The Most Academic Court
posted by Dave Hoffman
Last weekend, I attended Wake Forest Law Review’s 20th Annual Symposium on Business Law. The topic was “The Duties of the Modern Corporate Executive,” and in a few weeks, I’ll no doubt shamelessly promote the symposium essay on self-handicapping and managers’ care that I presented. I’ll also be highlighting others’ contributions as well, especially former Conglomerate blogger Joan Heminway (Tennessee Law), who wrote about the disclosure duties of officers dealing with personal problems, a topic I once briefly mentioned here.
But enough pre-puffing. The topic of this post concerns the participation at the symposium by Delaware Supreme Court Justice Randy Holland and Vice Chancellor Stephen Lamb (New Castle County Court of Chancery). Both jurists offered terrific substantive content (Justice Holland summarizing the conference’s themes, and V.C. Lamb on DE’s perspective on managers’ duty of care and loyalty). Listening to them, I was struck at the counterexample offered by Delaware judges to the divide between academics and judges that was the topic of the blogosphere a few weeks back. At the time, it struck me that Liptak’s story was (at best) over-hyped: citation by judges in published opinions of law reviews is a really bad metric for law review influence. Opinions are a biased sample. Even were they not, judges may be avoiding citation of articles they read to protect themselves from charges of activism. Even were they not, the residual of the trend is almost certainly due to harried clerks writing opinions instead of judges.
But whatever we might make of these claims and counterclaims, I think that we’d see a different result in Delaware. The state’s judges are increasingly engaging with the academy, they often claim that they followlaw review debates, and important DE decisions cite multiple articles. At 2007’s AALS, Justice Jacobs clearly explained how and why the Delaware Supreme Court reached the result it did in Disney, and how that result reflected/pushed back against/engaged with academic literature on good faith. It is almost impossible to imagine such frank talk from a federal jurist.
So, I decided to run a quick WL search in the Delaware database, to see if I could find support for the Liptak “declining trend” hypothesis, or my “engagement” hypothesis. Predictably with such noisy data, the results were mixed.
Here are the results for a search of “l. rev.” in that database:
- Before 1980 7 Citations
- Between 1980 and 1990 12 Citations
- Between 1990 and 2000 12 Citations
- Between 2000 and 2007 40 Citations
Ok, how about for the term “law review” itself?
- Before 1980 91 citations
- Between 1980 and 1990 10 citations
- Between 1990 and 2000 25 citations
- Between 2000 and 2007 14 citations
Other metrics are also unclear: Harvard Law Review (Before 1970: 34; 1970-1980: 2; 1980-1990: 8; 1990-2000: 4; 2000-2007: 1); Journal of Corporation Law(Before 1970: 2; 1970-1980: 103; 1980-1990: 474; 1990-2000: 366; 2000-2007: 54).
What to make of these data? At least, I think we can reject Liptak’s hypothesis: there is no clear trend away from citation. Further analysis would likely confirm my hypothesis that the bench has grown more willing to cite academics, especially since the mid-1980s.
The interesting question is why this engagement might happen? Is it a cultural characteristic of the Delaware bench, driven by certain personalities (Chancellor Allen, for example)? A reflection of the highly complex disputes and the need for specialized expertise? A greater reliance on professional clerks? I’m going to go largely with culture: I think that the Delaware courts have been led to engage with academics in productive ways, and that engagement is self-reinforcing. For example, many Delaware judges now teach at law schools, in “mini-courses” or otherwise, while fewer federal judges do so than used to be the case. This may lead Judges to value academic contributions more highly.
April 4, 2007 at 10:08 pm
Posted in: Corporate Law
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Responses (5)
clerk in DE - April 5, 2007 at 12:06 am
I wonder if the academics have something to do with it as well. Corporate legal scholars seem more interested than scholars in other fields in writing practical, useful articles that judges might benefit from reading.
Jason - April 5, 2007 at 10:23 am
Clerk (12:06) makes a good point.
And in any case, Prof. Hoffman, your two rationales (protecting themselves; harried clerks) are belied by the actual statements of Second Circuit judges who visited Cardozo a few weeks back (which event was the catalyst for Liptak’s story), almost all of whom said or implied, “We just don’t read the law reviews.”
I *guess* this could fit into “protecting themselves” because maybe they’re just not admitting that they’re reading them – but isn’t lifetime tenure granted so that judges could say something like this without fears of repercussions?
Orin Kerr - April 5, 2007 at 12:33 pm
I would guess the reason is that Delaware Supreme Court Justices and Chancery Court judges are selected in part on their ability to become (or proven abilities to be) experts in one highly technical and specialized field. As a result, they are much more likely than other judges to engage with the academic material in that field.
Nate Oman - April 5, 2007 at 12:42 pm
One way of testing Orin’s hypothesis would be to look at other courts with specialized jurisdictions and see if they are also more friendly to academic influences. One obvious place to look is the Federal Circuit or the Federal Tax Court. Can anyone with greater expertise in patents or tax etc. say whether or not they are a more “academic” courts?
clerk in DE - April 5, 2007 at 1:59 pm
This might not be directly relevant, but it’s worth noting that Delaware courts are unique in a few ways:
Delaware judges are appointed for 12-year terms, and are selected by a bipartisan commission (the commission makes a list, the governor makes a nomination from the list, and the state senate confirms the nominee (or not)). Also, the Delaware Constitution requires a bipartisan judiciary. Without knowing much about the reality on the ground, it seems to me that the process is such that merit is about the only thing that would animate the selection process.
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