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?: