March 19, 2007
The judicial (and judicious?) decline of law review cites
Monday's New York Times has this interesting "Sidebar" column by Adam Liptak entitled, "When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant." Unsurprisingly, the article includes ruminations that on-line developments and innovations in part explain why law review articles are being cited far less frequently in judicial opinions in recent years. Also unsurprisingly, the legal blogosphere has been quick with commentary from:
- Jack Balkin with Judges Lose Cite of Law Reviews
- Doug Berman with More grist for the blog-scholarship debate
- Orin Kerr with How Often Should Judges Cite Law Review Articles?
- Daniel Solove with Why Are Judges Citing Fewer Law Review Articles?
Posted by DAB
UPDATE: Here's some more commentary on a topic that I assume will continue to generate buzz from law professors and law bloggers:
- Dale Carpenter with Two more thoughts on the decline of law review citation
- Peter Lattman with Judges Are Ignoring Law Review Articles
- Eugene Volokh with How Much Should Legal Scholarship Aspire To Being Cited by Judges?
As is often the case, Ann Althouse has the most enjoyable of posts on this topic, and it concludes with this fantastic call for action:
[J]udges could change the whole dynamic if they started rejecting law clerk applicants whose law journals published the kind of articles they don't read. So quit complaining and use your power to change things. Or are you so beholden to the law professors whose work you don't read that you have to hire their darlings, those law students who publish the articles you don't read?
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If judges do not read law reviews, what are they reading? Frankly. the idea that one or more federal judges do not read law reviews is not surprising. There are a lot of federal judges and, I suppose, one can find a few of them to support pretty much any position one wants to assert. What is surprising is that the follow up question is never asked; If the judge does not read law reviews, what is the judge reading to be current and knowledgeable about the legal issues confronting the country today? Is the judge reading treatises, lawywer sponsored journals, such as "Business Lawyer", practitioner publications, such as Mallen & Smith on "Legal Malpractice"? If law reviews are not on the judge's coffee table, what is?
Posted by: jim fischer | Mar 20, 2007 1:33:00 AM
This doesn't surprise me. When I was practicing at BIG LAW, we always knew we had a losing issue when the only "authority" we could find was a law review article.
Posted by: Kelly | Mar 20, 2007 8:26:58 AM