The Supreme Court and Law Review Articles
Last term, when the Supreme Court decided Philip Morris USA v. Williams, a case involving constitutional limits on the award of punitvie damages, I was surprised to find that the Court did not once cite an article by my colleague Tom Colby. In the case, a majority of the Court essentially adopted wholesale the argument that Professor Colby had advanced in a 2003 Minnesota Law Review article. (There is little doubt that Justice Breyer, who wrote the majority opinion, was aware of the article, because the parties’ briefs cited it repeatedly.) I then learned that Linda Greenhouse had previously reported that Chief Justice Roberts seems inclined against citing law review articles in opinions. (Greenhouse had described it as Roberts’s “seeming allergy to citing law review articles.”) I began to wonder whether this is a trend, and whether we can expect the Court to cite fewer and fewer law review articles in its opinions.
After an admittedly quick search, here is what I learned. From the October 2000 Term through the October 2004 term, the Court averaged 24.8 cases per term in which at least one opinion cited at least one law review article. In the October 2005 Term — Chief Justice Roberts’s first term — the Court decided 28 cases in which at least one opinion cited at least one law review article. (As Greenhouse reported, during that term, Roberts himself cited only one article, by Judge Friendly, for whom he had clerked.) But in the most recent term — the October 2006 term, during which the Court decided the Williams case — the Court decided only 16 cases in which at least one opinion cited at least one law review article. Here are the year-by-year numbers:
October Term 2000: 26
October Term 2001: 20
October Term 2002: 21
October Term 2003: 28
October Term 2004: 29
October Term 2005: 28
October Term 2006: 16
It is too soon to tell whether the decline in the most recent term signals the start of a trend or is just an aberration, although the reports about Roberts’s view of the relevance of law review articles suggests at least that this is a trend worth following. But let’s assume for a moment that it is part of a trend. Is there anything wrong with the Court’s ostensibly relying on arguments developed by academics without citing the sources of those arguments? (I am assuming for present purposes that the Justices (or at least the clerks) will be aware of the body of legal scholarship relevant to the questions before the Court.)
On the one hand, the Justices regularly adopt without citation arguments advanced by the parties in their briefs, and although there might be occasional grumbling from advocates who thought they deserved some acknowledgment, I have never heard anyone suggest that there is something problematic or dishonest about this approach. On the other hand, my sense is that, at least as a matter of tradition, the Court has generally cited authorities external to the litigation itself when its arguments are drawn directly from them. In addition, most law schools today stress to students the importance of attribution, in both legal advocacy and scholarship. Of course, failure to cite law review articles is not the same as academic dishonesty. But given the general preference for attribution, perhaps the Court’s failure to treat articles as persuasive authority — if in fact that is what it is doing — deserves some explanation. I am curious to hear what others think.