The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues

While patent law is my core area of scholarly interest, I have also studied the use of legal scholarship by the courts. My co-author Lee Petherbridge from Loyola-LA and I have conducted several comprehensive empirical studies using large datasets on the issue. More precisely, we have analyzed how often federal courts cite to law review articles in their decisions. We have empirically analyzed the issue from a variety of angles. We have studied the use of legal scholarship by the U.S. Supreme Court (available here), by the regional U.S. Courts of Appeals (study available here), and by the Federal Circuit (available here). I won’t recount the finding of those studies here. Instead, I will report some new information and ask readers for potential explanations of the data.

As part of our Supreme Court studies, we identified which Supreme Court decisions cited to legal scholarship in every case from 1946 until the end of the 2010 Supreme Court term. This includes almost 8,000 decisions. We supplemented our information about legal scholarship with data in the well-known Spaeth database, also known as the Supreme Court Database. Despite criticism of the Supreme Court Database by some (including my colleague Carolyn Shapiro here), the Supreme Court Database has been called the “gold standard” for political science research.

Lee and I observed that the Supreme Court uses legal scholarship at sharply different rates for different types of legal issues. Using the Spaeth database’s coding of the 13 primary issues in a decision from the 1946 term through the 2010 term, below is a summary of our findings:

(The data above covers a slightly broader time period than similar data we reported in Figure 1 of our piece on the Supreme Court’s use of legal scholarship in intellectual property cases, available here).

Any thoughts on why the Supreme Court uses legal scholarship in due process, privacy, and First Amendment cases so much above the mean, and why the Supreme Court uses legal scholarship some much below the mean in judicial power (i.e., venue, civil procedure, standing) and taxation cases? To throw out a few potential explanations, it could be that the amount and quality of scholarship differ among these areas, or that the Court is more comfortable on its own in some of these areas.

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6 Responses

  1. Griff says:

    As for privacy, I’m guessing it’s because the entire idea of a legal right to privacy dates from a late nineteenth century law review article by Warren & Brandeis. It wouldn’t surprise me to learn that a third or more of the Supreme Court’s privacy decisions cite that one article in particular.

  2. Orin Kerr says:

    When you say that the Supreme Court “uses” the scholarship, do you mean that the majority cites it? Or do you mean that anyone cites it?

    As for the broader trend, we might expect that judges are likely to cite law review articles where (a) an area of doctrine is changing over time and (b) there is lots of legal scholarship on the issue of how it should change and (c) that scholarship generally supports the position taken by the opinion citing it. So that’s a first guess.

  3. David Schwartz says:


    To be clear, the figure reports the percentage of decisions in which anyone (majority, dissent, concurrence) cites to legal scholarship. I just quickly tabulated the results when limited to citations by the majority opinion only. The same issues appear above and below the mean (i.e., privacy, due process, and First Amendment case above; and judicial power and taxation cases below.)


  4. Orin Kerr says:

    Thanks, Dave, that’s very helpful.

    One more question: Is there a way to run the numbers and include citations to treatises? There are some fields in which treatises by academics are cited very widely for points that could otherwise be found in law review articles. For example, Wayne LaFave has been cited in over 150 Supreme Court opinions in the criminal law and procedure area, mostly for treatises that he has authored or co-authored. I wonder if including treatises might change the results.

    As for the broader question, perhaps a helpful way to think about this is that Justices have a hierarchy of authority in mind: existing Supreme Court precedent comes first and secondary authorities like law review articles come in much later. A Justice will therefore cite precedent if the point is contained in precedent but may cite articles when there is no precedent on point. If that’s right, we would expect Justices to cite articles when an area of law is changing and there are sources found in established secondary authorities.

  5. David Schwartz says:


    Thanks for the thoughts.

    As for your follow-up question, the relationship between treatise citations and law review citations is an interesting and underexplored topic. Unfortunately, treatise citations are relatively difficult to obtain, and we don’t have that information. Law reviews typically have either ‘review’ or ‘journal’ in the title, which makes them easier to locate using an automated search. Treatises don’t use ‘treatise’ or a common term in the title.


  6. Orin Kerr says:

    Fair enough. One way to check on the use of treatises would be to try the names of a few prominent treatise writers and see if the numbers make a difference. In crim and crim pro, for example, check for “Lafave”; in Copyright, check for “Nimmer.” These names are unusual enough that they should be easy to spot, and at least could give you a ball park sense of whether there may be fields in which treatises are playing a role.