Are Law Reviews Useful to Courts?

|The Volokh Conspiracy |

Two commenters on Josh Blackman's recent post about ideology and law reviews repeated a common assertion: "[F]ew courts or judges pay much attention to [law reviews]." "They serve no useful purpose except resume building."

It's hard to measure the value of law reviews, but here's one data point: I did a quick search on Lexis for cases in just one year (2019) that cite an "L. Rev." or an "L.J.," and it yielded 3724 cases. It seems that about 10% might be false positives (chiefly from references to litigants or third parties that had "L.J." in their names or pseudonyms), and doubtless others might be some false negatives (since many law reviews aren't called Law Review or Law Journal). There may also have been a different kind of false positive—judges citing an article even though they didn't find it at all helpful to their analysis, but just because they think it might be useful to readers—and a different kind of false negative: judges or law clerks finding an article useful but not citing it. Still, the 3724 number should give you a sense that many judges do find law reviews useful at least sometimes.

Naturally, this says nothing about whether the social benefits of producing law review articles (which would presumably extend beyond their benefits to judges) exceed the social costs; whether we should switch to some better approach to law review article publishing; how much weight we should give to the fact most court decisions don't cite law review articles (perhaps that's just because the analysis is straightforward and doesn't require an academic perspective, or because the lawyers didn't cite the articles and the judges and clerks didn't see the need to themselves search for such articles); or a variety of other topics.

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  1. How many of these cites were part of string citations or duplicative of other authorities?

    Or merely inserted by clerks (usually former law review editors) and not really relied on by the judges?

    1. That’s where you do qualitative research on a few cases and find out — and then try to apply your findings to the whole.

    2. Or merely inserted by clerks (usually former law review editors) and not really relied on by the judges?

      I looked very, very hard throughout my clerkship year on the Fifth Circuit for an opportunity to include, in an opinion I was preparing for my judge’s review, a citation to my own law review note. Alas, the particular area of Texas marital property law having to do with distribution of partnership ownership & management rights in a divorce didn’t arise in the Fifth Circuit that year, in our chambers or any others.

      I had to content myself with citing a small handful of other articles or notes from the law review I’d helped edit. They were not contrived citations, but neither were they terribly necessary, and yes, they were usually in footnotes.

      1. This lends support to the perception that the only reason anyone cites law review articles is that clerks are basically glorified law students who don’t know any better.

        1. This lends support to the perception that the only reason anyone cites law review articles is that clerks are basically glorified law students who don’t know any better.

          I wouldn’t go that far: Those who become law clerks, especially for the federal courts, are generally among the most successful law students, especially law review editors. They do often lack much real-world experience, especially when hired directly out of law school (which is very common but far from universal). Judges generally should and do compensate for that lack of experience. The judge for whom I clerked is now the longest-serving judge in the history of the Fifth Circuit, but when I clerked, she was in her second year on the bench, and she was acutely aware of her own judicial inexperience, and that she’d come from a mostly business law practice with little litigation experience. Consequently she was fanatical about making her clerks “show their work,” with exhaustive citations, and she demanded that we back up our written assertions in anything we drafted instantly and in detail upon demand (and she had many). I think she compensated for her own, and our experience, more than adequately — brilliantly, in fact, I’d say.

          But in any event, this self-referential focus only explains some limited number of law review citations, and it’s not at all inconsistent with the law review citations being genuinely helpful and on point, even if not very often strictly essential or necessary.

  2. Memory is that Lexis has a listing of the law journals in that database.

    Now find a student who is good at data mining, and have him figure out how to use that list to do a search for those names appearing in decisions. Or do it the hard way, look up each journal individually — memory is that it was less that a hundred on the list.

  3. Both bench and bar prefer to cite to the most authoritative source that can be found to establish any given proposition. That’s just part of advocacy as practiced both by bar & bench.

    Courts are going to prefer to cite written decisions of other courts over other sources of authority — with opinions of the SCOTUS and its top state-court analogs, same-state courts, same system (state or federal) courts all likely preferred to secondary sources.

    Among secondary sources, procedural manuals and treatises are also going to be cited preferentially to law review sources.

    Unless it’s from a journal at a top tier national law school, law journal sources from out of state are going to be automatically suspect, especially if they’re student notes.

    For all these reasons, I would expect any statistical, empirical inquiry into influence (like a Westlaw search) to return fairly unimpressive results.

