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Judges' Opinion: Law Reviews Are Irrelevant

According to this New York Times Sidebar column by Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, as evidenced by the declining number of citation to law review articles in judicial opinions. Though some might attribute the decline of law reviews to the increased popularity of blogs (which courts continue to cite with growing frequency), there are other factors at play, such as the larger issue of whether legal scholarship has grown out of touch with the realities of law practice. From Liptak's article:

Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them. The upshot is that the legal academy has become much less influential. In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.

Indeed, it's the apparent obscurity of law reviews that may have contributed to the rise of popularity of blogs. As the article explains:

The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles.  “If the academy does want to change the world,” Judge Reena Raggi said, “it does need to be part of the world.”  To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs.  Law reviews, by contrast, feel as ancient as telegrams, but slower.

Naturally, the Volokh conspirators have some insight on this question.  Orin Kerr's quick thoughts are here.  First, Kerr notes that that electronic databases have enabled scholars to readily access original sources, thereby obviating the need for reliance on law reviews.  And second, he says that it's not such a bad thing that judges are smart enough to know and brave enough to say that today's academics, the "emperors of scholarship," often aren't wearing any clothes:

I only read a very tiny fraction of the published legal scholarship, but my sense is that a lot of law review scholarship is not terribly serious about engaging with the law. If judges aren't paying any attention to such scholarship, then good for them: they know enough not to be fooled by fancy academic pedigrees and prestigious journals. Silliness in the Harvard Law Review is still silliness, and it's a good thing if judges recognize that.

And Dale Carpenter has an even more provocative view: He suggests that the failed Bork nomination may deter lower-court judges with higher aspirations from citing certain law review articles to avoid association with what may later be regarded as an extreme political position.

Finally, if courts do plan on moving away from citing law review articles in favor of blogs, perhaps then The Bluebook should reconsider its current citation format for blogs, which has rankled Christine Hunt of the Conglomerate. Specifically, Hunt writes that:

According to Rule 18.2.4, if the blog is a solo author blog, then you do not include the author's name.  So, if I want to cite to a post by my colleague Larry Solum on Legal Theory Blog, the cite will not contain his name.  In addition, the citation will not contain the title of the post although almost all blog posts have titles, and the titles have very interesting information in them.  However, the citation will include the time of the day of the posting, although that information will be irrelevant for almost all blog posts.  The format is thus:     Legal Theory Blog, URL (Month Day, Year, Hour:Minutes CST). As I say in my article, any Bluebook historian will tell you that the rules that have changed most often are the rules regarding author's names. From last names and first initials only to last name, first name and middle initial to "the author's full name as it appears on the publicaton," iterative changes to how we provide credit reflect the fact that credit is as important to legal scholars as to the Dustin Hoffman character in Wag the Dog. So, I recommend to all law review editors out there who are no doubt using this rule regularly to exercise their discretion to adopt a more enlightened citation format for blog postings!

The Bluebook Rule makes Professor Bainbridge grateful to have named his blog after himself, while Cathy Gellis opines that Howard Bashman of How Appealing "seems to have accepted  his Bluebook-induced fate with such equanimity."

Posted by Carolyn Elefant on March 19, 2007 at 05:36 PM | Permalink | Comments (2)

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