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.
Related Posts (on one page):
- Why We Should not Care that Judicial Citations of Law Journal Articles are Decreasing:
- How Much Should Legal Scholarship Aspire To Being Cited by Judges?
- Two more thoughts on the decline of law review citation:
- How Often Should Judges Cite Law Review Articles?:
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?
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....
Just under 500.
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.
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.