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Why We Should not Care that Judicial Citations of Law Journal Articles are Decreasing:

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.

Esquire:
"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."

I think there's a lot of room in between these: for example, trying to convince a judge that his own professed judicial philosophy would be better served/applied via a particular rationale to resolve a given issue.
3.20.2007 6:05pm
neurodoc:
Why We Should not Care that Judicial Citations of Law Journal Articles are Decreasing

Who said we ever did care?
3.20.2007 6:13pm
neurodoc:
Why We Should not Care that Judicial Citations of Law Journal Articles are Decreasing

Did I misunderstand, was the "we" meant to refer to Volokh Conspiracy bloggers and others who write law journal articles as opposed to the rest of us?
3.20.2007 6:17pm
Steve Lubet (mail):
Ilya writes:


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.


It would be helpful to know what you mean by "useful," given that apparently do not mean "useful to judges."

It would also be helpful to know what you mean by "add[ing] to our stock of knowledge about law and related issues." Who is the "we."

Knowledge may be pursued for its own sake, buy you make claims about utility. Yes, economics articles are rarely cited by judges, but investment banks, hedge funds, and government agencies all hire economists. What agencies or organizations hire interdisciplinary legal scholars (economists aside)?
3.20.2007 6:26pm
Ilya Somin:
Did I misunderstand, was the "we" meant to refer to Volokh Conspiracy bloggers and others who write law journal articles as opposed to the rest of us?

It is meant to include anyone who cares about the quality of legal scholarship.
3.20.2007 6:27pm
Ilya Somin:
Knowledge may be pursued for its own sake, buy you make claims about utility. Yes, economics articles are rarely cited by judges, but investment banks, hedge funds, and government agencies all hire economists. What agencies or organizations hire interdisciplinary legal scholars (economists aside)?

Interdisciplinary legal scholars are often hired by law firms, government agencies, and other organizations. Moreover, the knowledge they generate can be useful even if they are not hired by anyone other than academic institutions. It can contribute to our understanding of how law affects society, and how it changes over time. This kind of knowledge can be very useful to anyone who wants to evaluate existing law or develop reform proposals for new law.
3.20.2007 6:34pm
Steve Lubet (mail):

Interdisciplinary legal scholars are often hired by law firms, government agencies, and other organizations.


How about some examples? Not so long ago, I surveyed CLE courses nationwide. Rather unsurprisingly, there were almost no offerings based on interdisciplinary legal studies (again, other than economics and a couple of courses on logic). If lawyers thought that interdisciplinary stuff was valuable, they'd be paying for it. But they don't.

I say this, btw, as a historian. I am not opposed to interdisciplinary studies, I just think that we shouldn't make implausible claims to utility.

Let's face it, doctrinal scholarship is useful, even though it is devalued in the academic community.
3.20.2007 6:47pm
andy (mail) (www):

"since there are many aspects of law that can't be understood simply by reading and analyzing precedent in the traditional way. "


Yeah, one really can't understand ERISA or the Bankruptcy Code until he realizes that "all law is politics" or "judges decide cases based on what they eat for breakfast."

that citations are not found in judicial opinion might not itself mean much, but it does provide some proxy for what judges (and likely the lawyers in front of those judges) find useful. note that today's SCOTUS opinion cites a bankruptcy treatise 2 or 3 times, I believe; the article arguing that the Bankruptcy Code disenfranchises minorities and women apparently did not make the cut.

more generally, though, that law reviews aren't cited in opinions is not a problem, but merely a symptom. the problem is adequately described in the story told to judge edwards by one "elite" law school dean:


[T]he problem began in the late '60s when an increasing number of individuals who aspired to become history professors or economics professors or philosophy professors or political science professors or literature professors discovered that there were few, if any, opportunities in those fields. After spending several years doing graduate work, they finally faced reality and attended law school.

Most of these individuals had no real interest in law or in becoming a lawyer, but many were excellent students. As a result, they were hired by law faculties in increasing numbers. After obtaining tenure, many of them began moving back towards their real academic interests--philosophy, political science, economics, history, literature, etc. This led to an explosion of interdisciplinary work in law, as well as to an increasing rejection of the importance of doctrinal analysis even in mainstream courses.


I think the problem is not so much that many law professors write useless scholarship -- certainly they are not hurting anyone by doing so -- but rather the fact that they may hold traditional scholarship (or the legal system itself) in contempt. This, I think, has a palpable, negative effect on a student's education. After my first year in law school, I *actually* thought the way that one should go about interpreting a statute is to choose which interpretation yielded the best "ex ante" incentive. I really, honest to god thought that that was the case. It took me a couple of years to un-learn the l&e approach that had been inculcated upon me (although, to be fair, seeing that I was an economics major as an undergraduate, I was probably more receptive to most in accepting that approach).

in any event, again, the problem is not the uselessness of the scholarship, but instead that doctrine becomes secondary in even doctrinal courses and that doctrinal courses are becoming secondary to "law and..." courses. That, I think, is something to worry about, even if the lack of citations in judicial opinions is not.
3.20.2007 7:20pm
John Q (mail):
You're merely offering alternative hypotheses for the implications of the citation-decline of law review articles.

