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March 19, 2007

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:

UPDATEBoth 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."

March 19, 2007 at 07:01 AM | Permalink

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» Top Ten Ways to Improve Legal Scholarship? from Crime and Consequences
The legal blogosphere is engaged in a lively discussion this morning about the relevancy of law review articles for lawyers outside of academia. Doug Berman at SLP has this post, Dan Solove over at CO has this post, and Orin... [Read More]

Tracked on Mar 19, 2007 8:41:19 AM

» Top Ten Ways to Improve Legal Scholarship? from Crime and Consequences
The legal blogosphere is engaged in a lively discussion this morning about the relevancy of law review articles for lawyers outside of academia. Doug Berman at SLP has this post, Dan Solove over at CO has this post, and Orin... [Read More]

Tracked on Mar 19, 2007 8:42:27 AM

Comments

If I maybe so bold as to suggest some ways to fix this problem:

1. Law professors need to acknowledge the problem and that the problem lies with them, not with the rest of legal profession. Few people outside of academy read law reviews and that's a clear indictment of them.

2. There's well over 200 law reviews; ergo, there's not much of a filtering process. Compare this with many other areas of academia (e.g., psychology) where there's only about a handful of journals. Fewer journals increases competition and improves quality.

3. Peer review, peer review, peer review. Yes, we've never had it before, but when are we going to the join the rest of the academic community and stop leaving the selection of LR articles to kids?

4. Most LR publish 1 article and maybe a few essays. I suspect many do this to increase the "currency" of their journals. But what other academic journal can you think of that only publishes 1 article per issue?

5. No one likes the Bluebook. Time to get rid of it and help reduce the number of pages for each article.

6. Law school hiring committee's need to stop paying lip service to interdisciplinary work and truly give credit for work done outside of LR.

7. Multiple submissions is clearly a GAME. Publishing should not be a game.

8. Law reviews need to actually give each submission a read. I recently received a rejection from a LR that stated "after careful and thoughtful review of your piece..." yet I had submitted it just 1 day prior!

9. Most journals cannot be every flavor in the book. More specialized journals would guide submissions to their proper place.

10. Symposium issues seem dubious to me since, from what I can tell, symposiums, like many law school "conferences" are not open submissions, but by invitation only.

Just my 2 cents.

Posted by: Steve | Mar 19, 2007 8:14:46 AM

The New York Times article said,
--"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."--

Court opinions' citations of law review articles may have declined in frequency but are hardly insignificant. Just one law review, the Harvard Law Review, has been cited 967 times in this decade. So far, Internet blogs have not even begun to take up the slack -- an August 6, 2006 report on the Law Blog Metrics blog listed only 32 citations of blogs in 27 opinions starting in 2004, and 19 of these citations were of a single blog, this one (the Law Blog Metrics blog shows that citations of blogs by law review articles have been much more common -- 489 in a list posted on Aug. 16, 2006).

I think that citation of law review articles is most useful in new areas of the law where there is little or no case precedence to rely on. I think that as case precedence has expanded, the number of areas of the law where there is little or no case precedence has declined (though new areas like the Internet keep cropping up), and so there may be a declining need to cite law review articles. I think that this might help explain the decline in the frequency of court citations of law review articles.

--"The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles. "---

Don't many of the law professors do this right now? Where actual cases and doctrines are relevant to a law review article, it would certainly make good sense to write about them in the article. I think that these judges are talking through their hats.

--"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."--

As I pointed out above, court-opinion citation of blogs is still in its infancy.

With the large-scale citation of blogs by law review articles and the growing citation of blogs by court opinions, I think that the problem of arbitrary censorship of comments on blogs needs to be squarely faced. A blogger who practices arbitrary censorship has shown an intention to present just one side of controversial issues. A blog where arbitrary censorship is practiced should not be cited in law review articles or court opinions.

I am a highly experienced pro se litigant who has filed several appeals in federal courts of appeal and two appeals to the US Supreme Court.

Posted by: Larry Fafarman | Apr 4, 2007 6:16:29 AM

Correction of an error:

I said,
--"Just one law review, the Harvard Law Review, has been cited 967 times in this decade."--

Just for the record, the original source said 937 times, not 967 times.

Posted by: Larry Fafarman | Apr 4, 2007 7:12:46 PM

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