Editor’s Corner: The Value of Legal Studies Research

The ABLJ’s mission is to publish the highest quality manuscripts in

business law and legal studies. The terms ‘‘business law’’ and ‘‘legal

studies’’ are broadly construed at the ABLJ for purposes of publication.

This broad construction necessarily and rightly invites submissions from a

variety of business-related legal topics. I was curious to see what manu-

scripts were actually published. I thought it would be interesting to go back

and review the last five full volumes of the ABLJ to see if hindsight offers

anything of interest. Things of interest would include the topical areas of

law that are most represented and whether any trends can be noticed over

the course of the last five years. In reviewing the data, I also made note of

the number of articles with an international or comparative law dimension,

as well as the number of non-American authors or coauthors. Before I

share the results, I would like to state two caveats. First, any classification of

legal typology is necessarily an arbitrary one. I did my best to group the

articles published on traditional topical areas. Second, numerous papers

had multiple dimensions that crossed subject areas. Therefore, I employed

a ‘‘main purpose or theme’’ test in order to pigeonhole a given article into

a single topical area. Here are the results:

Topic/International/AuthorsVolume

38Volume

39Volume

40Volume

41Volumes42–43 Totals

Intellectual Property/Technology 2 3 3 3 5 16 (20.8%)Corporate Governance 3 0 2 4 5 14 (18.2%)Employment/Discrimination/Labor Law 3 2 3 3 2 13 (16.9%)Litigation/Attorney–Client 0 4 0 0 1 5 (6.5%)Contracts 1 2 1 1 0 5 (6.5%)Real Property/Environmental 2 0 1 1 0 4 (5.2%)Constitutional Law 3 1 0 0 0 4 (5.2%)Commercial Law

(Bankruptcy/Banking/Insurance)0 2 2 0 0 4 (5.2%)

Higher Education 1 1 0 1 0 3 (3.9%)Foreign Relations/International Trade 0 0 2 0 1 3 (3.9%)Ethics (General/Whistleblowing) 3 0 0 0 0 3 (3.9%)Others 1 0 1 0 1 3 (3.9%)International/Comparative Dimension 3 2 6 3 4 18 (23.4%)Non-American Authors 0 1 1 1 3 6 (8%)

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The ABLJ published 77 articles through five full volumes (Volumes

38, 39, 40, 41, and 43) and a special volume (Volume 42:1–6). The three

most popular topical areas were intellectual property/technology (16),

corporate governance (14), and employment/discrimination/labor law

(13). All told, these three broad areas of law provided over half of the

published articles (55.9%). Almost a full quarter (23.4%) of articles either

addressed an international law topic or had an international law dimen-

sion, such as comparing U.S. law with a law of another country (Canada,

European Union) or reviewing the law of a foreign jurisdiction (European

Union, China). The core private law areas of contract, property, and torts

were only modestly represented with 6.5% (5 articles), 5.2% (4 articles),

and a surprising 0%, respectfully. Also, surprisingly, there were only four

constitutional law articles (with free speech rights implicated in two of the

articles).1 The number of authors not associated with a U.S. educational

institution or not practicing law in the United States was a modest six

(7.8%). Although the trend may be in favor of more foreign authorships

with three of the six foreign authors represented in the two most recent

volumes (16% of the articles published in those two volumes). The three

articles classified as ‘‘Others’’ included articles on law and economics,

franchising, and genetic testing/medical ethics. Only one article could be

classified as representing empirical legal studies.

From a more intellectual perspective, the above statistics offer some

insight into the interface between law and society and, more specifically, on

the role of legal studies in business scholarship. These relationships (law–

society; legal studies–business) have been the subject of a long-standing

debate stemming, more recently, from the legal realist movement of the

1930s.2 The debate deals with whether law is merely a creation or

reflection of developments in society at largeFthrough law’s recognition

of societal norms, morality, practices, and customsFor whether law can be

a critical or transformative force for change in society.3 In reviewing the

1It should be noted that articles that were classified under ‘‘employment discrimination’’clearly possessed constitutional law-related issues.

2See WILLIAM TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT (1973); Karl N. Llewellyn,A Realistic JurisprudenceFThe Next Step, 30 COLUM. L. REV. 431 (1930).

3An example taken from contract law is the reasonable person standard. ‘‘[T]he reasonableperson standard is both a descriptive and normative undertaking. It functions not only touncover the is of the transaction but also to mark off the impermissible.’’ Larry A. DiMatteo,A Theory of Interpretation in the Realm of Idealism, 5 DEPAUL BUS. & COMM. L.J. (forthcoming

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articles of the last five or so volumes, I would conjecture that law and legal

studies scholarship reflects, and at the same time interjects into, real-world

developments. More broadly stated, the articles support the notion that

law and legal scholarship serve both descriptive and normative functions.

The normative–descriptive blend4 is reflected in the fact that most

legal developments, especially those found in the legal studies of business,

are facilitative in nature. Thus, many of the articles published in the ABLJpose a facilitative means, through law, of responding to or solving the

business and legal problems of the day. ‘‘It is through the process of legal

scholarship that the standards which define and regulate business practices

evolve. It is within this context that the [ABLJ] finds its mission to peer-

review and ultimately publish the scholarly analysis of legal studies in

business.’’5 The fact that the largest number of articles published came in

the areas of intellectual property/technology, corporate governance, and

employment/labor/discrimination should not come as a surprise given the

problems businesses have faced recently in those areas.

Looking back, I have been struck by the quality of the articles

published in the ABLJ. They were products of careful research and clarity

of writing. They rank high in analytical rigor and are true to our

intellectual calling as legal scholars. In the end, the authors admirably

analyze the world and the law as they see it and offer insight into how best

to use the law to facilitate change in the society it seeks to serve.

FLarry A. DiMatteo

2006) (emphasis in original). See also Larry A. DiMatteo, The Counterpoise of Contracts: TheReasonable Person Standard and the Subjectivity of Judgment, 48 S.C. L. REV. 293 (1997) (tracessources and composition of reasonable person standard).

4‘‘To live in a legal world requires that one know not only the precepts, but also theirconnections to possible and plausible states of affairs. It requires that one integrate not onlythe is and the ought, [but] . . . the what might be.’’ Robert M. Cover, The Supreme Court, 1982Term–Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 10 (1983) (emphasis in original).

5Joan T.A. Gabel, Editor’s Corner: Law and Ethics in the Business School, 42 AM. BUS. L.J. v, v–vi(2005).

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