How Often Should Judges Cite Law Review Articles?:
In the New York Times, Adam Liptak has a very interesting article on the apparent decline in citations to law review articles in judicial opinions over the law few decades. You should read the whole thing, but here's an excerpt:
Second, it's impossible to say whether it's good or bad that judges are citing articles less often without knowing what articles are being cited (or not) and why. If judges are now less inclined to engage with thoughtful scholarship that deals seriously with legal sources, then that's a shame. On the other hand, very few law review articles fit this bill. I only read a very tiny fraction of the published legal scholarship, but my sense is that a lot of law review scholarship is not terribly serious about engaging with the law. If judges aren't paying any attention to such scholarship, then good for them: they know enough not to be fooled by fancy academic pedigrees and prestigious journals. Silliness in the Harvard Law Review is still silliness, and it's a good thing if judges recognize that.
Anyway, that's my preliminary take. There's a lot here, so I look forward to reading the comment thread. (Thanks to How Appealing for the link, and to Adam for the shout-out — just as good as a judicial citation in my book.)
Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them.There's a lot here, but let me offer two quick thoughts. First, I do think the existence of online databases has caused a great deal of the shift in citation practices. It's now much easier to find the law, as Marci Hamilton suggests. Further, many more people have ready access to all of the original sources. Do you need to find an 1850's decision in the New Hampshire reports? An entry in the Federal Register from 1979? No problem, it's all on Westlaw. As a result, it's much more helpful for judges to cite authorities directly rather than law review articles that discuss them.
The upshot is that the 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. . . . "The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable," Professor Dorf said.
There are other reasons for the diminished influence of law reviews. One is the emergence of electronic databases.
"Before search engines," said Marci A. Hamilton, a law professor at Cardozo, "if you wanted to figure out what all the cases on a given topic said, you went to a law review." Now you punch some words into Lexis or Westlaw. . . . .
"If the academy does want to change the world," Judge Reena Raggi said, "it does need to be part of the world."
To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs.
Second, it's impossible to say whether it's good or bad that judges are citing articles less often without knowing what articles are being cited (or not) and why. If judges are now less inclined to engage with thoughtful scholarship that deals seriously with legal sources, then that's a shame. On the other hand, very few law review articles fit this bill. I only read a very tiny fraction of the published legal scholarship, but my sense is that a lot of law review scholarship is not terribly serious about engaging with the law. If judges aren't paying any attention to such scholarship, then good for them: they know enough not to be fooled by fancy academic pedigrees and prestigious journals. Silliness in the Harvard Law Review is still silliness, and it's a good thing if judges recognize that.
Anyway, that's my preliminary take. There's a lot here, so I look forward to reading the comment thread. (Thanks to How Appealing for the link, and to Adam for the shout-out — just as good as a judicial citation in my book.)
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Part of the problem is that the articles are too long. Much of what is written in law review article is not new. The excessive citation is also crazy (I'm just a peon on law review, so don't blame me).
As a student, I published an article in a journal. The article was cited in a Senate Report. It was entertaining being cited. Did anyone ever read it? I think so, but who knows.
I think this is one of the causes in the decline of citations to law reviews. And, like I said, I think we're at least partly to blame for creating this situation.
Well, but a professor WOULD say that, wouldn't he?
Perhaps if law professors would write about the implications of legal decisions, it would be more helpful to judges. But that would require a prof to know something about how the real world actually works.
How many law review articles were written about the 4th Amendment with authors who never once ever talked with an actual cop? Damn few, I'd say, and that makes few articles worth the paper they are written on.
And that's too bad, since judges can't be expected to know how the real world works on every subject. It WOULD actually be helpful if a prof. actually knew what he was talking about and offered guidance to the courts on how best to proceed in areas of specialty, such as copyright law, or searches and seizures, for instance.
This criticism is overblown. Law profs offer very astute analysis of recent decisions---but they do so on blogs, for the most part.
An article whose basic premise is "the implications of X case" wouldn't normally be very good. There aren't that many cases that are so important that profs can write an entire essay or article about them. (And the few that are sufficiently important, like Chevron, get written about to death.) So profs turn to blogs, op-eds, or textbooks to make their arguments. Which is fine; law reviews don't have to be the forum for every type of legal argument.
The best essays/articles are (1) empirical studies and (2) those that try to rethink an entire field of law. We need more of those, profs!
As a practitioner, I'm frequently looking for articles that thoroughly analyze and try to rationalize an area of doctrine. When I do find such articles, they're usually in "lesser" journals, which suggests to me that either the "better" journals aren't accepting those articles or the "better" professors aren't writing them.
This is a universal problem in the academia in general. Other than the hard sciences, where theses are testable and practical, most academic writing is for very limited peer groups. There are entire disciplines whose only output is for internal consumption, and where a degree is only useful for teaching in that discipline.
Basically, the hard sciences write to reality; others write for mutual reinforcement: in other words, self-perpetuating triviality.
I cite in evidence a recent item on this blog, "Tamanaha's Temptation," (March 17)regarding the reluctance of an academic to give a poor review of the output of a fellow academic.
Personally, I have been tightening up my definition of the hard sciences recently. The global warming advocates, IMO, do not fall in that category. But that touches on politics - which perhaps is the primary reason for this problem.
Prof. Kerr writes, "Second, it's impossible to say whether it's good or bad that judges are citing articles less often without knowing what articles are being cited (or not) and why."
This is only a partial answer to the question, but in 2002, Craig Nard did an empirical study comparing citations at the Federal Circuit with citations in patent cases with CA9 and CA2 citations in copyright and TM cases. Their results are at pp. 12-17 of this file.
I hope Dorf's quote had some surrounding context that would make him sound less whiny.
I suspect that Marci Hamilton's answer explains much of the drop in citations. If true, that would tend to suggest that judges never had that much use for law review articles in the first place, except as a finding aid to "the law."
It could be the judges only found useful substantive ideas in 25% of the articles they cited, and the availability of Westlaw has eliminated the need to cite articles used as finding aids.
I was wondering if you could square for us what appears here to be a disappointment with the decline in citations to law review articles with other posts you have written taking issue with citation to foreign law.
Is it your belief that law review articles (presumably written by US scholars about US law) have value as binding precedent? More so than foreign law?
I assume (but don't claim to know) that you mean law review articles should be cited as guiding thought -- not as binding precedent, but for their persuasiveness. This, of course, is what most supporters of reliance on foreign law in recent supreme court opinions have always argued.
Just wondering how you square your two seemingly divergent opinions.
[OK Comments: Josh, I'm afraid you misunderstand both my post and the reason for my opposition to citing foreign law. First, you misstate my position on citing law review articles: while you say I seem "disappointed" by the decline in citations, I expressly state in my post that we cannot reach a normative judgment without knowing what articles are being cited (or not) and why.
In any event, my view is consistent: I think it is good if judges engage with thoughtful and serious analyses of the relevant legal issues before them, but that they should not cite sources that do not satisy this standard. Why is this relevant to the debate over citing foreign sources? When the Supreme Court cites foreign law, the foreign law it cites usually isn't even an effort to analyze or interpret U.S. law. Whether the legislature of Antigua, Belize, or Denmark decides to legalize gambling has no relevance for whether the U.S. Constitution contains a constitutional right to gamble. It's not an effort to understand the meaning of Due Process; it's a decision as to what is in the best interests of Antigua, Belize, or Denmark.
The better comparison between citing foreign law and law review articles would be if Justices looked at law review articles and counted the number of articles that seemed to be in favor of particular results versus against them as a mater of policy, and then announced that the weight of the commentary supported the Court's conclusion as to the meaning of the Constitution. So for example, imagine the Supreme Court established a constitutional right to gamble, and in its opinion stated that its judgment was "supported" by the fact that it found 14 articles and student notes on Westlaw that opposed gambling laws but only 5 articles and student notes on Westlaw that supported it. I would think this highly inappropriate, just as I think it highly inappropriate to make the same points as to foreign law.]
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Abstracts and full text downloads are available at the HLR site. These all look interesting, but I only see two (Precontractual Liability and Sosa) that look at all likely to be cited in a court case in the foreseeable future. If professors (and journals) are producing policy/think pieces instead of doctrinal analyses, why the surprise and anger when the courts don't cite them?
I think the main problem with journal articles these days is that they are simple TOO LONG. Articles simply don't stand for one proposition and try to support that proposition. They try to espouse an entirely new understanding of an entire area of law (or two or three areas overlapping). But change in the law, at least through court opinions, is incremental. If I'm thinking about how a case should come out and which direction a legal rule should take in a case that is almost certainly focused on a narrow issue, how is an 80-page article with 300 footnotes going to help me? It takes too long to read, too much effort to synthesize, and makes too many sweeping points to be helpful. And that's if it's even on a topic that has anything to do with the case; most articles these days are completely removed from the reality of actual legal practice.
It would be interesting to see how many times courts (including the Supreme Court) cite to much narrower, shorter articles, particularly those addressing one case. I'm thinking specifically of the Harvard Law Review's November issue, where students write 10-page summaries of recent cases and offer a short analysis. These notes are much more concise and much more on point to one or two particular propositions, and since they discuss recent cases -- the ramifications of which are likely to be addressed by the Court in immediately future Terms -- I would imagine they are actually much more helpful to judges and Justices than law professors' abstruse 85-page magnum opi on esoteric topics.
