Sunday, February 20, 2011

Article of interest: "The law review is dead; long live the law review: a closer look at the declining judicial citation of legal scholarship"

Practitioners and judges for years have been complaining that law review articles are too disconnected from the practice of law to be much use.  Prior studies have sought to prove the declining influence of law review articles on judicial decision-making by showing a decline in citations to such articles.  Now two Wake Forest students have published the above-titled article at45 Wake Forest L. Rev. 1185 (2010) in which they argue that the decline in citations can be explained by reasons other than diminishing influence.  From the introduction:

'I haven't opened up a law review in years ... . No one speaks of them. No one relies on them.' This, according to Chief Judge Dennis G. Jacobs of the United States Court of Appeals for the Second Circuit. Judge Jacobs is not alone in his opinion of the current state of law reviews. Judge Harry Edwards famously disparaged the usefulness of law reviews in his article The Growing Disjunction Between Legal Education and the Legal Profession. In that article, Judge Edwards explained that 'our law reviews are now full of mediocre interdisciplinary articles. Too many law professors are ivory tower dilettantes, pursuing whatever subject piques their interest, whether or not the subject merits scholarship, and whether or not they have the scholarly skills to master it.' And it is not just judges who warn of declining judicial interest in law reviews. In 1998, attorney Michael McClintock published an empirical study in the Oklahoma Law Review that backed up the general sense of decline with hard numbers ('Oklahoma Study'). The Oklahoma Study found that there was a 47.35% decline in the use of legal scholarship by courts from 1975 to 1996.  A more recent study by the Cardozo Law Review found that, in the 1970s, federal courts cited to the Harvard Law Review 4,410 times; that, in the 1990s, the number of citations dropped by more than half to 1,956; and that the precipitous decline continued well into the first decade of the twenty-first century.

The institution is not, however, without its defenders. The feeling of Judge Stanley Fuld, expressed in 1953, that some judges 'admire the law review for its scholarship, its accuracy, and, above all, for its excruciating fairness' is still shared by some practitioners. Judge Dolores Sloviter of the United States Court of Appeals for the Third Circuit recently published a thoughtful defense of law reviews:
To practitioners and judges, law reviews can provide an expeditious vehicle by which to receive a comprehensive introduction to an unfamiliar field of law written by scholars who have studied and taught in the field or by experienced practitioners who are personally involved with that subject. Law review articles, and even student notes, may offer useful insights on unresolved issues, particularly when there is more than one point of view. The point-counterpoint of an article, response, and other commentary can be useful as well as entertaining for those seeking an entree into the most sophisticated thinking on the latest issues and trends.

The answer to whether the institution is a crumbling relic or a vibrant source of legal illumination lies, as is often the case, somewhere in the middle. Our hypothesis is that the theories underlying - and therefore, the basic methodology employed by - the recent citation studies are fundamentally flawed and that by altering the methodology, a different, less dire picture will emerge. It turns out that our hypothesis has merit. Our data indicate that judicial citation of law reviews might not be in decline at all, and that in some cases, just the opposite might be true.

Our presentation will proceed in five Parts. In the interest of providing context for the subsequent Parts, Part I offers a short, general history of law review citation by courts, including the debate surrounding its decline. Part II describes a ten-year update to the 1998 Oklahoma Study, using the same methodology as was employed in that study. Part III then highlights and discusses several possible explanations for the apparent decline in judicial citation of law reviews. Part IV compares the traditional citation study methodology with our methodology and explains how our methodology attempts to account for the explanations provided in Part V. Part V analyzes our results and reflects on them. Finally, the Study concludes by considering the institution of the law review in light of our results and by asking how law reviews might adapt to the changing legal landscape to ensure their continued vitality.


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