Why Are Judges Citing Fewer Law Review Articles?
posted by Daniel Solove
Over at the Volokh Conspiracy, Orin Kerr mulls the question of why judges are citing fewer law review articles these days than in the past. He refers to an article in the New York Times about the topic:
[T]he 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.
Orin explains the phenomenon as the result of the fact that “a lot of law review scholarship is not terribly serious about engaging with the law.”
Other explanations commonly uttered: (1) law review articles are long and hard to read; (2) law review articles contain too much theory; and (3) law professors aren’t interested in issues of legal practice.
I don’t agree with any of these reasons. It is true that many law review articles are not written for judges or practicing lawyers. They are written for other academics. Or policymakers. Law review articles are written for many different audiences these days. But quite a few still have relevance for the practitioner.
I get rather annoyed at rather dismissive claims that law review articles are all useless or that the academy has abandoned caring about the practice of law. Such views often rest on the assumption that only doctrinal treatise-like articles are helpful for the practice of law. This is not necessarily the case — good theoretical and normative articles really can make a big difference if engaged with. Historically, many of the greatest jurists and lawyers were also among the most widely read; they read philosophy, literature, and a wide array of scholarship in the humanities. Today, it seems, the view is that law review articles are worthwhile if they will help in the resolution of a case. But articles might be worth reading just for general educational purposes. The articles of the legal realists, for example, helped change the way the law is conceived and practiced, yet these were meta articles about the law, not ones that would assist in any one particular case.
This isn’t the primary reason, though, why judges and lawyers don’t read as many law review articles today. So what’s my hypothesis? Why aren’t law review articles on the reading lists of many judges and lawyers?
The reason is practical — the good relevant articles are just too hard to find.
This is ironic given that all law review articles are available at everyone’s fingertips in the Westlaw and Lexis databases. But in the past, there were hardly as many law reviews and hardly as many law review articles. I don’t have stats to back me up, but I’m almost certain this is true. Only a small subset of law professors published articles with any regularity. Today, there are hundreds of law reviews, and they are all readily available. There are zillions of law review articles, as a much wider percentage of professors in the academy are writing.
The reality is that most law review articles aren’t all that great. This is to be expected. In nearly any field, much of what is written isn’t all that great. We’d be lucky if 10% is really good. Up the production level, and you get a lot more mediocre and bad work, and only a little more good work. What’s happening, in other words, is that the worthwhile articles are becoming needles in an ever-growing haystack.
Combine this with the fact that many articles are not written with a practitioner or judicial audience in mind, and the percentage of good articles that are relevant is very low. It’s just not efficient for the judge or practitioner to read articles. Good articles that are of use to judges and practitioners are still out there — it’s just increasingly harder for them to find these articles.
One possible solution: The academy needs a system where it recommends the cream of the crop. We should give judges and practitioners in our fields a list of some of the articles most worth reading. We should explain why they’re worth reading. Perhaps if we do a better job separating the needles from the haystack, judges and practitioners will once again start paying more attention to law review articles.
UPDATE: Eugene Volokh has some very thoughtful commentary over at the Volokh Conspiracy:
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. . . .
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)? . . . .
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. . . .
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? . . . .
[W]e 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.
I don’t agree with Eugene on many issues, but I agree completely with his post.
March 19, 2007 at 1:58 am
Posted in: Law Practice, Law School (Scholarship)
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Responses (15)
Rick Swedloff - March 19, 2007 at 8:44 am
The article itself contains another explanation: the workload of the judges. It is possible that in years past more judges read through law reviews as they would newspapers and magazines. They stayed up on the current legal theories as they would current legal events. Given their workload, and as you suggest a proliferation of journals, they may not have the time to do so any longer. If judges read journals more frequently, they may know some of what they would want to cite without having to look for it on a case-by-case basis.
Just a theory…
anonymous - March 19, 2007 at 8:45 am
“The academy needs a system where it recommends the cream of the crop.” In other fields, that system is called “peer-reviewed journals.” The editors of those journals are typically accomplished academics whose decision to accept an article in the journal is a form of certification that the article is worth reading. The underlying problem here is that student law review editors lack the perspective to identify articles worth reading.
RW - March 19, 2007 at 9:52 am
Huh. It sounds like you do agree with the proposed reasons, and just restated them.
Also, 08:45, I don’t think anyone has ever seriously suggested that student-run journals publish the highest-quality scholarship. The problem is that law professors have so little incentive to shift to peer review- they’d have to shoulder the burden and, what’s worse, they couldn’t inundate the student law review editors with their dreck.
Solove/Kerr basically got it right, though both tried putting it more diplomatically: most law review articles are worthless. Student editors can’t be blamed for sifting through the crap and picking the crap authored by the most prestigious name.
Anonymous OSU Grad - March 19, 2007 at 10:00 am
Having recently (and thankfully) escaped the law review world, I must disagree with the argument that there is simply too much noise for anybody to find the good articles. First, as a previous poster noted, law journals are not peer reviewed. Articles are selected by the third-year students who, despite three years of training, still know little about the law. These students are easily impressed by star-power names and trip over themselves to publish the same people.
