Kirk Jenkins, at The Appellate Strategist Blog, poses an interesting question. Does Legal Scholarship Have an Impact on the Work of the Courts? The ABA and some judges say no, and a recent study says yes.
Mr. Jenkins quotes United States Chief Justice John Roberts who recently characterized legal scholarship as not “particularly helpful” in deciding cases. He cites an ABA study that commented that practicing lawyers view legal scholarship as “irrelevant to their day-to-day concerns.” He reports that even law school professors believe that legal scholarship as increasingly removed from the work of the courts.
Such a view seems odd with the introduction of Google Scholar, blogs, and other places where law review articles are more available than ever before. You don’t have to be a member of a big firm with a library that subscribes to law review articles to get them, and you don’t have to trudge over to a law school or courthouse library to find law review articles.
In fact, I read my first law review article in a long time (PDF) after I found out about it on a blog. I found the article, put it on my iPad as a pdf, and found myself immersed in a seemingly esoteric debate with real world application to how I respond to my clients’ ideas for the handling of their case. It challenged some of my practices, made me consider some, reject others, and change my approach to hopefully be less paternalistic and more client-centered. So, not only are law review articles easy to find, they are easier to copy and to carry than they were just a few years ago. The law review article was very relevant to my practice.
From there I read another article about the professor who wrote the piece and discovered that one of her law review articles had come up in a Supreme Court Oral Argument and mentioned in the opinion. Now, I find myself more open to reading law review articles, particularly as a starting point for legal research as I begin to prepare a brief or consider issues to preserve for appeal.
Mr. Jenkins found some research indicating that legal scholarship may be in its heyday. According to a new study from Professor David Schwartz of Chicago-Kent College of Law and Lee Petherbridge of Loyola Law School, legal scholarship is on the rise in the appellate courts. This excellent study looked for citations to law review articles in 296,098 opinions and found an increase in citations.
The blog post ends with a question: are practitioners citing to law review articles in briefs? They really should — put differently, I really should. In fact, with the Georgia Supreme Court re-examining precedent and its value, now may be the best time ever to cite to law review articles that criticize the reasoning behind precedent.
I’d probably leave off the law review articles that apply de-constructionist literary theory to jury charges for now, though.