It’s almost become traditional wisdom over the past ten years: for the day-to-day work of the courts and the practicing bar, law reviews matter less than ever before. Chief Justice Roberts recently characterized legal scholarship as not “particularly helpful” in deciding cases. Judge Harry Edwards of the D.C. Circuit has been a critic of the state of legal scholarship as well, as have several other judges. An ABA study commented that practicing lawyers increasingly viewed legal scholarship as “irrelevant to their day-to-day concerns.” Even several law school professors have joined the chorus, endorsing the view that legal scholarship is increasingly removed from the work of the courts, and trying to quantify the “decline.”
But it turns out that reports of the death of the law review as a force in America’s courts may have been greatly exaggerated. According to a massive new study by Professors David Schwartz of Chicago-Kent College of Law and Lee Petherbridge of Loyola Law School Los Angeles – “The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study" — the courts’ use of legal scholarship is steadily increasing.
Professors Schwartz and Petherbridge studied a database of 296,098 reported decisions of the Federal Circuits spanning the years between 1950 and 2008. After screening out false positives and false negatives, the researchers plotted the positives – the opinions citing at least one law review or law journal – against the fifty-nine year study period. They concluded that citations to legal scholarship have steadily increased among the Federal appellate courts throughout the period. To determine whether the increase was a function merely of the courts’ increasing workload, the Professors plotted the citing opinions as a percentage of all opinions in a given year, and the result was still a steady upward trend.
The researchers analyzed possible explanations for the use of legal scholarship. Not surprisingly, they confirmed that the busier a particular Circuit is, and the more opinions written per appeal filed, the less likely an opinion is to cite to law reviews and journals. They suggested that the increasing use of scholarship might be explained, in part, by the fact that many areas of law arising in published cases have become increasingly complex, and there is simply far more scholarship easily available online than ever before. The professors also found a correlation between the dominant ideology of a Circuit and the court’s use of legal scholarship: more conservative courts use scholarship less, more liberal courts use it more.
Of course, the study suggests many follow-up questions, several of which the Professors discuss. The authors note that by taking a detailed look at the content of the articles and court opinions, important light might be shed on the issue of what kinds of legal scholarship judges use, and how do they use it. The researchers point out that the study concluded that over the entire period, only a little less than five percent of all opinions cited legal scholarship. Is that figure unexpectedly low? What role should the law reviews and journals be playing with respect to the bench and bar? And why — other than workload — do some courts and specific judges seldom discuss legal scholarship, while others use academic work far more?
Although online databases of Federal appellate briefs are nowhere near as complete as the collection of opinions – Westlaw’s coverage begins in 1972 for the Fifth Circuit, but not until 2000 for the Tenth – it would be equally fascinating to apply the professors’ methods to practitioners’ briefs. Are practitioners providing more scholarly analysis to the courts? Is there any distinction in the use of scholarship between appellants and appellees? Are briefs in certain types of cases more likely to rely on scholarship?
Professors Schwartz and Petherbridge have provided important new evidence on a question that will interest a great many attorneys and judges. Their study is well worth a read.