Law Reviews Irrelevant?
Today's New York Times contains a startling article by Adam Liptak describing a speech given at Cardozo Law School this month by Chief Judge Dennis G. Jacobs of the United States Court of Appeals for the Second Circuit. Joined by six of his colleagues, Judge Jacobs told the audience, many of whom were law professors, that "their scholarship no longer had any impact on the courts." The professors tended to agree, citing the possibility that modern judges lack the "intellectual curiosity to appreciate modern legal scholarship." Is the problem that law review articles are becoming increasingly arcane, of interest only to a handful of readers? Is the problem that law review authors "seem to think the analysis of actual statutes and court decisions--which is to say the practice of law--is beneath them"? The judges in attendance suggested that academic articles might be cited more often if academics wrote more accessible articles "about actual cases and doctrines, in quick, plain and accessible articles." Judge Reena Raggi made the trenchant comment that "If the academy does want to change the world...it does need to be part of the world."
Liptak points out that some academics are already meeting the challenge, blogging about current cases and legal doctrines quickly and cogently, and engaging in litigation, for which they must prepare briefs. In addition, academic law reviews such as the Yale Law Journal now offer services such as The Pocket Part, which provides shorter commentaries and news items as a companion to the Journal. I think the growing lack of citation of traditional academic law review articles points to a larger problem, and that is that academics have tended to look down on more accessible writing such as newspaper columns, op-ed pieces, and materials geared toward practitioners. And changing the perception that this type of writing is somehow inferior will be difficult because it is entrenched.
I was struck by the citation information that Liptak provides. "In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times...In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937." The phenomenon must be even more pronounced at law reviews that don't have the clout of the Harvard Law Review.
3 comments:
My faculty have been discussing this today! Read the article closely and you'll see that at least some of the judges are begging for more use-able articles, not discarding articles wholesale.
Also, something nobody has mentioned yet in the discussions here is the ever-increasing workloads of judges over the years. I think if judges can't find a useful article that is easy to read and extract from, they don't have time to wrestle with close reading and scholarship now. But it also seems like a trend in general reading as well. Students, even faculty, and certainly the practicing bench and bar, are all less accustomed to slow, thoughtful reading. I think that is an increasing trend.
I wonder where this issue leaves interdisciplinary scholarship, most of which is not going to be useful to the bench.
I think it's a misconception that interdisciplinary scholarship isn't useful to the bench. Or, maybe it's more accurate to say that the bench isn't where much interdisciplinary/empirical/policy-related scholarship is intended to be useful. Much policy-related scholarship is directed at legislators, regulators, and other policy makers, where it can be very useful if communicated properly.
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