On the occasion of the centennial of The Yale Law Journal, this essaypresents a compilation of the Journal's most-cited articles. Such a project, inan age already deluged with lists and rankings, bears a burden of justification.(Sheer curiosity may suffice as a rationale. For those of you who cannot waitto see the compilation, Table I is on page 1462.)Legal education has been buffeted by its full share of the ranking deluge.For example, U.S. News & World Report has published high-profile law schoolrankings, in the latest of which Harvard Law School placed a surprising fifthbecause of low scores in three areas not usually thought of as weaknesses ofthat school-namely, placement success, salaries of graduates, and graduationrate.' In the early 1980's, the deplorable Gourman Report attracted muchattention and, regrettably, influenced the choices of many law school applicantswith an ambitious rating of law schools. Among other remarkable features, theReport compared schools on a global scale (Paris beat out Harvard, Michigan,Yale, and Oxford for first, with Moscow State fifteenth) and exhibited a 100%correlation among five seemingly distinct components: quality of administration,quality of curriculum, faculty instruction, faculty research, and libraryresources.2
All this put governmental "enterprise" in a different light. In a 1971 revisitation of the takings issue," Sax suggested that it was proper for government to act positively in a way that simply protected these widespread and diffuse "public rights" against private depredations. One sees Sax's change of heart best in his altered attitude about wetlands, the protection of which he classed negatively as an "enterprise" in 1964, but as a positive protection of "public rights" in 1971. Once again, Sax's revisitation spawned a cottage industry. First, numerous writers have been attracted to the idea that government may act positively to protect public rights, in the exercise of a "public trust."'' 5 Second, a number of writers have followed Sax's lead in another historical direction, and have suggested another realm of positive action for government, namely its provision
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100. R. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). 101. See, e.g., Fischel & Shapiro, Takings, Insurance, and Michelman: Comments on Economic Interpretations of "Just Compensation" Law, 17 J. LEGAL STUD. 269 (1988). 102. Important early works were 1. BUCHANAN & G. TULLOCK, THE CALCULUS OF CONSENT (1965), and M. OLSON, THE LOGIC OF COLLECTIVE ACTION (1965). 103. Sax, supra note 57. 104. Sax, Takings, Private Property and Public Rights, 81 YALE L.J 149 (1971). 105. For a recent example, see Symposium: The Public Trust and the Waters of the American West: Yesterday, Today and Tomorrow, 19 ENVTL. L 425 (1989), and the literature cited therein. 1991]
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Most-Cited Articles of a forum for the working out of "civic republican" self-government.106 Sax himself has seen a connection between his own interest in public rights in natural resources and public consciousness in communities, and has suggested that communities as a whole might have rights that center on the common life of the citizenry.107 All this of course has come a great distance from Sax's original 1964 takings article. But like much interesting scholarship, the article set off a new scholarly conversation, and we are still learning where that conversation will lead. As a result, of course, the takings issue is even more of a mess-but also a more interesting mess-than it was in 1964. 106. See, e.g., Symposium: The Republican Civic Tradition, 97 YALE LJ. 1493 (1988); Symposium: Roads Not Taken: Undercurrents of Republican Thinking in Modern Constitutional Theory, 84 NW. L. R. 1 (1989).
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107. Sax, Do Communities have Rights? The National Parks as a Laboratory of New Ideas, 45 U. Prrr. L. REV. 499 (1984). 1481 1482 The Yale Law Journal [Vol. 100: 1449 Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499 (1961) (ranked seventh). Commentary by Guido Calabresi, Dean and Sterling Professor of Law, Yale Law School. Note Editor, The Yale Law Journal, 1957-58. Many questions left unanswered in that class, and in torts literature generally, like the reason for the "scope of employment" limitation on master-servant liability, seemed to me easy ones from even a simplistic economic perspective. Why, then, not look at torts law, indeed at all of law, from that perspective and see what one might learn?
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