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Judicial Citations to Legal Scholarship

Over at the Volokh Conspiracy, Orin Kerr mulls the question of why judges are citing fewer law review articles these days than in the past. He refers to an article in the New York Times about the topic:

[T]he legal academy has become much less influential. In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.

Patterns at other leading law reviews are similar. And the drop in the number of citations understates the phenomenon, as the courts’ caseload has exploded in the meantime.

Orin explains the phenomenon as the result of the fact that “a lot of law review scholarship is not terribly serious about engaging with the law.”

Other explanations commonly uttered: (1) law review articles are long and hard to read; (2) law review articles contain too much theory; and (3) law professors aren’t interested in issues of legal practice.

I don’t agree with any of these reasons. It is true that many law review articles are not written for judges or practicing lawyers. They are written for other academics. Or policymakers. Law review articles are written for many different audiences these days. But quite a few still have relevance for the practitioner.

I get rather annoyed at rather dismissive claims that law review articles are all useless or that the academy has abandoned caring about the practice of law. Such views often rest on the assumption that only doctrinal treatise-like articles are helpful for the practice of law. This is not necessarily the case — good theoretical and normative articles really can make a big difference if engaged with. Historically, many of the greatest jurists and lawyers were also among the most widely read; they read philosophy, literature, and a wide array of scholarship in the humanities. Today, it seems, the view is that law review articles are worthwhile if they will help in the resolution of a case. But articles might be worth reading just for general educational purposes. The articles of the legal realists, for example, helped change the way the law is conceived and practiced, yet these were meta articles about the law, not ones that would assist in any one particular case.

This isn’t the primary reason, though, why judges and lawyers don’t read as many law review articles today. So what’s my hypothesis? Why aren’t law review articles on the reading lists of many judges and lawyers?

The reason is practical — the good relevant articles are just too hard to find.

This is ironic given that all law review articles are available at everyone’s fingertips in the Westlaw and Lexis databases. But in the past, there were hardly as many law reviews and hardly as many law review articles. I don’t have stats to back me up, but I’m almost certain this is true. Only a small subset of law professors published articles with any regularity. Today, there are hundreds of law reviews, and they are all readily available. There are zillions of law review articles, as a much wider percentage of professors in the academy are writing.

The reality is that most law review articles aren’t all that great. This is to be expected. In nearly any field, much of what is written isn’t all that great. We’d be lucky if 10% is really good. Up the production level, and you get a lot more mediocre and bad work, and only a little more good work. What’s happening, in other words, is that the worthwhile articles are becoming needles in an ever-growing haystack.

Combine this with the fact that many articles are not written with a practitioner or judicial audience in mind, and the percentage of good articles that are relevant is very low. It’s just not efficient for the judge or practitioner to read articles. Good articles that are of use to judges and practitioners are still out there — it’s just increasingly harder for them to find these articles.

One possible solution: The academy needs a system where it recommends the cream of the crop. We should give judges and practitioners in our fields a list of some of the articles most worth reading. We should explain why they’re worth reading. Perhaps if we do a better job separating the needles from the haystack, judges and practitioners will once again start paying more attention to law review articles.

UPDATE: Eugene Volokh has some very thoughtful commentary over at the Volokh Conspiracy:

While legal scholarship should be as clear, as thoughtful, and as useful as possible for its theme, there are many themes that are eminently legitimate despite being not helpful for the decision of actual cases.

Consider one example: legal history. Some legal history may be relevant to legal decisions (for instance, when it elucidates the original meaning of some text, and when the original meaning is relevant to some case). But some may not be. . . .

Should we reject, or even deprecate, legal history because it’s not relevant enough to courts? Aren’t there other ways history can be useful — even if those are just a better understanding of what happened in the past, how our legal system came to be as it is, and what we might want to avoid in the future (even if it’s not up to courts to avoid it)? . . . .

Or consider another example: articles that are aimed at suggesting legislative or regulatory changes. Perfectly legitimate, it seems to me, despite not being aimed at judges. . . .

Why should there be a demand that law be a purely practical discipline, either in the sense of always having an immediate payoff in court decisions or in the sense of always focusing on uncovering specific facts rather than setting up theoretical frameworks that help us understand the facts? . . . .

[W]e shouldn’t, it seems to me, insist that all or even most legal scholarship be aimed at judges, or see certain genres’ lack of desire to influence judges as a sign of those genres’ inherent flaws.

I don’t agree with Eugene on many issues, but I agree completely with his post.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

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