March 25, 2011
Crumbling Relic or Vibrant Source of Legal Illumination: New Citation Study Offers Ray of Hope That Scholarly Legal Articles Are Used by Judges (or at least Their Law Clerks)
The convention wisdom is judges are frustrated with legal scholarship's conceptual nonsense and law profs are upset that all the toil and trouble they put into their scholarly works is viewed with disdain by the bench. Whit D. Pierce & Anne E. Reuben's Empirical Study: The Law Review Is Dead; Long Live The Law Review: A Closer Look at the Declining Judicial Citation of Legal Scholarship, 45 Wake Forest L. Rev. 1185 (2010) offers some evidence that citation to legal scholarly writings is not disappearing from judicial opinions and in some cases is actually increasing. "The outcome of this Study," writes the authors, "is not a reason for the institution of law reviews to rest on its laurels. Lest “the dialogue between practitioners, judges, and academics, which began in 1875 in the first student-edited journal . . . , come to an end,” law reviews should account for the fact that the law and the world in which it operates are dynamic."
Two snips from the study's conclusion:
The point is this: legal scholarship as a means for shaping the law is not a thing of the past but that reality is not a reason for law reviews to rigidly maintain the status quo. The simple fact that so much attention has been devoted by both judges and scholars to ensuring that the legal scholarship supply is meeting the judicial demand demonstrates a continuing need for academic commentary on particularly relevant topics. This need can be filled by a combination of traditional law reviews and their online companions.
In the world of law reviews, it appears that, while the traditional print “body” of the institution is weakened, the dignitas of law review—scholarly thought and analysis—remains vibrant and useful.
Hat tip to Legal Skills Prof Blog. [JH]