I don't really buy any of them.

If law review articles were nonetheless actually changing our view of the law, and how it functions, why wouldn't they be cited in opinions? Wouldn't it be useful for a judge deciding a hard case (in Hart's sense) to have such articles on hand? Or for any judge who wishes to invoke policy grounds?

I haven't read the other posts on this matter, but with that caveat, wouldn't modern search engines be likely to increase the odds that law reviews would be cited? Modern search engines make law reviews articles more accessible; and therefore make it EASIER for a conservative judiciary to find the lonely article or two, way out in the wastelands of Westlaw, supporting their position.

Finally, the matter of whether legal scholarship should influence the law: Should medical scholarship influence medicine? Sociological or political science scholarship influence policy? Art (of all sorts) scholarship influence artists? They all do of course.

If legal scholarship is influencing the very practice it is investigating less and less, then I think that does not bode well for legal scholarship.

The argument that legal scholarship remains useful because it impacts future judges in their formative years is specious, because presumably those judges should still be able to cite a law review article or two supporting the policies partly underlying their decision, and presumably would WANT to do so---rather than merely offering "policy hypotheses," or "self speculation," instead. Further, re "formative years:" clerking, if law reviews articles are cited less and less, would result in less exposure to legal scholarship; and one's exposure to it at law school is shallow at best, outside the rare seminar or two that actually functions in manner similar to classes in other graduate programs or the handful of research papers/notes one writes.

My suggestion is for Westlaw and Lexis to begin building databases of journal articles from other disciplines, including medicine, economics, political science, etc to become one-stop shopping centers for research on law and policy. Perhaps this will not only improve the quality and relevance of legal scholarship, but move it into a more influential position vis-a-vis the practitioners and creators of law.

Also, and no disrepect intended to law professors, actually having a PhD program for law (with heavy doses of sociology, political science, and psychology) that would be required before becoming a professor, and publishing, might enhance the value of legal scholarship as well.

Long post. Apologies. But it's easy to skip. Much like...
3.20.2007 8:23pm
James Grimmelmann (mail) (www):
I sincerely doubt that most judges' decisions are driven by their "strong ideological commitments and judicial philosophies" in more than a small fraction of the cases before them. Most generalist judges are nonexperts in the vast majority of the fields in which they will be asked to render judgment. Scholarship can supply them with useful structure and understanding that the parties in the case itself will be too biased or incompetent to provide. If the legal academy wholly abandons that role, no one will benefit.
3.20.2007 9:28pm
Ilya Somin:
If law review articles were nonetheless actually changing our view of the law, and how it functions, why wouldn't they be cited in opinions? Wouldn't it be useful for a judge deciding a hard case (in Hart's sense) to have such articles on hand? Or for any judge who wishes to invoke policy grounds?

Only if they were influencing him by directly affecting his reasoning on the opinion. If the real pathway of influence was, for example, by influencing the general deelopment of ideas in the legal culture years before the case ever arose, the judge would be influenced by the scholarship, but would be unlikely to cite it.


Finally, the matter of whether legal scholarship should influence the law: Should medical scholarship influence medicine? Sociological or political science scholarship influence policy? Art (of all sorts) scholarship influence artists? They all do of course.

Maybe it should influence the law, but as the post argues, influence is not well measured by citation. Political science scholarship may influence policy, but not by being cited in the writings of policy makers.
3.21.2007 1:38am
Ilya Somin:
I sincerely doubt that most judges' decisions are driven by their "strong ideological commitments and judicial philosophies" in more than a small fraction of the cases before them.Most generalist judges are nonexperts in the vast majority of the fields in which they will be asked to render judgment.

Yes, but in cases where there is no controversial ideological or judicial philosophical component, there is also unlikely to be an issue that scholarship can shed light on. Most such noncontroversial cases are pretty clear winners for one side or the other. The few that are not generally turn on close calls about the facts of the case rather than on general legal rules. Obviously, legal scholarship is unlikely to be able to say anything useful about the exact facts of a particular case.
3.21.2007 1:40am
neurodoc:
Who said we ever did care?

Did I misunderstand, was the "we" meant to refer to Volokh Conspiracy bloggers and others who write law journal articles as opposed to the rest of us?


