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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:
  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.
  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.
  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.

  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.)
Billy Budd (mail):
When I first read this article, I thought that it'd be nice to pick up a piece or two (I'm an editor for a major law review) that a judge or practitioner could cite. But then I went through the submissions that we have on hand, and I realized that almost none of them fit the bill. Out of all of the publishable pieces, most would be cited only by other academics or by legislatures (actually, the best ones seem to be directed at legislatures). So, hey, don't blame us editors! It's your fault, professors! :)
3.19.2007 1:44am
GW student:
Very interesting.

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.
3.19.2007 1:45am
Billy Budd (mail):
I will describe one problem with law reviews for which we editors do share a lot of blame. It seems like profs submit a TON of pieces that are only tangentially about the law; they mention legal issues, but the heart of their analysis is something that belongs to another discipline---economics, psychology, political science, etc. These pieces make arguments that would seem very unoriginal---even banal---if they were made in journals of that other discipline. So why do profs submit them? I think that they've realized that most student editors can't identify which pieces would be utterly unoriginal in that other field. (Also, I think student editors suffer from extreme legal centrism, which exacerbates this problem.)

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.
3.19.2007 1:56am
Randy R. (mail):
Prof. Dorf: "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,"

Well, but a professor WOULD say that, wouldn't he?
3.19.2007 1:56am
Randy R. (mail):
There was an interesting article in today's (Sunday's) NY Times about how the Supreme Court has screwed up the law of copyright, and so we have this billion dollar lawsuit by Viacom against You Tube.

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.
3.19.2007 2:01am
new guy:
I enjoy the "new" articles on the impliations of Marbury v. Madison or the Erie doctrine.
3.19.2007 2:06am
Billy Budd (mail):
"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."

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!
3.19.2007 2:08am
Erasmus (mail):
I also wonder how often practicing lawyers cite law reviews now. In the past year, I've authored around 20 briefs -- some appellate, some trial court level. In all those briefs, I don't think I've cited a single law review article. Part of that hesitation is the concern that citing to a law review (generally rightly) means you have no cases on your side. It's a red flag for the judge -- hey! I have no binding authority to convince you to rule in my client's favor, but here's something that might make you think the law is different than it is! Perhaps it wasn't always like that.
3.19.2007 2:56am
guest:
I wonder how these numbers compare to the number of legal blogs that are being cited. I'd imagine the decline in one has been (at least somewhat) balanced by the other...
3.19.2007 6:11am
Visitor Again:
Back in the Sixties and Seventies I often cited law review articles in appellate briefs. They published lots of articles that were on the cutting edge of the law, and the courts cited them because often they anticipated the issues the judiciary confronted. In the Eighties and Nineties, the articles the law reviews published became increasingly esoteric and/or theoretical and I rarely cited them. These days I never cite them; in fact I rarely read them at all and only glance regularly at the index of a couple of them to see if there's anything of interest or use to me in them. There almost never is. I used to subscribe to four law reviews--the main reviews at Harvard, Yale and Cal (Boalt Hall) and the Harvard Civil Rights-Civil Liberties journal. Now I subscribe to none.
3.19.2007 7:55am
Doug Berman (mail) (www):
Law Blog Metrics (formerly 3L epiphany) has, I believe, the latest blog cite count in this post. The list is only through last summer; it needs an update.
3.19.2007 8:35am
Federal Dog:
I have never cited a law review article in any trial or appellate brief. Why blunt a sharp argument with badly-written, jargon-laden clutter?
3.19.2007 8:38am
rbj:
Hmm, lots of criticism of law review articles here. Now, professors have to publish in order to get tenure/promotion, so could it be that law reivew authors are writing for an audience of other law professors, and not to judges or practicing attorneys?
3.19.2007 9:14am
jp2 (mail):
FWIW, a state supreme court justice (and HLS grad) told me recently at a bar function that he felt the academy currently has little to say that is useful to judges.

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.
3.19.2007 10:06am
great unknown (mail):
rbj:
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.
3.19.2007 10:18am
ex-clerk:
Judge Kozinski had an interesting take on this a few years back.


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.
3.19.2007 11:06am
josh:
Professor Kerr:

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.]
3.19.2007 11:28am
Maran (mail):
One might also look at how the content of law reviews has changed. From my brief persual of the Harvard, Yale, and Columbia law reviews, it seems that fifty years ago or more, commercial law, contracts, and torts made up the bulk of the articles; constitutional law was relegated to a relatively minor role, and theory pieces were few and far between. Moreover, the professors who wrote the pieces really had a mastery of the doctrine. Today, however, law reviews are filed with articles that seem to have little relationship to the legal doctrine with which courts and practitioners work. This shift in content also tracks the decline of treatises and hornbooks. I think the situation is unlikely to change because law schools tend to self-replicate in hiring decisions and student-run law reviews are too ignorant to know if an article is important, duplicative, or out to lunch.
3.19.2007 11:42am
Jake (Guest):
I agree with the commentors who see a problem with the supply here rather than demand. Are professors (or law reviews) even trying to create pieces that are suitable for citation by courts? These are the last eleven articles published by the Harvard Law Review:

Controlling Shareholders and Corporate Governance: Complicating the Comparative Taxonomy

The Riddle of Hiram Revels

Separation of Parties, not Powers

The Generative Internet

Creating an American Property Law: Alienability and its Limits in American History

Legal Origins, Politics, and Modern Stock Markets

The Strategic Substitution Effect: Textual Plausability, Procedural Formality, and Judicial Review of Agency Statutory Interpretations

Precontractual Liability and Preliminary Agreements

The Divergence of Contract and Promise

Sosa, Customary International Law, and the Continuing Relevance of Erie

The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics

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?
3.19.2007 12:21pm
blackdoggerel (mail):
When I (a former law review editor at a top journal) was clerking at the federal appellate levels, I viewed briefs' citations to law review articles with great suspicion. It usually meant the author couldn't cite any actual cases, statutes, or regulations for the proposition he or she was trying to make, so resort to vague, theoretical arguments was necessary. Without any support in the case law, I wouldn't have placed any weight on a citation-less academic argument, so why should citation to a law review article advancing the same claim change matters?