Anyone can write an article; not everyone can write an opinion.
I have a philosophical question. How are the actual users of the law (i.e. citizens) expected to behave legally if that depends upon looking at an 1850's decision in a New Hampshire report? Or an entry in the Federal Register from 1979?
In other words, if learning 'the law' requires looking at such obscure texts (Whether on the internet, or in libraries, or having been quoted in a law review is unimportant), isn't 'the law' broken by definition?
My assumption is that activities are legal unless they are specifically banned (i.e. it is illegal to stab somebody because it is written thus in some law book somewhere. It is not illegal to spit on the sidewalk unless it is specifically written into my local statute thus, etc). I realize that you can't predict in advance what combination of activities will qualify as 'legal' or 'illegal' (thus, is it copyright violation to post commercials on YouTube? Is it copyright violation to share electronic versions of songs? etc etc.) Technological devlopment opens up new opportunities for behavior that were unforseen.
But if charging or not charging someone for a crime depends upon a particular interpretation of an 1850's decision in a New Hampshire report, then I would argue that such a law is not 'specifically written' (or however such a concept is defined in legal mumbo-jumbo).
In short, I can see debating this arcana in order to write FUTURE law. But I don't understand how debating this stuff can be validly used to define PREVIOUS behavior as legal or illegal.
And if its being used to write FUTURE law, well, who cares what they thought in 1850's New Hampshire? We're writing a law for tomorrow-not for 160 years ago.
Sk
What is most depressing, however, is not the fact that law professors write about matters that are not relevant to lawyers and the legal profession, but instead the apparent scorn they have for people who actually do write about the law. Seems like an article that discusses (god forbid) a statute or a case is considered "inferior," "dry," or perhaps "lacks creativity."
In another 20 years, perhaps the forays into non-legal areas will have so captivated the academy that one will have to take a "Law and...Law" class to learn anything about the law, as the curriculum will have been largely overtaken by CLS or L&E or CRT or whatever it is that dominates today.
It's not our fault. We rarely get publishable submissions on "commercial law" (which I guess you mean to include contract, securities, bankruptcy, etc.). Most of the good stuff that we get is theory or constitutional law related. If we had good commercial law submissions, we would publish them, so that we would have a better balance between conlaw/theory and practical stuff. But we don't get very many good practical submissions. (In fact, I can think of only one submission that I thought was publishable that did not have anything to do with constitutional law.)
But I would like to see some academic attention to the question of whether the SCOTUS is subject to the law or is simply a free-wheeling exercise of power.
Is was not my intent to misstate your opinions. If I did, I apologize. So I guess I'll just ask the question: Do you believe that judges (state, federal, trial or appellate) can rely on foreign laws AND law review articles equally, not as binding precedent, but for guidance?
My example would be any court's attempt to determine what cruel and unusual punishment in a normative sense might be. A court might view foreign law as persuasive (but not binding) and may read law review articles that analyze the issue as persuasive (but not binding).
Again, I would appreciate your thoughts on that example.
In your hypothetical, is the foreign court decision an attempt to analyze the meaning of cruel and unusual punishment as understood under the Eighth Amendment of the U.S. Constitution?
As a commercial law professor at a top 5 US News law school, I can assure you that there are plenty of "publishable" commercial law (broadly defined) submissions but that students often just don't know their ass from their head, and much of what does get published is the L&E drivel by econotroopers who apply the same predictable analytical moves to every topic they confront while ignoring all of the bumps and warts of business and law that real attorneys have to address.
Thank you! I too am fed up with these econo-nazis who think that every aspect of has an easy answer.
Yes. Two potential sources for interpreting the meaning of "cruel and unusual" in the Constitution. I'd like to answer your question without going totally on the tangent of constitutional interpretation -- textualism, originalism, founders' intent, etc. Maybe that's not possible. But it seems to me that the phrase is a normative one. What does the phrase mean -- to us today, to the founders, to others across the globe, to academics who write law review articles that analyze the meaning in historical terms both domestically and worldwide?
I'd like to tie this back to your original post (and I'm seeing my original misreading of it this second time). However, I still would think a historical analysis of the term, both domestically and globally, would be sound academics and useful to courts in informing them (not binding them) in their decision.
It is interesting and helpful to judges and lawyers to know the answers to the real questions, such as do appellate lawyers cite to law review articles, and if they do, do they the judges make any indicatation at oral arguments, or in their decisions they read them (i.e. with or without citing to them)? (And, I think we should assume that 90% of the time that law review articles are read, or more, they are not cited...) (and survey research could confirm this.)