Law professors take heart — your scholarship isn't necessarily destined to fade into obscurity.
Two law professors who researched the salience of legal research have concluded that, contrary to conventional wisdom, judges increasingly are citing law review articles in their opinions.
David Schwartz, assistant professor at Chicago-Kent College of Law, and Lee Petherbridge, professor at Loyola Law School, Los Angeles, analyzed more than 296,000 reported federal circuit opinions filed between 1950 and 2008 for their article "The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study." They posted their draft conclusions last month on the website of the Social Science Research Network (SSRN).
Schwartz and Petherbridge found increased citation to law review articles during the past 20 years. "This finding raises serious doubts about the conventional wisdom and suggests that easy conclusions about the meaning of legal scholarship to judges may be difficult to reach," they wrote.
Widespread acceptance of the idea that legal scholarship is irrelevant inspired the two to take an empirical look at the data, Schwartz said. They noted that prominent judges including Chief Justice John Roberts and Chief Judge Dennis Jacobs of the 2nd U.S Circuit Court of Appeals have declared that legal scholarship is not particularly helpful to judges.
"We were talking about the fact that there are a lot of ideas that everyone seems to accept without really challenging," Schwartz said. "We thought it was begging for analysis. We weren't convinced that the existing literature made the case, so we decided to investigate."
They found that 30 percent of law review citations in federal appellate opinions were made between 1950 and 1979, while 70 percent came between 1980 and 2008. This finding was not simply a byproduct of a larger number of opinions issued annually in recent years. Petherbridge and Schwartz broke down the proportion of opinions that cited law review articles over time, and found that percentage has increased. Only 3.4 percent of opinions cited legal scholarship between 1950 and 1979, compared to 6.2 percent between 1999 and 2008.
The researchers did not examine the reasons for the increase, or why certain judges rely more heavily on research compared to 40 years ago, but offered several theories.
One is that law review and law journal articles became more easily accessible during the mid-1970s, when LexisNexis Group and Westlaw archives became accessible electronically. Access got an additional boost during the mid-1990s, with the growth of the Internet.
On the other hand, busier courts are less likely to cite legal scholarship. "The interpretation that the busier a court is (in terms of the work required of each judge) the less likely it is to cite legal scholarship -- besides being fairly intuitive -- finds some support in the anecdotal literature," they wrote. "For example, Third Circuit Judge Thomas Ambro has explained that he does not have time to read and synthesize law review articles -- he is simply too busy deciding cases."
The trend also may be a byproduct of the reality that generalist judges need assistance as legal matters become more complex and diverse over time, they speculate. Ideology may be another a factor, as liberal circuits tended to cite law review articles more often than conservative ones.
