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Monday, March 16, 2015

The Chief Justice Reads Law Reviews

Several years ago, Chief Justice Roberts offered some thoughtful remarks on the substance of law review articles. Some have pointed to the Chief's comments as evidence that law reviews are generally worthless. In the past, I’ve questioned that conclusion by noting that the justices regularly cite scholarly work. In this post, I approach this issue in a somewhat different way by showing that the Chief Justice himself regularly cites law review articles in his judicial opinions.

Here are the key remarks from the Chief Justice:

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.

If the academy wants to deal with the legal issues at a particularly abstract, philosophical level, that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.

Commentators have responded to these remarks in a number of ways. Some have agreed with the Chief Justice’s suggestion that scholars do and perhaps should pursue valuable goals other than being useful to judges. (The Chief seems to have had something like this in mind when he said: “that’s great.”) Others have pointed out that abstract research today can indirectly lead to practical doctrinal applications tomorrow, somewhat like the way that basic scientific research contributes to future innovations in applied science. And still others have suggested that "90% of everything is crap" (or carp), and we shouldn’t expect anything else of law reviews.

Instead of comprehensively addressing the law review debate, I just want to make a simple point: When considering the Chief Justice’s critique, it’s worth keeping in mind that the Chief Justice himself is in fact a consumer of law review articles and regularly cites them in his judicial opinions. (Orin Kerr collected several of these examples back in 2012.)

Here is a non-exhaustive list of examples taken from opinions that the Chief has authored during his tenure at the Supreme Court.

1. Sanchez-Llamas v. Oregon (2006)

  • Bradley, Mapp Goes Abroad, 52 Case W. Res. L.Rev. 375, 399–400 (2001)

2. Jones v. Bock (2007)

  • Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 533 (1947)

3. Baze v. Rees (2008)

  • Denno, Getting to Death: Are Executions Constitutional? 82 Iowa S 42L.Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution)
  • Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L.Rev. 49, 105, n. 366 (2007) (collecting cases in which claimants cited the Lancet study)

4. Beard v. Kindler (2009)

  • See Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L.Rev. 1128, 1140 (1986) (‘‘[R]efusals to exercise discretion do not form an important independent category under the inadequate state ground doctrine’’)

5. Herring v. United States (2009)

  • Judge Friendly wrote that ‘‘[t]he beneficent aim of the exclusionary rule to deter police misconduct can be sufficiently accomplished by a practice outlawing evidence obtained by flagrant or deliberate violation of rights.’’ The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L.Rev. 929, 953 (1965) (footnotes omitted)

6. District Attorney’s Office v. Osborne (2009)

  • Garrett, Claiming Innocence, 92 Minn. L. Rev 1629, 1719 (2008) (surveying state statutes)
  • Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 159, n. 87 (1970). 

7. Northwest Austin Municipal District v. Holder (2009)

  • See Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum. L. Rev. 1710 (2004)
  • Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174, 208 (2007) ("The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would ... disrupt settled expectations")

8. Miller v. Alabama (2012) (dissent)

  • Alschuler, The Changing Purposes of Criminal Punishment, 70 U. Chi. L. Rev. 1, 1–13 (2003)

9. Filarsky v. Delia (2012)

  • Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 598–599, n. 121, 619
  • Sklansky, The Private Police, 46 UCLA L.Rev. 1165, 1210 (1999) (footnotes and internal quotation marks omitted)

10. Hosanna Tabor v. EEOC (2012)

  • McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L.Rev. 1409, 1422 (1990)

11. Kiobel v. Royal Dutch Petroleum (2013)

  • See Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 494 (1986).
  • See Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587, 641–642 (2002)

12. Marek v. Lane (2013) (statement respecting denial of cert)

  • See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L.Rev. 617, 653–656 (2010)

