, its 285 law review (including "law and" journal) citations would place it 45th in the list. Shapiro's procedure thus penalizes an article for having too many citations. Had Becker's article been less influential outside law and as a result had received fewer citations to nonlegal than to legal journals, it would have made Shapiro's top one hundred. He might reply that he is interested only in articles the primary impact of which is on legal scholarship. But the impact of an article on legal scholarship is not diminished by its impact on other fields. In any event, if all that Shapiro is interested in is the impact of an article on legal scholarship, why does he count, in making up his rankings, all citations to eligible articles? Why not count only citations in law journals?"
Posner and Landes also object that Shapiro should also rank authors and that books should be included. They mention Ronald Dworkin—third all time in the 2021 ranking—as an author who was snubbed by the exclusion of books. Shapiro would address these concerns in his 2000 ranking of law scholars, which ranked Posner first and Dworkin second.
Notice also that Richard Posner's son, Eric, is 33rd all time. Alright, that's enough for this rabbit hole.