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Tuesday, May 29, 2007

The Law Reviews vs. the Courts

[Cross-posted from Concurring Opinions]

I've just posted to SSRN the near-final version of a short essay I wrote for "CONNtemplations," the soon-to-debut online companion to the Connecticut Law Review, titled "The Law Reviews vs. the Courts: Two Views from the Ivory Tower."

The essay advances the (perhaps somewhat counterintuitive) claim that part of the reason why federal judges have found law reviews increasingly unhelpful is because their own discretion, both procedurally and substantively, has been substantially cabined in recent years... I explain in somewhat more detail in the essay, which I (shamelessly) encourage you to check out -- it's a quick read, too.  But I wanted to blog about it here to see if folks think there's any possible connection. As Congress and the Supreme Court have narrowed the scope of review in all kinds of cases, as courts have relied that much more frequently on harmless error and the like, etc., is there something to be said for _that_ trend having an impact on the utility vel non of legal scholarship? Or, are we just, as Second Circuit Chief Judge Jacobs recently suggested, hopelessly out of touch?

Posted by Steve Vladeck on May 29, 2007 at 12:49 AM in Article Spotlight, Blogging, Constitutional thoughts, Steve Vladeck, Teaching Law | Permalink

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Comments

Tony -- I'm not sure it's quite so simple to equate number of footnotes with an article's originality... Some articles include extensive (and sometimes necessary) doctrinal or historical reconstruction, which I would imagine would always be footnote-heavy, before moving onto original analysis; others never get to the original analysis; others never do the doctrinal or historical legwork.

And even heavily doctrinal pieces may have new ways of understanding old cases, no? That wouldn't make the _cases_ worth the citation, but rather the article describing them...

To me, the harder question is the metric. Some judges may be reluctant to cite law review articles even when those articles factored into their decisionmaking; others might overrely on our writing -- to borrow the line from my paper, using them the way drunks use lampposts: for support rather than illumination...

Posted by: Steve Vladeck | May 30, 2007 9:56:47 AM

Most articles by law professors tend to use arguments that were made in the cases they cite, whether in the majority or dissenting opinions, or in the parties' briefs. Why should courts cite these articles? I've found that courts cite articles that have ideas that were not made elsewhere, and hence deserve to be credited. If you agree, then explain to me why law review editors perversely give preference to articles that are densely footnoted? Doesn't the number of footnotes tend to vary indirectly with the originality of the article?

-- Tony D'Amato

Posted by: Anthony D'Amato | May 30, 2007 1:38:16 AM

I think part of the problem is that citations are ultimately an unconvincing metric for whether judges are reading and using law review articles -- some judges like citing articles; others don't, irrespective of the extent to which the articles figured prominently. The real point of the essay is just to suggest that we _consider_ the role of judicial discretion before we jump on the "legal scholarship is useless" or "judges are near-sighted" bandwagons...

Posted by: Steve Vladeck | May 29, 2007 1:17:22 PM

Lindsay you're right that Doug's blog gets cited a bunch, but I'm not one of the people who categorically lumps together blogging and scholarship. Some of my posts are proto- or quasi-scholarship, but many of my posts are not even near scholarship (eg., travel tips, reflections on ssrn's direction). That said, Doug's scholarship does get cited but I don't know and sort of doubt that it gets cited more than it did pre-Booker. Doug may be a sui generis case also because of how indispensable he's become to the sentencing scholarship/practice world. In any event, I'd love to see the empirical evidence indicating that scholarship gets cited more in the post-Booker world and for what propositions the scholarship is cited. Feel free to email it to me off-blog if you prefer.

Posted by: Dan Markel | May 29, 2007 11:44:50 AM

But how often are legal scholars writing about habeas corpus and immigration anyway?

Posted by: Stuart Buck | May 29, 2007 11:23:04 AM

Actually, Dan, there has been a very sharp increase in the citation to legal scholarship in federal sentencing decisions, if you include blogs in the category of legal scholarship (which surely you would, Professor Prawfsblawg, right?). Take a look at the number of citations to Professor Berman - and not just to his blog, but articles as well. I think it proves Steve's point, actually.

Steve - do you make this point in your article? (Sadly, I haven't had time to read it yet).

Posted by: Lindsay | May 29, 2007 11:12:41 AM

Steve, nice essay and a provocative thesis, but I have my doubts.

You recognized of course that post-Booker criminal sentencing in the fed regime has increased discretion. It'll be interesting to see if there's any increase in citation to scholarship in that area. I doubt it but we'll see. You can also get some ELS folks to compare and control by looking at the vast number of states that still have largely indeterminate sentencing structures and tons of discretion; my guess is that state court judges are not prone to citing my "Against Mercy" article when throwing the book at the defendant -- of course, if they read it closely, they'd see they can do all sorts of nifty things in the name of justice.

In any event, another area I know pretty well is punitive damages, which I saw you cited as support for your thesis. On the one hand I can see the temptation for doing this. But one thing I'm quite surprised about after teaching seminars on punitive damages and doing a big big project on the subject is how much that area of law has been informed by scholarship and amicus briefs signed by academics. And of course, that body of law (and a large chunk of the scholarship) has sought to narrow jury discretion chiefly, and less so judicial discretion. In fact, reviewing courts have virtually unfettered discretion to lower punitive damages awards generated by juries. Anyway, it's a good testable thesis and there's probably something there to it.

Posted by: Dan Markel | May 29, 2007 10:13:42 AM

I enjoyed your article. Not knowing too much about the laws and doctrines surrounding appellate court discretion/jurisdiction, etc., i can't offer any meaningful comments, but the article definitely got me thinking about the issue.

Posted by: andy | May 29, 2007 3:02:15 AM

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