Are Law Reviews Useful to Courts?

|

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.