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Friday, June 27, 2014

The Supreme Court Reads Law Reviews

Every now and then, law reviews take heat for being not just turgid and boring but useless as well. Given that widespread lament, it's worth noting how frequently recent Supreme Court opinions have been drawing on law reviews -- and I'm not just talking about yesterday's cite to a certain Professor Elena Kagan.

Here are a few salient examples of law review cites, from both majority opinions and separate writings:
  • McCullen v. Coakley cites Kagan, McConnell, and Tribe.
  • NLRB v. Noel Canning extensively cites Hartnett, Rappaport, Natelson, O'Connell, and Bradley & Morrison.
  • Riley v. California cites Amar, Kerr, and Stuntz.
  • Halliburton v. Erica P. John Fund cites Langevoort in considering whether "academic debates" had "refuted" a seminal precedent (answer: no), and Justice Thomas's concurrence in the judgment surveyed the relevant literature, with cites to about a dozen law reviews.
  • Bond v. United States extensively cites Rosenkranz, Golove, Bradley, Bradley & Goldsmith, Calabresi & Prakash, Baude, and MacKinnon.

This list is under-inclusive in several respects -- including because, in all likelihood, I missed some journal cites even in the handful of cases I looked at. In any event, the list makes the point: the Court regularly finds law reviews to be not just useful, but useful in a way that shows up in the final published opinion.

I don't want to exaggerate the point. Some of these cites may be merely ornamental, for instance. And I doubt that the justices page through every journal that they cite. Still, the Court's regular recourse to law reviews shows that the genre remains a valued part of the intellectual environment in which the justices render their decisions.

Attracting the judiciary's attention isn't the sole or even paramount mission of law reviews. But it's still an important one -- and, to a considerable extent, it's getting done.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on June 27, 2014 at 04:38 PM in Deliberation and voices | Permalink

Comments

10,000 law review articles a year and very few cited by the Supreme Court or any other court. Most cites are window dressing. In law the professors are the actors and the audience for law review articles. They write them and some read them and then they applaud each other but no one else cares. A very strange system,

Posted by: Jeff Harrison | Jun 29, 2014 11:38:52 AM

If these citations show that law reviews are a valued part of the intellectual environment in which the justices render their decisions, then what ought we to make of references to literary works?

Hamlet has been cited in 2 Supreme Court rulings, and 83 state supreme court rulings. Canterbury Tales have 2 SCOTUS cites, and 10 state supreme court cites. Billy Budd has been cited twice by the Supreme Court. Euripides doesn't have a Supreme Court citation, but it's got 15 cites in state supreme court rulings and 51 federal appellate courts. Hamlet and Macbeth combined have over 500 total cites among all courts.

Does such a history of courts citing creative works produce sufficient reason for law professors to dedicate a great amount of their (paid) time to writing plays and novels? Should we hand out $10,000 summer creative writing stipends? If not, why not? It seems quite easy to argue that such works are a valued part of the intellectual environment in which the justices render their decisions.

Posted by: Derek Tokaz | Jul 1, 2014 8:40:20 AM

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