How Often Should Judges Cite Law Review Articles?:
In the New York Times
, Adam Liptak has a very interesting article
on the apparent decline in citations to law review articles in judicial opinions over the law few decades. You should read the whole thing, but here's an excerpt:
Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them.
The upshot is that the legal academy has become much less influential. In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.
Patterns at other leading law reviews are similar. And the drop in the number of citations understates the phenomenon, as the courts' caseload has exploded in the meantime. . . . "The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable," Professor Dorf said.
There are other reasons for the diminished influence of law reviews. One is the emergence of electronic databases.
"Before search engines," said Marci A. Hamilton, a law professor at Cardozo, "if you wanted to figure out what all the cases on a given topic said, you went to a law review." Now you punch some words into Lexis or Westlaw. . . . .
"If the academy does want to change the world," Judge Reena Raggi said, "it does need to be part of the world."
To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs.
There's a lot here, but let me offer two quick thoughts. First, I do think the existence of online databases has caused a great deal of the shift in citation practices. It's now much easier to find the law, as Marci Hamilton suggests. Further, many more people have ready access to all of the original sources. Do you need to find an 1850's decision in the New Hampshire reports? An entry in the Federal Register from 1979? No problem, it's all on Westlaw. As a result, it's much more helpful for judges to cite authorities directly rather than law review articles that discuss them.
Second, it's impossible to say whether it's good or bad that judges are citing articles less often without knowing what articles are being cited (or not) and why. If judges are now less inclined to engage with thoughtful scholarship that deals seriously with legal sources, then that's a shame. On the other hand, very few law review articles fit this bill. I only read a very tiny fraction of the published legal scholarship, but my sense is that a lot of law review scholarship is not terribly serious about engaging with the law. If judges aren't paying any attention to such scholarship, then good for them: they know enough not to be fooled by fancy academic pedigrees and prestigious journals. Silliness in the Harvard Law Review
is still silliness, and it's a good thing if judges recognize that.
Anyway, that's my preliminary take. There's a lot here, so I look forward to reading the comment thread. (Thanks to How Appealing
for the link, and to Adam for the shout-out — just as good as a judicial citation in my book.)
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.
How Much Should Legal Scholarship Aspire To Being Cited by Judges?
I love getting cited by judges, and I write most of my articles aiming to be at least potentially useful to judges. But I'd be hesitant to insist that all or even most of my colleagues should take the same view. While legal scholarship should be as clear, as thoughtful, and as useful as possible for its theme, there are many themes that are eminently legitimate despite being not helpful for the decision of actual cases.
Consider one example: legal history. Some legal history may be relevant to legal decisions (for instance, when it elucidates the original meaning of some text, and when the original meaning is relevant to some case). But some may not be, for instance because it deals with history that's too old (for instance, the evolution of English property law), history that's no longer legally relevant (for instance, how law dealt with women's rights in the 19th century), or even constitutional topics where courts don't much focus on original meaning (for instance, courts very rarely look to the original meaning of the Free Speech Clause, probably because so much fairly well-settled precedent has arisen since then that even judges who are sympathetic with originalism tend to be reluctant to return to first principles).
Should we reject, or even deprecate, legal history because it's not relevant enough to courts? Aren't there other ways history can be useful -- even if those are just a better understanding of what happened in the past, how our legal system came to be as it is, and what we might want to avoid in the future (even if it's not up to courts to avoid it)? I suppose one could argue that legal history is a legitimate field, but that it should be published only in history journals, not in law reviews. But why would one want to take that view?
Or consider another example: articles that are aimed at suggesting legislative or regulatory changes. Perfectly legitimate, it seems to me, despite not being aimed at judges. Some of those articles may mix in other disciplines, such as economics. Some may mostly use traditional legal reasoning, which is a mix of moral judgment, intuitive empirical predictions, and analysis of past precedent without much deference to that precedent. But in any event, they are perfectly legitimate attempts at law reform -- just not law reform that you expect the judiciary to accomplish.
Finally, and here I realize I'm moving to more controversial ground, there are articles that are aimed at promoting an academic conversation about why the law is the way it is, what the law should be (even if the changes of legislative or judicial revision to make it that way are slim), how judges and lawyers think about the law, how law is taught, and more. These may be "theoretical," but why shouldn't people who think about law be as free to theorize in ways that they think can help others think about law, just as historians, anthropologists, linguists, and others are free to do so? Why should there be a demand that law be a purely practical discipline, either in the sense of always having an immediate payoff in court decisions or in the sense of always focusing on uncovering specific facts rather than setting up theoretical frameworks that help us understand the facts?
No-one demands that paleontology, theoretical mathematics, or history be immediately relevant. Sometimes even theoretical work in those disciplines has surprising applications (as is the case in law as well), and that's great; but developing new knowledge and ideas for understanding knowledge is, I think, a worthy goal of the academy even if few practical benefits emerge from this.
This having been said, I should acknowledge what should be obvious: We surely ought to criticize legal scholarship that is badly reasoned, badly written, or even not as useful as it could be with some simple changes (e.g., an article that doesn't live up to its potential because it fails to make clear some important implications). We certainly can aspire to practical relevance as well as theoretical interest in our own work, as I generally do. And funders of academic pursuits can consider the practical relevance of an academic field's output, as an aspect of that field's social utility, in deciding how much they should fund that field (though it's not clear to me that citation by courts is the proper metric of social utility).
But we shouldn't, it seems to me, insist that all or even most legal scholarship be aimed at judges, or see certain genres' lack of desire to influence judges as a sign of those genres' inherent flaws. (Oddly, lack of ability to influence judges given the desire to do so may be a sign of a flaw, if the lack of ability stems from the scholars' failure to make their articles as useful as possible given the articles' themes -- though it may also be evidence that the authors are trying a more ambitious form of law reform than judges are prepared to accept, a goal that is not itself unworthy.)
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.