The Long Tail of Legal Scholarship
Chris Anderson’s book, The Long Tail: Why the Future of Business Is Selling Less of More, has attracted enormous attention since its publication in July 2006. His insight is that technology and the Internet have transformed the focus of America’s culture and economy. Whereas pre-Internet firms turned out a small number of “hits” or blockbuster products (the “head” of the demand curve), today’s Internet-era firms offer a broader range of niche products (the “tail”). This Essay argues that the long tail theory can help both explain the current state of legal scholarship and chart its future.
I. The Long Tail Theory
Chris Anderson, editor-in-chief of Wired magazine, first published The Long Tail in a 2004 article in his magazine, and then later refined it through his blog, The Long Tail. Prior to the Internet, the economy and culture focused on a few hits because of scarcity—there simply was not enough time, space, or money for businesses to offer everything for everybody. In this top-down world, bricks-and-mortar businesses devoted enormous resources (money and talent) to generating blockbuster hits with widespread appeal. The 80/20 rule was the dominant model—20 percent of a business’s products accounted for 80 percent of its sales (and usually 100 percent of its profits).
The long tail emerges in markets where technology dramatically reduces the costs of reaching niches through one or more of these powerful forces: (1) democratizing the tools of production greatly expands the universe of content; (2) democratizing distribution greatly reduces the costs of consumption; and (3) connecting supply and demand by lowering search costs of finding niche content drives demand down the tail. In the long tail model, these forces allow online businesses to greatly increase the variety of their products. Anderson argues that 98 percent of a long tail business’s products sell at least one unit in a quarter; on a cumulative basis, these small numbers of sales of large numbers of niche products generate enormous revenues and profits.
Anderson identifies six themes of the long tail economy:
| 1. In virtually all markets, there are far more niche goods than hits.
2. The cost of reaching those niches is now falling dramatically. 3. Simply offering more variety, however, does not shift demand by itself. Consumers must be given ways to find niches that suit their particular needs and interests. A range of tools and techniques—from recommendations to rankings—are effective at doing this. 4. Once there’s massively expanded variety and the filters to sort through it, the demand curve flattens. There are still hits and niches, but the hits are relatively less popular and the niches relatively more so. 5. All the niches add up. Although none sell in huge numbers, there are so many niche products that collectively they can comprise a market rivaling the hits. 6. Once all of this is in place, the natural shape of demand is revealed . . . . [T]hat shape is far less hit-driven than we have been led to believe. |
II. The Long Tail of Legal Scholarship
Does the long tail theory apply to the market for legal scholarship? Data from Tom Smith’s ongoing research project, The Web of Law, paints legal scholarship as a hit-driven market, in contrast to the long tail theory’s predictions. Smith’s data from LexisNexis’s Shepard’s database of 385,000 articles published in 726 law reviews reveals a classic 80/20 distribution of citations in cases and other law review articles: the top 17% of articles get 79% of all citations. The head of the tail is enormous, as the top 0.5% of articles get 18% of all citations, and the top 5.2% of articles get 50% of all citations. The tail ends abruptly, as 40% of articles are never cited at all.
This hit-driven market for legal scholarship is contrary to the results predicted by the long tail model, which is surprising given the recent technological changes in the production and dissemination of legal scholarship. Technology has dramatically reduced the costs of reaching niches through the forces identified by Anderson. The shift from typewriters to word processors and from physical to electronic source materials, combined with the increased emphasis on scholarship in today’s rankings-obsessed law school world, has led to an explosion in the amount of legal scholarship produced each year. In addition, various Internet tools such as Google Scholar, HeinOnLine, LexisNexis, Westlaw, the Social Science Research Network (SSRN), and blogs have both lowered the costs of accessing this torrent of scholarship and provided new tools for locating scholarship of interest.
Scholars continue to debate whether the market for legal scholarship will develop a longer tail. Glenn Reynolds predicted early in the Internet age that technology (he focused exclusively on LexisNexis and Westlaw) would flatten the hierarchy of legal scholarship and thereby lengthen the market’s tail. Tom Smith, however, argues that network effects will continue to produce hierarchical results as search engines become increasingly sophisticated and thereby drive citations to the market’s head:
Chris Anderson would contend that these forces should expand the tail of legal scholarship. According to Anderson’s theory, Google and other sophisticated search vehicles should not only eliminate junk results for those seeking hits, but also uncover more diamonds in the mud for those seeking niches. The long tail prediction is that those scholarly niches will become cumulatively more important over time than the scholarly hits.
