The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues
posted by David Schwartz
While patent law is my core area of scholarly interest, I have also studied the use of legal scholarship by the courts. My co-author Lee Petherbridge from Loyola-LA and I have conducted several comprehensive empirical studies using large datasets on the issue. More precisely, we have analyzed how often federal courts cite to law review articles in their decisions. We have empirically analyzed the issue from a variety of angles. We have studied the use of legal scholarship by the U.S. Supreme Court (available here), by the regional U.S. Courts of Appeals (study available here), and by the Federal Circuit (available here). I won’t recount the finding of those studies here. Instead, I will report some new information and ask readers for potential explanations of the data.
As part of our Supreme Court studies, we identified which Supreme Court decisions cited to legal scholarship in every case from 1946 until the end of the 2010 Supreme Court term. This includes almost 8,000 decisions. We supplemented our information about legal scholarship with data in the well-known Spaeth database, also known as the Supreme Court Database. Despite criticism of the Supreme Court Database by some (including my colleague Carolyn Shapiro here), the Supreme Court Database has been called the “gold standard” for political science research.
Lee and I observed that the Supreme Court uses legal scholarship at sharply different rates for different types of legal issues. Using the Spaeth database’s coding of the 13 primary issues in a decision from the 1946 term through the 2010 term, below is a summary of our findings:
(The data above covers a slightly broader time period than similar data we reported in Figure 1 of our piece on the Supreme Court’s use of legal scholarship in intellectual property cases, available here).
Any thoughts on why the Supreme Court uses legal scholarship in due process, privacy, and First Amendment cases so much above the mean, and why the Supreme Court uses legal scholarship some much below the mean in judicial power (i.e., venue, civil procedure, standing) and taxation cases? To throw out a few potential explanations, it could be that the amount and quality of scholarship differ among these areas, or that the Court is more comfortable on its own in some of these areas.