This New York Times article by Adam Liptak has kicked of a major debate about the extent to which we should be concerned that judidical opinions are citing law journal articles far less often than 20-30 years ago. My fellow conspirators have already gotten in their licks (see posts linked below). My view is that this is not a problem, for three interrelated reasons.
First, the goal of legal scholarship is not to be cited in judicial opinions, but to add to our stock of knowledge about law and related issues. There are numerous ways in which scholarship can fulfill that function without at the same time being useful to judges looking for material to cite in their opinions. Scholarship in economics is not devalued merely because it is rarely cited by corporate boards justifying their business decisions or by the Secretary of the Treasury in justifying his policy decisions.
Second, as Dale Carpenter and Eugene Volokh point out in their posts, there are many reasons for the reduction in citation that have nothing to do with the quality of the scholarship. Among them are the rise of modern search engines, the increasing ideological gap between a generally left-wing professoriate and a more conservative judiciary. To these, I would add the rise of nondoctrinal scholarship, and the use of methodologies from other disciplines, such as economics and political science. Nondoctrinal scholarship is a generally positive development, since there are many aspects of law that can't be understood simply by reading and analyzing precedent in the traditional way. So too is the use of interdisciplinary methodology, which has added enormously to our knowledge over the last several decades. However, both nondoctrinal scholarship and interdisciplinary scholarship are more difficult for judges to understand and less likely to be immediately relevant to deciding a case than old-style doctrinal analysis. That doesn't mean, however, that the overall social utility of these types of scholarship is less than that of old-style doctrinal argument. Indeed, the new scholarship is in many ways more useful than the old because it provides far more in the way of unique insights that can't just as easily be produced by nonacademics.
Finally, the emphasis on judicial citation is misplaced even if we assume that the main goal of scholarship is to influence the development of the law. By the time people get appointed to the federal bench, they generally have strong ideological commitments and judicial philosophies that are unlikely to change merely because they read a law journal article defending the opposite view. Most citations of law journal articles in judicial opinions do not determine the outcome of the case, but merely provide support for conclusions that the judges want to reach anyway. The way for scholarship to genuinely influence legal trends is not to get cited by judges, but to influence the general stock of ideas available to future judges (and policymakers) in their formative years, before their views become fully developed. And that is precisely what the most effective policy-relevant scholarship does. For example, academic articles on antitrust law rarely get cited in judicial opinions, but the scholarly application of economic analysis to this field has nonetheless revolutionized it by influencing the beliefs of today's policymakers and judges back when they were at earlier stages of their careers. The same is true in most other cases where scholarship has genuinely changed the content of the law, as opposed to merely the content of judges' footnotes.
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?: