The Supreme Court and Law Review Articles
posted by Peter Smith
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.
September 10, 2007 at 11:31 am
Posted in: Blogging, Supreme Court
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Responses (10)
it's hard out here for a law professor - September 10, 2007 at 12:32 pm
ideas and expression are not the same
AF - September 10, 2007 at 1:53 pm
If it were only a question of attribution, then I’d agree the articles should be cited. But as you note, it’s also a question of “persuasive authority,” an apparent contradiction in terms, which nevertheless provides a clue as to why the Court might not want to cite law review articles. The convention of calling references “authorities” reflects the tradition in legal writing of appealing to authority rather than (or in addition to) offering reasons for a decision. Justice Roberts may feel that only official materials — statutes, judicial opinions, etc. — deserve the moniker of authority, and therefore avoid citing unofficial materials such as law review articles in order to avoid giving the impression that they are “authorities,” persuasive or otherwise.
Jennifer Hendricks - September 10, 2007 at 3:09 pm
Given a political climate that is often “anti-elitist” in the sense of sneering at the academy, there may be political dishonesty in trying to distance oneself from academic literature but in fact relying on it. (I’m not saying that the Chief Justice is guilty of this.)
More generally, the Court’s opinion is supposed to reveal and justify its reasoning. The Court should acknowledge that it is consulting law review articles, because when it does so, it _is_ treating those articles as “persuasive authority.”
Greg McNeal - September 10, 2007 at 4:46 pm
While not directly on point, recently an attorney was disciplined for a failure to cite to authority.
It’s an interesting tangential FYI discussed over at Volokh:
http://volokh.com/posts/1189185929.shtml
AF - September 10, 2007 at 5:59 pm
Professor Hendricks, as I tried to argue above, being persuaded by the reasons given in a law review article is not the same as treating that article as “persuasive authority.” I agree that it is good for the Supreme Court to reveal its reasoning — but that has to be balanced against the need for legal clarity, which is helped by minimizing the number of sources that can be seized upon by lower courts and practicioners as Supreme-Court-sanctioned “persuasive authorities.”
I agree with Greg McNeal that the question of plagiarism in legal writing is related. It is the consensus of commenters on volokh.com that the standards for plagiarism in legal writing are much looser than in academic writing. Only the direct copying of text without attribution constitutes plagiarism according to prevailing norms among lawyers. I would agree that the Supreme Court should not plagiarize in that sense. But barring that, I can see why the justices would want to minimize citation to law review articles.
Orin Kerr - September 11, 2007 at 12:25 am
Peter,
I think some kind of citation is a nice courtesy if the Court really did end up getting a point from a work of scholarship. But I’m not sure the law has a good “signal” for that kind of a reference. If the court uses a “see” reference, it makes it sound like they think the article is actually some kind of authority. But that’s rarely the case; it’s much more likely to be the case that some professor came up with a good idea that the Justices decide they like, too. In that case, the article isn’t an authority — it’s just a place that an idea was developed. (A “cf” might be the best option, but then maybe that comes off as too indirect?)
Anon for this - September 11, 2007 at 8:28 pm
As to the omission of Colby’s piece in particular, various constitutional historians persuasively showed there was no there there. A particularly unforgiving assessment of Colby’s arguments can be found in Akhil Amar’s amicus brief in the PM case.
Peter Smith - September 11, 2007 at 11:05 pm
Anon– Obviously, my post wasn’t about the correctness of the Court’s decision in Williams one way or the other. But for what it’s worth, apparently a majority of the Supreme Court disagreed with you and Professor Amar, as have other legal historians, who have concurred with Colby’s key point. Professor Colby is, I believe, currently working on an article responding to the criticism of Amar and others, and I imgaine that it will speak for itself. –Peter Smith
Anon for this - September 15, 2007 at 10:51 pm
Peter, I’ll look forward to Tom’s response to his critics, but it’s a mistake, in my view, to view the PM majority opinion as predicated on or concurring with Colby’s key point. Colby adduced historical evidence to reach the conclusion he did. The Court did not rely on history to reach its conclusion; indeed, the short opinion sort of makes up the answer while gliding by its own precedent — even Colby’s article acknowledges that the there is conflicting language in the Court’s recent cases. That’s not to say the conclusion of PM’s majority is wrong as a normative matter, but it is to say that the Court’s conclusion can be arrived at via other principles and interpretive strategies, and if they did, then they are not “concurring with Colby’s key point” if Colby’s key point is motivated by historical as opposed to normative argument.
For what it’s worth, of the articles on constitutional history of punitive damages that I’ve read since Colby’s article came out, they have been skeptical. E.g., Redish and __’s Emory 2004 piece. I’m not familiar with the “other legal historians” who have explicitly embraced Tom’s historical argument. If you could point them out, I’d be grateful. That said, I recognize that this discussion is orthogonal to your main point, and I apologize for the distraction this colloquy creates.
Peter Smith - September 17, 2007 at 10:05 am
Anon, There’s no need to apologize, but I think at this point I’ll just let Professor Colby’s forthcoming article speak for itself.
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