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Monday, October 21, 2013

Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman

In a column today, Adam Liptak discusses some familiar criticisms of law reviews.  I believe law review articles are often high quality, useful and influential, as is reflected by my recent series of interviews with authors of articles cited in the U.S. Supreme Court.  Liptak quotes Second Circuit Judge Dennis Jacobs as saying in 2007 "I haven't opened up a law review in years.  No one speaks of them.  No one relies on them."  Former SG Seth Waxman is quoted as saying in 2002 that "Only a true naif would blunder to mention one at oral argument."  Do not believe either of them for a second; the record suggests that these cynics are closet idealists who regularly enjoy a good law review article.

As for Judge Jacobs, a Westlaw search shows he has cited law reviews dozens of times in his years on the bench.  In 2005, he cited a law review article for a point of sentencing law, and then as an "accord," cited a Stevens and Souter dissent.  See Guzman v. United States, 404 F.3d 139, 143 (2d Cir. 2005).  That is, Judge Jacobs cites the views of two U.S. Supreme Court justices to buttress the conclusions of a law review article.  The next year, in At Home Corp. v. Cox Communications, 446 F.3d 403, 409-10 (2d Cir. 2006), he string-cited three law review articles to explain the realities of leveraged buyouts.

In truth, Judge Jacobs obviously--obviously--loves law review articles.  How can we tell?  He likes to cite articles raising interesting legal wrinkles, but which were not raised or precisely presented by the facts.  See Briscoe v. City of New Haven, 654 F.3d 200, 208 n.13 (2d Cir. 2011) (citing article offering novel reading of a recent Title VII case); Carvajal v. Artus, 633 F.3d 95, 109 n.10 (2d Cir. 2011) (citing article raising novel reading of full faith and credit clause); Pescatore v. Pan Am, 97 F.3d 1, 13 (2d Cir. 1996) (citing articles dealing with "decades-old controversy over choice of law doctrine").   He also likes empirical work.  See, e.g., United States v. Whitten, 610 F.3d 168, 201 n.25 (2d Cir. 2010).    

Judge Jacobs has cited articles written by students, judges and scholars, century-old chestnuts and brand new work, he cites celebrities like Akhil Amar and William Stuntz writing in the Harvard Law Review and the Yale Law Journal,  and lesser-known scholars writing in less fancy venues.  In short, the record shows that he relies on law review articles when he concludes their research and analysis makes them worth relying on, which is exactly what judges should do. 

As for Seth Waxman, of course it would be extremely rare for an advocate to mention an article in oral argument, just as it would generally be silly to waste much time emphasizing the fact that a unanimous state supreme court or en banc circuit court agreed with your position.  He is quite right if his point is that by the time the case is in the Supreme Court, naked appeals to  authority (other than binding Supreme Court decisions) are unlikely to help.  And yet, a search of the Supreme Court brief database on Westlaw shows that Waxman authored 149 briefs citing law review articles, and 423 briefs in total.  So more than a third of the time, he concluded that citation of a law review article would be more persuasive than simply incorporating the article's cases and argument in the brief (which would be fair game--briefs and opinions need not be original).  His choice to rely on articles is the clearest possible vote of confidence in the utility of scholarly research.  On behalf of the legal academy, I say to Mr. Waxman: "You're welcome."

Posted by Jack Chin on October 21, 2013 at 06:30 PM | Permalink

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Of course, Jacobs and Waxman might cheekily point you to this:
http://en.wikipedia.org/wiki/Tu_quoque

Posted by: Dan Markel | Oct 21, 2013 6:44:36 PM

My point isn't that they are hypcrites so we should ignore them, it is that because of their ability, achievement and influence, we should draw a conclusion from their example.

Posted by: Jack Chin | Oct 21, 2013 6:49:43 PM

I realize that :-)
And you are right of course on the merits.

Posted by: Dan Markel | Oct 21, 2013 7:07:49 PM

Jack--our UC Davis colleague Eric Smoodin was cited by the majority in Citizens United. You may not know Eric because he is in American Studies--and his paper was about Mr. Smith Goes to Washington:

When word concerning the plot of the movie Mr. Smith
Goes to Washington reached the circles of Government,
some officials sought, by persuasion, to discourage its
distribution. See Smoodin, “Compulsory” Viewing for
Every Citizen: Mr. Smith and the Rhetoric of Reception,
35 Cinema Journal 3, 19, and n. 52 (Winter 1996) (citing
Mr. Smith Riles Washington, Time, Oct. 30, 1939, p. 49);

So not only is the Court citing to law reviews, it's also citing to film studies!

Posted by: Anupam | Oct 21, 2013 7:56:47 PM

In light of these revelations, I read the Judge's first sentence to mean: "I [as opposed to my law clerks] haven't opened up [physically, as opposed to electronically] a law review in years."

Posted by: (not his) ex-clerk | Oct 21, 2013 9:45:12 PM

(not his) ex-clerk, if that is the case, it's a pretty dishonest use of the quote...the article's point is that the scholarship itself is rotten, not the mode in which it is delivered.

Posted by: Cowabunga | Oct 22, 2013 12:21:05 AM

Would someone please ask Adam Liptak where, if law reviews are so useless, modern privacy torts came from? The answer: A law review article written by Warren and Brandeis, of course.

Posted by: Jack Lerner | Oct 22, 2013 7:39:49 PM

Liptak's argument misses some points. First, judges and lawyers do rely on law review articles. Sometimes they cite them. (See Jack Chin's blog post.) Often they don't. Even if a judge relies on an argument from a law review, the cite may not make it into the opinion for various reasons. Second, today's legal scholarship is not always directed at judges. It may be directed toward policy makers (where if used it will not be cited) or other branches of the academy. Third, peer review journals have big problems too, including buddy networks, financial conflicts of interest, and transparency. Sure a lot of legal scholarship is silly and redundant. But the same can be said of Milton scholarship or behavioral psychology. That's the nature of the academy. Maybe it needs change, but law schools are hardly the worst offender.

Posted by: Rob Verchick | Oct 23, 2013 9:44:44 AM

And if a Justice believes his job is to "call balls and strikes," it should not be surprising that he does not first consult law reviews.

http://www.washingtonpost.com/blogs/the-fix/post/john-roberts-umpire/2012/06/28/gJQAx5ZM9V_blog.html

Posted by: Rob Verchick | Oct 23, 2013 10:11:49 AM

"Sure a lot of legal scholarship is silly and redundant. But the same can be said of Milton scholarship or behavioral psychology. That's the nature of the academy. Maybe it needs change, but law schools are hardly the worst offender."

Not exactly a ringing endorsement.

Posted by: anon | Oct 23, 2013 12:12:00 PM

Congrats on inclusion in Green Bag's year-end list: http://www.greenbag.org/green_bag_press/almanacs/almanacs.html

Posted by: late to the party | Dec 24, 2013 10:18:47 AM

Also, despite his "naïf" comment, Seth Waxman cited law review articles in his oral argument in Miller-El v. Dretke. The audio and transcript are available here http://www.oyez.org/cases/2000-2009/2004/2004_03_9659. The discussion is at 03:25.

Posted by: Also | Jan 5, 2014 8:48:59 PM

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