    But on the other hand — and it’s a very important hand! — historians of the law, both professional and amateur, can easily produce copious examples of law review articles and a few other secondary sources (e.g., the Restatements) profoundly affecting new precedent in developing areas of the law. Former Texas Law School Dean W. Page Keeton, for example, can easily be identified — both through his law review publications and the Restatement (2d) of Torts — as the “father” of products liability law in Texas, and one of its uncles for many other jurisdictions.

    Those sorts of rare examples are the sort of pennant-winning grand slam home runs to which all law journals aspire, and its a worthy aspiration. And a pennant-winning grand slam home run in many senses counts for more than just four RBIs.

    1. You are right about the hierarchy of authority, but a well reasoned law review article is still a useful citation when the issue is novel.

  4. What percentage of the decisions in the reference sample cited an article? What percentage of articles were ever cited?

    I agree that this refutes the naive claims that legal scholarship is completely and utterly useless for practitioners, but I don’t think it does much to show that it’s particularly useful.

    1. Both are good questions. The vast majority of cases will not cite law review articles because they rely on controlling case law authority instead. And when they are cited, it is often as additional to bolster a legal proposition already supported by case law.

      What we do not know, however, is the number of times judges will borrow ideas from law review articles without attributing the ideas to the author.

  5. It is impossible to gauge the relevance of this number without knowing the overall total number of cases during the period surveyed and the frequency with which other secondary sources or cases are cited. I’d think there’d also be a material difference in the significance of a citation at district court vs. appellate levels (citations in the former would seem a bit odd).

    Without this, you’re basically saying, “at least some judges cite law review articles at least some of the time,” which – great, fantastic. Doesn’t counter the “useless” claim.

    1. Also, how many different law review articles were cited? If it’s a handful of really useful ones, out of the thousands published each year, that’s not saying much.

  6. If you can’t find statutory or case law support, you resort to citing a law review article. The universe of possible opinions there is greater. In other words, it’s fig leaf.

    One might say law review articles encapsulate a lot of research, but I find it hard to believe that law secretaries (particularly in federal court) can’t do their own.

    I once worked for a partner whose article in a local legal newspaper got cited by the Supreme Court. It was not a very good article, and it was written with an obvious slant. But it said what the Justice wanted to hear, so it got cited.

  7. What SimonP said. Does this mean .1 percent of all cases cite a law review article, or .00001 percent? In either case, it isn’t a very impressive percentage, and suggests that writers of law review articles, who by and large live pretty well, are a net social drain. (Though of course, there is always the Ann Althouse suggestion, that university professors generally are dangerous nuts, and setting them to useless work in the academy is a way of preventing them from damaging the larger society.)

  8. A big question is whether the lawyers writing briefs will look for law review articles. I bet they would, if it was something novel– not as authority, but for ideas, and maybe even without citing them, since they’re not authorities. I would think a law review article could be highly important if it was on an obscure topic. I noticed that someone–David Skeel, I think– has written on whether federal law pre-empts state constitutions that say states and cities cannot get rid of pension fund obligations via bankruptcy. When the first case hits the courts, I bet that’s going to be read very carefully.

    If you want to write on the same topic as everyone else, on the other hand, there’s no reason a court should bother to go beyond the caselaw or their own political opinions. What’s useful and influential is going to be writing on technical law. Tax law, maybe, too– Kristin Hickman stuff, for example. Of course, law reviews probably don’t like that, and want the useless con law stuff.

    1. When I used to do tax litigation, I don’t think I ever found a useful idea in, or cited, a single law review article. Maybe practitioners in other fields have had different experiences, but in general the issues that interest law professors and law students are not very relevant to the actual practice of law.

    2. In over 15 years of writing appellate briefs, I can say I looked at a law review article once, and it was mostly just useful as a list of how the different courts nationwide that had considered the issue. I could’ve found all the same information elsewhere and had no need to cite the article.

  9. Maybe, law reviews would hold more sway if they were curated by law professors, rather than by students who aren’t even lawyers yet?

    1. That doesn’t seem especially likely to me: the larger issue is that law professors are practicing law less and less, and that their lack of actual exposure to the work lawyers do informs the subjects they decide to spend their time writing about.

  10. This is really interesting – the consensus among the practitioners and clerks here seems to be that journals aren’t too useful.

  11. HeinOnline, aided by FastCase, is now tracking article citations.
    For instance, in the last five years, OP has been cited 189 times in caselaw.
    Since US News and World Report is now using these HeinOnline numbers to measure faculty scholarship as part of law school rankings, most schools are working to improve author profiles.

  12. How is this different from any other academic discipline?

    1. Interesting question. My impression is that doctors read medical journals more than lawyers read law reviews, but I could be wrong. I have no idea about architects, accountants, etc.

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