13. City of Arlington, TX v. FCC (2013) (dissenting opinion)

  • Monaghan, Marbury and the Administrative State, 83 Colum. L.Rev. 1, 27-28 (1983) (“the court is not abdicating its constitutional duty to `say what the law is' by deferring to agency interpretations of law: it is simply applying the law as `made' by the authorized law-making entity”)
  • Our “task is to fix the boundaries of delegated authority,” Monaghan, 83 Colum. L. Rev., at 27; that is not a task we can delegate to the agency
  • Sales & Adler, The Rest is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L.Rev. 1497, 1564 (2009) ("if delegation really is antecedent to deference, as Mead insists, it cannot be that courts should defer to an agency's views on whether a delegation has taken place").
  • See Merrill & Hickman, Chevron's Domain, 89 Geo. L.Rev. 833, 910 (2001)

 14. Riley v. CA (2013)

  • See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403, 404-405 (2013)

15. McCullen v. Coakley (2014)

  • See Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L.Rev. 413, 451-452 (1996).

Many of these cites go to points of fact about the current or historical state of the law, while others make more analytical or argumentative points about how best to understand abstract legal issues. To be sure, some of the cites are to classic works that might transcend any critique of current law reviews. (Justice Frankfurter's and Judge Friendly's writings most clearly fit this bill.) But most of the listed examples are to works of a relatively recent vintage.

The listed cites likely understate the Chief’s interest in law reviews, since he presumably considers many materials that, for one reason or another, don’t actually end up appearing in his published opinions. And, to repeat, the above list is not exhaustive. Indeed, I may have overlooked some cites in the very opinions listed above. (Please feel free to add other examples in the comments.)

The fact that law review citations regularly appear in the Chief Justice’s judicial opinions casts the Chief’s famous critique of law reviews in a different light. Instead of taking the position that law reviews are generally irrelevant to the Court’s business, perhaps the Chief meant to convey that law reviews could or should be relevant to courts even more often than they currently are.

It’s also worth noting that the Chief often cites other scholarly sources, such as historical treatises written by scholars of previous generations. Those obviously aren’t what the Chief was talking about in his critical remarks, but it’s worth considering the possibility that a lot—not all—of today’s scholarship will be useful to later historians who want to know how those strange people of 2015 thought about things.

Also omitted from the above list are a number of cites to books written by legal scholars, such as the Chief Justice’s cite in Baze v. Rees to my colleague Stuart Banner’s book The Death Penalty: An American History. And the list of course also omits cites to scholars’ amicus briefs, wherein academics apply their scholarly work to particular cases. Those briefs often build on prior scholarly work while eliminating the need to cite the underlying work directly.

None of this resolves the debate about law reviews or proves that we live in the best of all law review worlds. (We don't.) But it does seem notable that perhaps the most salient recent critique of law reviews came from a regular consumer of those very materials.

[UPDATE: I've added the Sales & Adler cite pointed out by a commenter. UPDATE2: I have now noticed and added the Merrill & Hickman cite.]

Posted by Richard M. Re on March 16, 2015 at 08:25 AM in Blogging | Permalink


I don't know that it does much to impeach the Chief's point (as I take it to be) that law reviews have in the main deteriorated into esoterica to note that he has cited an article written by Justice Frankfurter in 1947, or that Judge Friendly wrote in 1965. As to the citation of an article by some person called "Kagan," you know, I don't know, but I seem to recall that that author subsequently went on to a position of some importance, although I'm not recalling precisely what, which might suggest a rhetorical rather than argumentative purpose to the citation. Besides, I don't think his point was that law reviews never produce anything useful, just that they tend to be diamonds in the rough.

Posted by: Simon | Mar 23, 2015 8:53:15 PM

So, cases cite to law review articles - but even if they cite and quote these articles, they aren't really doing it for their theories and arguments, but rather for their descriptive content. In other words, judicial opinions, including those by CJ Roberts, will use the descriptive and empirical content of law review articles, and sometimes even the doctrinal content. But those articles are supposed to be about theory, and the theoretical content of those articles is what Judges find so irrelevant.