Ilya Somin, that was meant as a joke of the Lone Ranger (LR) and Tonto (T) sort. [The LR and his trust companion T are surrounded by hostile indians who are closing in on them. It doesn't look good for the masked man and his faithful indian companion of many years. LR turns to T and says, "If we are to get out alive, we will have to shoot our way out." T says to LR, "Whadya mean 'we,' white man."] Here the LR would be the law professor types who write law journal articles because they must "publish or perish," and they get more for their efforts if judges cited them; the T would be the rest of us who face no such imperative.

I'm all for quality in everything, including legal scholarship. And I think it best if law professors occupy themselves with scholarship and stay out of trouble when they are not preparing students for what comes after law school.

(I first heard the LR-T joke >40 years ago and hope it has not become unfashionable to tell since.)
3.21.2007 1:43am
Randy R. (mail):
There are many good law profs who really know what they are talking about and have real world experience in their subject matter. Those should be writting law reviews to correct bad law, to guide the courts to the best outcomes for the greater good, to simplify legal matters where possible and so on.

Then there are the run of the mill law profs. These are the yahoos who graduate from some top law school, all pumped up with notions that they are the 'best and the brightest.' They go on to clerk for a judge for like, a whole year! Maybe even two! Or they might work at a large law firm where they act as a glorified paralegal for a few years. Then they enter academia, and in order to get the cherished tenure, they have to do the publish or perish route.

These yahoos, in my opinion, are the ones that clog our law reviews. They really don't know anything about anything, except they have their heads filled with lots of theory. Well, whoop-de-do -- I can be a pinhead legal scholar too . I just have to read enough books to say what books say, and what books should say.

Maybe there oughta be a law you have to work as a real attorney for ten years before you can even think of joining academia.
3.21.2007 3:26am
A.C.:
Out of curiosity how is "interdisciplinary" defined in the legal academy? I can think of lots of possibilities. For example:

- The law that applies to a particular area, especially one that is normally occupied by another profession;
- The influence of another academic discipline on something that is important to lawyers;
- The simultaneous use of legal arguments and arguments drawn from another field to support a proposition.

You can see the first two in the general area of Law and Religion. There's plenty of case law related to religious institutions and practices, and these can be dealt with the same way as case law in other areas of law. But there's also the religious influence on law itself, for example canon law.

The last one seems to be pretty common in environmental and administrative law. Getting the "right" answer frequently depends on understanding the science involved, so interdisciplinary approaches strike me as essential. (This means learning science, of course, and sometimes even math!)
3.21.2007 9:45am
mj296 (mail):
I fear that many here are missing the full extent of the discussion that occurred at Cardozo on this topic. The point wasn't really that law review articles are being cited less frequently; the point was that neither judges nor their clerks (nor practitioners, for that matter) are even reading law review articles any longer.

Legal academics often postulate some larger, long-term benefit to "the general development of ideas in the legal culture," but if only law professors are reading law review articles, it is hard to discern how this influence would arise.

Face it: articles like "The Hegelian Dialectic and the Statute of Limitations" are self-indulgent drivel. Kudos to the author who managed to get a well-paid job writing such drivel, but it is self-indulgent drivel nonetheless. The sad truth is that most "law and ____" scholarship is poor at the law and poor at the ____.
3.21.2007 9:49am
andy (mail) (www):

Yes, but in cases where there is no controversial ideological or judicial philosophical component, there is also unlikely to be an issue that scholarship can shed light on.


With all due respect, that is completely absurd and baseless. I don't think most judges look to the tax treatment of foreign currency branch transactions or reverse partnership allocations with an "ideological" bent, but scholarship on those topics is badly needed, as well as for every *complex* area of law. How can one actually think that it is only "ideologically driven" areas of the law that require scholarship?

Yes, it may be true that there is not much intellectually demanding behind the concept of "substantive due process," and maybe "international law" is for intellectual lightweights, and so perhaps all there is to talk about regarding those topics is ideology, but most of the law is embodied in statutes and agency regulations. These can be very difficult to parse -- how can you possibly dismiss their existence? I don't know that many of us can work through ERISA, the tax Code, the bankruptcy code, environmental statutes, the UCC, without some help, and I don't think that judges often examine these areas of the law with an ideological bent (does one *really* care that much about the politics behind the discharge of unsecured claims after the filing of a petition for bankruptcy??).

Maybe we need to start requiring all law students to take some hard courses, or at the very least, require law professors to.
3.21.2007 1:50pm
Loreg:
Isn't it entirely possible that there is no decline in law review citation? The study in question looked at only the top 5 journals. Their citation numbers went down. In the same period, the number of journals went up, right?

No one would conclude that people are watching less TV because fewer people are watching the Big Three networks, would they? A better conclusion from this study is that the Top Five Legal Journals are less influential. This doesn't mean, necessarily, that legal journals in general aren't also less influential, but it also doesn't prove the point.
3.21.2007 2:59pm