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The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues

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6 Responses

  1. Griff says:

    As for privacy, I’m guessing it’s because the entire idea of a legal right to privacy dates from a late nineteenth century law review article by Warren & Brandeis. It wouldn’t surprise me to learn that a third or more of the Supreme Court’s privacy decisions cite that one article in particular.

  2. Orin Kerr says:

    When you say that the Supreme Court “uses” the scholarship, do you mean that the majority cites it? Or do you mean that anyone cites it?

    As for the broader trend, we might expect that judges are likely to cite law review articles where (a) an area of doctrine is changing over time and (b) there is lots of legal scholarship on the issue of how it should change and (c) that scholarship generally supports the position taken by the opinion citing it. So that’s a first guess.

  3. David Schwartz says:

    Orin,

    To be clear, the figure reports the percentage of decisions in which anyone (majority, dissent, concurrence) cites to legal scholarship. I just quickly tabulated the results when limited to citations by the majority opinion only. The same issues appear above and below the mean (i.e., privacy, due process, and First Amendment case above; and judicial power and taxation cases below.)

    Dave

  4. Orin Kerr says:

    Thanks, Dave, that’s very helpful.

    One more question: Is there a way to run the numbers and include citations to treatises? There are some fields in which treatises by academics are cited very widely for points that could otherwise be found in law review articles. For example, Wayne LaFave has been cited in over 150 Supreme Court opinions in the criminal law and procedure area, mostly for treatises that he has authored or co-authored. I wonder if including treatises might change the results.

    As for the broader question, perhaps a helpful way to think about this is that Justices have a hierarchy of authority in mind: existing Supreme Court precedent comes first and secondary authorities like law review articles come in much later. A Justice will therefore cite precedent if the point is contained in precedent but may cite articles when there is no precedent on point. If that’s right, we would expect Justices to cite articles when an area of law is changing and there are sources found in established secondary authorities.

  5. David Schwartz says:

    Orin,

    Thanks for the thoughts.

    As for your follow-up question, the relationship between treatise citations and law review citations is an interesting and underexplored topic. Unfortunately, treatise citations are relatively difficult to obtain, and we don’t have that information. Law reviews typically have either ‘review’ or ‘journal’ in the title, which makes them easier to locate using an automated search. Treatises don’t use ‘treatise’ or a common term in the title.

    Dave

  6. Orin Kerr says:

    Fair enough. One way to check on the use of treatises would be to try the names of a few prominent treatise writers and see if the numbers make a difference. In crim and crim pro, for example, check for “Lafave”; in Copyright, check for “Nimmer.” These names are unusual enough that they should be easy to spot, and at least could give you a ball park sense of whether there may be fields in which treatises are playing a role.

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