Monday, February 21, 2011
Whit D. Pierce & Anne E. Reuben (both J.D. 2011, Wake Forest) have published Empirical Study: The Law Review Is Dead; Long Live The Law Review: A Closer Look at the Declining Judicial Citation of Legal Scholarship
, 45 Wake Forest L. Rev. 1185 (2010). Here is part of the Introduction:
Judge Harry Edwards famously disparaged the usefulness of law reviews in his article The Growing Disjunction Between Legal Education and the Legal Profession. In that article, Judge Edwards explained that “[o]ur law reviews are now full of mediocre interdisciplinary articles. Too many law professors are ivory tower dilettantes, pursuing whatever subject piques their interest, whether or not the subject merits scholarship, and whether or not they have the scholarly skills to master it.” And it is not just judges who warn of declining judicial interest in law reviews. In 1998, attorney Michael McClintock published an empirical study in the Oklahoma Law Review that backed up the general sense of decline with hard numbers (“Oklahoma Study”). The Oklahoma Study found that there was a 47.35% decline in the use of legal scholarship by courts from 1975 to 1996. A more recent study by the Cardozo Law Review found that, in the 1970s, federal courts cited to the Harvard Law Review 4,410 times; that, in the 1990s, the number of citations dropped by more than half to 1,956; and that the precipitous decline continued well into the first decade of the twenty-first century. ...
Our hypothesis is that the theories underlying—and therefore, the basic methodology employed by—the recent citation studies are fundamentally flawed and that by altering the methodology, a different, less dire picture will emerge. It turns out that our hypothesis has merit. Our data indicate that judicial citation of law reviews might not be in decline at all, and that in some cases, just the opposite might be true. Our presentation will proceed in five Parts. In the interest of providing context for the subsequent Parts, Part I offers a short, general history of law review citation by courts, including the debate surrounding its decline. Part II describes a ten-year update to the 1998 Oklahoma Study, using the same methodology as was employed in that study. Part III then highlights and discusses several possible explanations for the apparent decline in judicial citation of law reviews. Part IV compares the traditional citation study methodology with our methodology and explains how our methodology attempts to account for the explanations provided in Part V. Part V analyzes our results and reflects on them. Finally, the Study concludes by considering the institution of the law review in light of our results and by asking how law reviews might adapt to the changing legal landscape to ensure their continued vitality.
(Hat Tip: Legal Skills Prof Blog.)