The Law Reviews vs. the Courts

I’ve just posted to SSRN the near-final version of a short essay I wrote for “CONNtemplations,” the soon-to-debut online companion to the Connecticut Law Review, titled “The Law Reviews vs. the Courts: Two Views from the Ivory Tower.” The essay advances the (perhaps somewhat counterintuitive) claim that part of the reason why federal judges have found law reviews increasingly unhelpful is because their own discretion, both procedurally and substantively, has been substantially cabined in recent years…

I explain in somewhat more detail in the essay, which I (shamelessly) encourage you to check out — it’s a quick read, too. But I wanted to blog about it here to see if folks think there’s any possible connection. As Congress and the Supreme Court have narrowed the scope of review in all kinds of cases, as courts have relied that much more frequently on harmless error and the like, etc., is there something to be said for _that_ trend having an impact on the utility vel non of legal scholarship? Or, are we just, as Second Circuit Chief Judge Jacobs recently suggested, hopelessly out of touch?

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7 Responses

  1. Scott says:

    I haven’t read the article, but based on the title, the focus appears to me to be somewhat misguided. It should be titled “The Law Reviews vs. The Brief Writers.” Most decisions are drawn primarily from the winning brief, not from a Judge’s leisure reading. As a brief writer myself, as a rule I never cite Law Review articles, save as a last resort. Likewise, if my adversary were to rely solely or largely on a law review article for a key point, I would be certain to alert the Court to that fact, and I am loathe to provide the same opening. No offense intended. But if one is looking for a reason why citations to such publications are dropping, it is mainly due to folks like me – I just do not believe there is much mileage to be gained from the (1) time required to identify, review, and understand of what are often – not always – over-long, too-dense opinion pieces or (2) citation to such pieces, when there is nothing particularly binding about them, and even non-binding case law from other jurisdictions is more persuasive (in my, I believe widely-shared, view).

  2. Steve Vladeck says:

    Scott — My experience clerking is somewhat at odds with your suggestion that “[m]ost decisions are drawn primarily from the winning brief.” To the contrary, I was surprised by the extent to which, in many chambers, the briefs are only a small part of the larger puzzle. So the question is also whether these articles are being read by law clerks, something that is very difficult to measure except through citations in opinions, hardly a convincing metric.

  3. Larry Rosenthal says:

    If the thesis in the essay were true, shouldn’t we expect to see a differential decline in citations to law review in those particular fields in which judicial discretion has been circumscribed (e.g. habeas)? The article does not claim that there is any evidence of such a phenomenon, however.

    Larry Rosenthal

    Chapman University School of Law

  4. Steve Vladeck says:

    True enough — but that’s not to say that such evidence doesn’t exist… Indeed, to whatever extent we’re willing to accept citation counts as a meaningful metric, I think that would be a worthwhile empirical project. But the larger purpose of the essay is to suggest that we’re not even asking the very question you raise… We’re just assuming that, if scholarship is playing a smaller role, it is entirely because of characteristics of the scholarship itself. That’s the assumption against which the essay was written.

  5. Larry Rosenthal says:

    I see. According to its author, the essay advances an empirically verifiable thesis without bothering to look at the relevant empirical evidence. Small wonder that judges and practitioners find little in academic writing that is worthwhile.

  6. Ender Wiggin says:

    With all due respect to Prof. Rosenthal, I take Prof. Vladeck’s thesis to be that current accounts of judicial hostility to legal scholarship have not even attempted to incorporate the courts’ side of things… And it is always difficult to prove a negative. That there may be empirical evidence for a follow-on point doesn’t seem to undermine, in any meaningful way, the original thesis…

  7. Larry Rosenthal says:

    As Holmes tried to teach us, law is a practical business. A thesis that is not testable is of no use to anyone, except perhaps a law professor (or a fictional character, with all “due respect” to Mr. “Wiggin”). A thesis that is testable, in contrast, should be tested. Until that happens, however, it has no explanatory power. A thesis advanced by a law professor to establish the value of his work, in turn, surely should be viewed with special skepticism, especially when it is either untestable or untested.