More grist for the blog-scholarship debate
Today’s New York Times has this interesting “Sidebar” column by Adam Liptak entitled, “When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant.” (Howard Bashman has the link and thoughtful early commentary comes from Jack Balkin and Orin Kerr and Dan Solove.) The article confirms my instinct and experience that judges find scholarly blogs much more relevant and user-friendly than traditional law review articles. Here are some excerpts:
“I haven’t opened up a law review in years,” said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. “No one speaks of them. No one relies on them.” In a cheerfully dismissive presentation, Judge Jacobs and six of his colleagues on the United States Court of Appeals for the Second Circuit said in a lecture hall jammed with law professors at the Benjamin N. Cardozo School of Law this month that their scholarship no longer had any impact on the courts.
The assembled professors mostly agreed, though they differed about the reasons and about whether the trend was also a problem. Some suggested, gently, that judges might not have the intellectual curiosity to appreciate modern legal scholarship.
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. Patterns at other leading law reviews are similar….
Even when courts do cite law review articles, Judge Robert D. Sack said at Cardozo, their motives are not always pure. “Judges use them like drunks use lampposts,” Judge Sack said, “more for support than for illumination.”
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.
Along with the article, the NYT provides this link to the referenced Cardozo Law Review analysis entitled “Trends in Federal Judicial Citations and Law Review Articles.”
Some related posts:
UPDATE: Both the Cardozo analysis and the insights of the Liptak article reinforce my perspective that structural forces like new technologies and the unusual “marketplace” in which law professors operate have a lot to do with these trends. I discuss these dynamics in detail in my recent article “Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs.”