Perhaps the variance between Smith’s results and Anderson’s predictions exists only because citations are an inapt measure of the long tail. I previously have cataloged the many objections to the use of citation counts. Citations reflect one particular end-use of an article; they do not measure how many times an article is read but not cited by a judge or professor. Moreover, citation counts ignore the vast audience for legal scholarship beyond jurists and academics (such as practicing lawyers, students, and librarians). A better measure would focus on the consumption, rather than the end use, of legal scholarship.
For example, the number of online page hits or print requests of articles on LexisNexis or Westlaw would offer a more comprehensive measure than citations counts. Another approach I have advocated elsewhere is to use downloads counts from SSRN. Since its inception in 1994, SSRN has permitted authors to post papers, and readers to download most papers, free of charge. As of this writing, the SSRN database contains 100,317 papers, which have been downloaded 11,798,948 times, including 2,726,979 downloads in the past year. In March 2005, SSRN began ranking law school faculties and individual law professors in the following categories: downloads, papers, and downloads per paper, both all-time and within the past year. SSRN updates these rankings each month; in its most recent rankings (August 2006), SSRN provided data on 359 U.S. and foreign law schools and 1500 law faculty.
Gregg Gordon, President and CEO of SSRN, was kind enough to share with me data on the 3532 law faculty who have posted at least one paper on SSRN. (The data on individual papers are more difficult to extract; I may explore the implications of that data in future work.) These 3532 law faculty have posted 11,506 papers on SSRN (4,414 papers in the past year), which have been downloaded 2,446,491 times (749,332 downloads in the past year).
As with the Smith citation data, the SSRN download data yield an 80/20 distribution: the top 20% of authors have 77.6% of the new downloads (83.2% of the total downloads). Indeed, the SSRN download data are quite similar to Smith’s citations data:
| Table 1: Citation and Download Distribution from SSRN | |||
| Top | Citations | Total Downloads | New Downloads |
| 0.5% | 18% | 21% | 16% |
| 5.2% | 50% | 57% | 50% |
| 17% | 79% | 80% | 74% |
The SSRN data reveal the head of the download distribution:
The head is even more evident among the 1000 most-downloaded authors:
But a closer look at the end of the distribution reveals a much longer tail than is reflected in the citations data:
Consistent with the long tail thesis, 97% of authors have had at least one download in the past year and 100% have had at least one download at some time. (This long tail is not present in citations data; 40% of articles have never been cited.) The shift in legal scholarship toward the tail is clear from a comparison of new downloads to total downloads:
| Table 2: SSRN Download Data (through Aug. 1, 2006) | ||
| Head/Tail | New Downloads | Total Downloads |
| Top 10% | 62.9% | 70.2% |
| Top 20% | 77.6% | 83.2% |
| Top 25% | 82.0% | 86.9% |
| Top 33% | 87.4% | 91.2% |
| Bottom 33% | 2.2% | 1.4% |
| Bottom 25% | 1.1% | 0.7% |
| Bottom 20% | 0.7% | 0.4% |
| Bottom 10% | 0.1% | 0.1% |
As the SSRN data show, the hits are now receiving fewer downloads, while the tail is receiving more. As Larry Solum has suggested, we should welcome this shift:
Much work remains to be done to understand the implications of the long tail theory on legal scholarship. Tom Smith’s continuing research on the application of network theory to law, and the long-range project on the evolution of legal scholarship by Funmi Arewa, Ken Dau-Schmidt, Bill Henderson, and Andy Morriss, will undoubtedly offer many insights on the market for legal scholarship. The study of SSRN downloads data can help shed light on the consumption of legal scholarship and, as Larry Cunningham has observed, also help transform the production of legal scholarship as faculty adjust research agendas in response to increasingly sophisticated market feedback on their work.
Paul L. Caron is Charles Hartsock Professor of Law and Director of Faculty Projects, University of Cincinnati College of Law; Publisher and Editor-in-Chief, Law Professor Blogs Network (http://www.lawprofessorblogs.com) and TaxProf Blog (http://taxprof.typepad.com); Editor, Tax Law Journals, Social Science Research Network (http://www.ssrn.com); and Publisher, Leiter’s Law School Rankings (http://www.leiterrankings.com).
Preferred Citation: Paul L. Caron, The Long Tail of Legal Scholarship, 116 Yale L.J. Pocket Part 38 (2006), http://yalelawjournal.org/forum/the-long-tail-of-legal-scholarship.