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.
3.19.2007 12:40pm
blackdoggerel (mail):
Oh, one other reason why I viewed law review articles with skepticism. There are TOO MANY of them. Unless the article was published in one of maybe 4 or 5 journals, I would almost certainly give it extraordinarily little weight. Why would I place any emphasis on something that was published in just any journal, when anyone can get published if they submit to enough journals? Moreover, with all the journals out there, it's a fair chance that SOMEBODY published something espousing a different view. So why would I just assume that the one journal article being cited has all the answers and is the last word on the topic?

Anyone can write an article; not everyone can write an opinion.
3.19.2007 12:48pm
sksmith (mail):
"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."

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
3.19.2007 1:01pm
andy (mail) (www):
It is in fact depressing that the Harvard Law Review, etc. publish only a small number of articles that actually deal with the law. An article on "Transformative Politics" or the "Riddle of Hiram" may very well be good sociological pieces, but I don't see what they have to do with the law.

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.
3.19.2007 1:14pm
Billy Budd (mail):
"One might also look at how the content of law reviews has changed. From my brief persual of the Harvard, Yale, and Columbia law reviews, it seems that fifty years ago or more, commercial law, contracts, and torts made up the bulk of the articles; constitutional law was relegated to a relatively minor role, and theory pieces were few and far between. Moreover, the professors who wrote the pieces really had a mastery of the doctrine. Today, however, law reviews are filed with articles that seem to have little relationship to the legal doctrine with which courts and practitioners work. This shift in content also tracks the decline of treatises and hornbooks. I think the situation is unlikely to change because law schools tend to self-replicate in hiring decisions and student-run law reviews are too ignorant to know if an article is important, duplicative, or out to lunch."

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.)
3.19.2007 1:57pm
Justin (mail):
I think I made my point clear on this in a previous thread - I believe that law reviews, and particularly a law school's top "general law" journal, should focus on questions of legal import. There is certainly room for legal journals that focus on "multidisciplinary" (note that true multi-disciplinary work can indeed be a focused legal question belonging in the Harvard Law Review, but much multi-disciplinary work is simply amateur hour at non-lawyer stuff) work, or even on, say, the effect of law reviews - but that is the advantage of having specialty journals, and perhaps, in having "pocket parts" or "essays" and "comments."
3.19.2007 1:59pm
JimB (mail):
I always wondered at the importance given to tertiary authorities; the case law and statutes should lead one to the proper application of the 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.
3.19.2007 2:51pm
josh:
Prof Kerr

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.
3.19.2007 5:41pm
OrinKerr:
Josh,

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?
3.19.2007 10:06pm
doubting thomas (mail):
Billy Budd:

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.
3.19.2007 10:21pm
Randy R. (mail):
"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.
3.20.2007 1:35am
Justin (mail):
We're getting off topic here, but if we found contemporaneous notes by the founders that "cruel and unusual" would be interpreted by "standards of men in free societies of the time" or something like that, would people still be up in arms about Justice Kennedy pointing out (but not basing his decision solely on the fact) that the small list of countries who execute juveniles is a list that (other than ourselves) redefine the meaning of cruel and unusual?
3.20.2007 10:54am
josh:
Professor Kerr

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.
3.20.2007 2:18pm
Patrick Levine Rose (mail):
I think the Liptak article, though fascinating, seems to be based on asking the wrong question. Its unstated major premise seems to be that we should care that judges not citing law review articles since this means judges do not read them as much (i.e. since citing is the evidence they read them.) This seems false. Judges who read law review articles and who find them helpful to their thinking, and who even rely on them, are not likely to cite them. In my experience, as a clerk to a state supreme court justice (in Michigan) and a U.S. Court of Appeals judge in the Third Circuti, I did not find my boss citing law reviews and other members of those appellate courts did not cite them all that often either -- but we did consume them. Either they were cited to the Court, or they were found by the law clerks on their own. THey informed the analysis. What else should they do? Hence, the right question would be: are briefs citing law review articles to judges OR are judges in appeals courts or federal trial courts reading the law review articles since they find them some other way. If judges are reading them, or having their views digested by clerks, does that aid the judicial decision-making process. This question can only be answered by reviewing appellate briefs and talking to law clerks and talking to appellate judges. A survey (such as one recently conducted with Sixth Circuit U.S. Court of Appeals judges that was devised by various appellate lawyers, including Kathleen McCree Lewis, gives extensive data on judges' actual practices. THis is the ONLY way to get anything useful about what judges do with law reviews. Hence, Liptak's article seems to suffer the same flaws as law reviews -- namely, inadequate data, flawed analysis, asks the wrong questions, and has nothing useful to say about real world practices, etc.

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.)
3.21.2007 1:07pm