Posted by: RandomYak | Mar 19, 2015 4:36:12 PM

What I find interesting is the (relative) frequency with which the judiciary cites law review Notes. My theory is that law students are generally more apt to write doctrinal pieces about novel issues. These may not be the most scholarly pieces, but they are well-suited to assisting judges.

I think CJ Roberts may rightly be criticized for taking an unduly narrow view of legal scholarship's purposes. A law review article's intended audience need not be the bar or the judiciary. Early in my career, I was dead set on pursuing a life in the academy (before realizing that I quite like legal practice). I wrote a number of law review articles, mainly about Chinese politics and legal reform. I can't imagine those ever being useful to a judge, but I would hope that someone at, say, the USTR's might find them enlightening.

That said, I still tend to agree with CJ Roberts' assessment of legal scholarship. The sheer volume of academic writing has ballooned, and so little of it contributes meaningfully to any conversation. I have come to see law reviews as akin to vanity presses -- they exist to pad the CVs of academics, but with only the occasional exception, serve no other discernible purpose.

A related problem is accessibility. Even when an author does have something worthwhile to say, so often he critically undermines the message by taking 80 pages to say it.

I still love scholarly writing, but I must confess that when I have something I want to say, I now go to bar journals and similar publications in the first instance. I have concluded, sadly, that if I want to participate in public legal discourse, publishing in a law review is hardly more consequential than doing nothing at all.

Posted by: Ah Q | Mar 17, 2015 11:44:57 AM

Good post.

For examples, I'm personally partial to this passage from City of Arlington v. FCC:

"Adams Fruit, Mead, and Gonzales thus confirm that Chevron deference is based on, and finds legitimacy as, a congressional delegation of interpretive authority. An agency interpretation warrants such deference only if Congress has delegated authority to definitively interpret a particular ambiguity in a particular manner. Whether Congress has done so must be determined by the court on its own before Chevron can apply. See H. Edwards, L. Elliot, & M. Levy, Federal Courts Standards of Review 168 (2d ed. 2013) (“a court decides de novo whether an agency has acted within the bounds of congressionally delegated authority” (citing Mead, supra, at 226–227, and Gonzales, supra, at 258)); Sales & Adler, The Rest is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1564 (2009) (“if delegation really is antecedent to deference, as Mead insists, it cannot be that courts should defer to an agency’s views on whether a delegation has taken place”)."

Posted by: Jonathan H. Adler | Mar 17, 2015 9:03:04 AM

Do you think it's fair to take the CJ's statement as "nothing in any law review will ever be relevant and it's all theoretical mumbo-jumbo"? I took the statement, made in response to a question, as more along the lines of "the dominant trend and the articles in the top law reviews are mostly theoretical mumbo-jumbo?"

If you read his statement the first way, yes, there is an apparent inconsistency. But there's nothing inconsistent with holding the second view and citing law review articles when they're helpful.

Also, I admit I'm not the smartest guy in the world, but in any given issue of a top law review, there's usually at least one article that I absolutely cannot understand, and usually at least another article whose writing uses so much godawful jargon ("normative," "under-theorized," etc.) that I'd rather roll around naked in shards of broken glass than read the piece to completion.

Posted by: andy | Mar 16, 2015 3:29:01 PM

An alternative explanation for these citations is that Roberts (or one of his his law clerks) takes law-review cites from the briefs and uses them in his opinions to support the points he wants to make.

I'm sure it won't be news to you when I say that judges often draw heavily from the briefs when they write their opinions, both for the substance of their analysis and for the authorities they cite. And I know that Roberts uses arguments from the briefs, because he's written opinions in which he used arguments from an amicus brief that I had filed in the case. (And didn't credit me, dammit. I guess he's forgotten what it's like to be a lowly practicing lawyer.)

Posted by: Neal Goldfarb | Mar 16, 2015 11:46:17 AM

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