“I haven’t opened up a law review in years,” said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. “No one speaks of them. No one relies on them.”
In a cheerfully dismissive presentation, Judge Jacobs and six of his colleagues on the United States Court of Appeals for the Second Circuit said in a lecture hall jammed with law professors at the Benjamin N. Cardozo School of Law this month that their scholarship no longer had any impact on the courts.
The assembled professors mostly agreed, though they differed about the reasons and about whether the trend was also a problem. Some suggested, gently, that judges might not have the intellectual curiosity to appreciate modern legal scholarship.
Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them.
The upshot is that the legal academy has become much less influential. In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.
Patterns at other leading law reviews are similar. And the drop in the number of citations understates the phenomenon, as the courts’ caseload has exploded in the meantime.
The law professors at the conference said they loved being cited, even negatively. Paul M. Shupack, who teaches contracts and commercial law at Cardozo, reminisced about having his work on lien priorities mentioned in a footnote to a decision of the Second Circuit by Judge Henry J. Friendly in 1984. “Judge Friendly cited it and said our position was alarming,” Professor Shupack said at the conference. “I was happy he had read it.”
Michael C. Dorf, a law professor at Columbia, had a similar reaction to being cited dismissively in this month’s decision striking down parts of the District of Columbia’s gun control law. On the one hand, Professor Dorf said, “there’s no such thing as bad publicity.” On the other, he said it was vexing to see his article caricatured rather than engaged.
The District of Columbia Circuit had, he said, at least tried to engage the legal scholarship on a difficult and important question. He had less sympathy for judges who have given up on the academy.
“The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable,” Professor Dorf said.
There are other reasons for the diminished influence of law reviews. One is the emergence of electronic databases.
“Before search engines,” said Marci A. Hamilton, a law professor at Cardozo, “if you wanted to figure out what all the cases on a given topic said, you went to a law review.” Now you punch some words into Lexis or Westlaw.
A second is that the number of law reviews has grown in recent years, and some law schools now publish a half-dozen. Some of the drop-off in citations to the most prestigious law journals may have been offset by citations to publications like The American University Journal of Gender, Social Policy and the Law; The Marquette Sports Law Review; or The Washington and Lee Race and Ethnic Ancestry Law Journal.
But probably not.
Even when courts do cite law review articles, Judge Robert D. Sack said at Cardozo, their motives are not always pure. “Judges use them like drunks use lampposts,” Judge Sack said, “more for support than for illumination.”
The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles.
“If the academy does want to change the world,” Judge Reena Raggi said, “it does need to be part of the world.”
To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs.
Law reviews, by contrast, feel as ancient as telegrams, but slower.
At the conference, Judge Sack mentioned that he had written a number of law review articles. “I feel your pain,” he said. “As far as I can tell, the only person to have read any of them was the person who edited them.”