The authors frequently sought after are those who have perfected the game; people who have the budget to appear at every conference and shamelessly re-print the same article with minor tweaks to the hyper-coloned title, while citing primarily to their own work, creating a weak chain of authority, with the ultimate link being the author’s own initial, generally unfounded conclusions.
The academy itself looks down on what are called “practitioner pieces,” that is to say, journal articles that might actually be useful. Rather, the most desirable articles are those that expose new “paradigms”.
If you doubt this, attend a symposium at any major law school. But take the sick bag from the seat pocket in front of you when you leave the plane, because you are about to be exposed to a sickening display of inbred sycophancy, self-congratulatory back patting, and mind-numbing double speak.
The goal of the legal academe today is to detach itself to the greatest extent possible from the legal profession. Which is why law schools now seek out PhDs rather than JDs and create public policy programs rather than practicums. The argument that the bench has turned its back on the academe relies on a misunderstanding as to the direction of causality.
anon - March 19, 2007 at 10:23 am
haven’t read the NYT article, but another reason is probably that there are so many more case opinions out there. They’re more authoritative than law review articles, and sometimes it seems you can find a case to support almost any proposition.
When you can’t find one, you might look to a law review.
Daniel J. Solove - March 19, 2007 at 10:40 am
Anonymous — Despite the oft-stated sentiment that peer reviewed journals are the solution, in my experience, I haven’t found articles in peer reviewed journals to be significantly better than those in regular law reviews.
There’s also the common belief that dozens of years ago, law review articles were better and more practice-oriented. There was, for sure, more practice-oriented scholarship (treatises, etc.) and probably a few more practice-oriented pieces. But I’ve read many older law review articles. They are often shorter than those of today, but I haven’t otherwise noticed a dramatic difference. Many are still quite theoretical. Many aren’t very good either.
The biggest change with law review articles from the mid-twentieth century to today, in my opinion, is that there are just more of them.
Steve - March 19, 2007 at 11:17 am
I think the issue with peer review is that the few law journals that use it are specialty journals, which limits the number of submissions.
David - March 19, 2007 at 11:17 am
I see three basic problems with many law review articles: 1) they’re larded up with too many extraneous footnotes, in an attempt to pay obiesance to other scholars; 2) they rely on too much jargon that doesn’t translate to the harried judge; and 3) they don’t bother to cite judicial opinions.
As to the last point — influence works both ways. If scholars want to be heard by judges, they also need to listen.
Steve - March 19, 2007 at 3:12 pm
Does anyone else feel that citing cases in law reviews would be so much easier if we had better tools than lexus or westlaw to find pertinent cases? Compared to other areas of academia, these services leave much to be desired.
David - March 19, 2007 at 4:00 pm
Perhaps another problem is the dominance of law and economics in the current scholarship, and its tendency to rely on crude assumptions, inaccurate psychological models, and “just so” story-telling. As Barbara Bergmann suggests for economics, perhaps legal scholarship could benefit from a “new empiricism.”
http://www.bepress.com/cgi/viewcontent.cgi?article=1228&context=ev
Mike O'Shea - March 19, 2007 at 5:00 pm
Perhaps article titles these days also make courts reluctant to cite them.
Ever since the Crits blew the doors open in the 1970s and 80s, legal academics and student note writers have freighted hundreds, if not thousands, of otherwise solid articles with chatty, juvenile, punny, jargony, ridiculously argumentative, or otherwise awkward titles.
This isn’t entirely a bad thing. No doubt many in the academic audience enjoy the fun. But I suspect that an undignified title often convinces a wavering judge (or law clerks) not to cite an article in a published judicial opinion — even if the judge/clerks profited greatly from reading the article (as is often the case).
Bruce Boyden - March 19, 2007 at 5:42 pm
Here’s a comment on the state of law reviews, from someone thoroughly disgusted with them:
“There are two things wrong with almost all legal writing. One is its style. The other is its content.”
Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38, 38 (1936). If law review articles are generally of poor quality, it doesn’t appear to be a new problem.
Lorna Filler - March 20, 2007 at 8:57 pm
Anyone can do a case crunch. And many do such crunchers. They are called treatises and student notes.
Bit surprised that the judges came out so vehemently against the law reviews. Many clerks used to use regular good ole articles, treatises, student notes, etc, at least as a starting point to locate cases.
Um, perhaps the judges are a bit disconnected from the research?
Deven Desai - March 21, 2007 at 8:32 pm
I thought I had read that blogs may also be filling whatever possible gap is present. In other words the theory and other work to which Volokh refers is valuable but maybe not, as he indicates, be aimed at judges. In addition, it seems that law professors now use blogs and the Web to offer quick arguments regarding cases and in a way separate their academic writing from pieces that may have more readily apparent practical applications. This idea has been offered in a few places.
http://3lepiphany.typepad.com/3l_epiphany/2006/10/blogging_as_sch.html
and
Online Legal Scholarship: The Medium and the Message http://thepocketpart.org/2006/09/06/balkin.html
In short, it could be that the material written by law professors and most useful to judges and practioners is just in a different place than it has been in the past.
Kaimi - March 22, 2007 at 1:34 am
Mike O’Shea,
Law articles have titles that would make them unlikely candidates for citation?
Why, I have no idea what the “fuck” you could be talking about.
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