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Monday, March 19, 2007

More on the Declining Influence of Law Reviews on Judges

Following up on Friday's post, Judges Use Law Reviews "Like Drunkards Use Lampposts: More For Support Than for Illumination", Adam Liptak has an interesting article in today's New York Times:  When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant:

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.

Blogoshere commentary:

http://taxprof.typepad.com/taxprof_blog/2007/03/more_on_the_dec.html

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For the most part, this commentary assumes that judges are the only important readers, if they choose, of law review articles. The commenters neglect to address the plain fact that the way to get judges to read and cite more law review articles, inevitably, is to convince lawyers to cite more law review articles for judges to consider. (Nowicki and Solove mention the bar in passing; if I overlooked any other such references in the blog links above, my apologies.)

I do not often cite law review articles in briefs, because it's hard nowadays to find anyone who writes with practical authority that can resolve concrete disputes. (My most recent law review cite was a article penned by Felix Frankfurter in 1947.) Non-law review legal periodicals are more pragmatic and, thus, more productively cited.

All that said, from time to time I find a link on this blog to a tax law article that will get cited at the right time and place, to the right judge.

Posted by: Jake | Mar 19, 2007 7:29:19 PM

Here is the content of the most recent issue of the Harvard Law Review (Feb. 2007, volume 120, issue 4):

ARTICLES

1. SOSA, CUSTOMARY INTERNATIONAL LAW, AND THE CONTINUING RELEVANCE OF ERIE

2. THE PARADOX OF EXTRALEGAL ACTIVISM: CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS

DEVELOPMENTS IN THE LAW --
THE LAW OF MEDIA

NOTE

1. What Price for the Priceless?: Implementing the Justiciability of the Right to Water

BOOK NOTE

1. Explaining the Organization and Actions of Legal Professions: Honor Seeking and Echoes of Political Revolution

RECENT CASES

1. Florida Supreme Court Declares State's 2. School Voucher Program Unconstitutional. — Bush v. Holmes, 919 So. 2d 392 (Fla. 2006).
2. Third Circuit Denies Standing To Bring Claim of Racial Discrimination in Zoning. — Taliaferro v. Darby Township Zoning Board, 458 F.3d 181 (3d Cir. 2006).
3. Seventh Circuit Holds That Public University Cannot Refuse To Recognize Student Group Based on Group's Violation of School Nondiscrimination Policy. — Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006).


To a practitioner, the articles are pretty worthless. The Developments in the Law probably has some worth. The book review, is another worthless thing. The Note looks promising; however, it deals with India and South Africa so it is a safe bet that very few will read it. The Recent Cases (which are probably student written) seem to be the most valuable things in this particular issue of the Harvard Law Review. This is pretty common for your elite law reviews and it is terrible.

Posted by: charles | Mar 19, 2007 7:59:37 PM