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Two more thoughts on the decline of law review citation:

There are two additional factors that might be at work in the decline of federal court citation of law review articles noted in Orin's post earlier today and in the fine article by Adam Liptak in this morning's New York Times.

First, it seems that the ideological and methodological gap between the federal courts and legal academia is larger now than it was in the 1970s and before. Starting in the 1980s, with Reagan appointments, the federal bench has become more conservative in ideology, methodology, and in substantive outcomes. Even with a noticeable surge in libertarians and conservatives among academics and a corresponding rise in their scholarly output in the last two decades, law school faculties and law review scholarship remain overwhelmingly liberal and radical. Judges most often cite law review sources they agree with in order to draw support; less often do they cite law review sources they disagree with in order to refute them.

Second, at least since the failed Bork nomination in 1987, it seems that fewer and fewer legal academics are getting appointed to the federal bench. This may be because legal academics have a long paper trail espousing ideas that may offend one or another constituency to whom Senators are beholden. With fewer legal academics and more practitioners on the bench, it shouldn't be especially surprising that citation to academic journals would decline.

Finally, I can't help highlighting this observation in Liptak's article: "On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen." This is a writer of great discernment.

Dave Hardy (mail) (www):
Perhaps a related issue: I find it interesting, if you compare a modern decision with one of, oh, 1965, and still more so, 1945....the modern decision is loaded with caselaw, including citations for the obvious. A District Court cannot decide a motion for summary judgment without 2-5 printed pages of the standard for granting such, even tho we all know that standard by memory. Instead of a few pages enumerating why plaintiff has standing, we have 10-15 reviewing Supreme Court and Circuit cases on the same, before getting to the key facts.
In part it is probably stylistic, but in part it may reflect that fact that there is a LOT more caselaw out there to draw upon. F.3d, which didn't exist when I started practice, is now at, what, 800 volumes? Might it be that the volume of caselaw has supplanted law reviews here?
3.19.2007 12:24pm
AntonK (mail):
You'd hardly have to be a "Conservative" to find many law review articles a joke.

Recently, I've run across articles on Gay, Lesbian, Bi-Sexual, Trangender, and Questioning individuals and the law, as well as a real stunner on Katrina which could've just as easily been written by Al Sharpton and Charles Rangel.

Geez....
3.19.2007 12:35pm
anonVCfan:
"F.3d, which didn't exist when I started practice, is now at, what, 800 volumes?"

Just under 500.
3.19.2007 12:56pm
Colin (mail):
Given the ongoing controversies about gender/sexual identity and the law -- gay marriage, DADT, discrimination suits, etc. -- what's wrong with the first article you cited? Seems like a burgeoning area of the law that could use, e.g., articles collecting and dissecting relevant cases.
3.19.2007 12:56pm
Ronald D. Coleman (mail) (www):
I am sure the issue is less the first than the second point you've made, Dale. Very few of today's appointees to the federal bench are scholars and indeed increasingly few of them are even scholarly.
3.19.2007 1:00pm
Associate Editor:
I am an associate editor of a law journal (not Harvard, but one of the top ten). Honestly, this is rather good news. Most of our articles don't deserve to be cited, and we have the luxury to choose from the alleged cream of the crop. Law reviews are little more than free labor to help law schools make tenure decisions, outlets for the sophistry of professors, and resume builders for students near the top of their class who are willing to do mindless busy work for hundreds of hours in exchange for one line on their C.V.. [As noted, I'm one of those students. It really is a good resume line.].

I tried comforting myself, by assuming it was only my law review that published work that had nothing to do with anything, for some reason. Alas, that's not the case: I've read at least a few articles from every top journal in the course of cite-checking, and they're all like this.

I did happen to need a 1975-ish law journal the other day, and as I was flipping through it, I was amazed at how relevant the articles were. One, for instance, dealt with the then-contentious issue of just how much due process DUI suspects were entitled to, and whether it was problematic that the average suspect is in no shape to understand his constitutional rights, and was also generally not allowed to make a phone call to reach counsel. I hope we can get back to publishing that kind of article.

There are, of course, a few gems sprinkled throughout our issues. But they're depressingly rare.
3.19.2007 1:07pm
Ronald D. Coleman (mail) (www):
Associate Editor, maybe the problem is that there are so many journals now, too. And so many faculty members publishing. It's like expansion in baseball.
3.19.2007 4:47pm
Dave Hardy (mail) (www):
You aren't kidding it's expansion.

When I last published in 1985:

You mailed hard copy, triple spaced, to the review you chose.
After a month, or two or three, they got back to you.
If one accepted, you'd better be grateful. They'd edit the holy living hell out of it, and expect you to take it. They have the press, you don't. I sent out an article with just over 400 fn, and by the time it was in print it had 519, almost all added because the editors wanted more and more fns.

When I submitted an ms recently:

I did it electronically, and got an acceptance within about ten days.
They edited it rather modestly, and said that their changes should be regarded as suggestions.
3.19.2007 6:22pm
Ronald D. Coleman (mail) (www):
They're grateful you didn't just break your thoughts up into six blog posts and say hell with it!
3.19.2007 8:03pm
Cornellian (mail):
Most people with law review experience that I've spoken to have a pretty low opinion of the quality of the articles that were submitted for publication. There are a few genuinely good articles and a ton of junk by professors who don't really have anything to say, but they publish the junk because they have to fill up the pages with something and there aren't enough of the good articles to go around.
3.20.2007 5:01am