The Chronicle of Higher Education News Blog commented earlier this week on a piece by the New York Times legal correspondent Adam Liptak who argues that the influence of law reviews is on a sharp decline [one has to register online to read the original Times piece]:
“Meanwhile, the law-review articles have become less readable and less relevant, as the best legal writers and legal minds have reserved their analyses for blogs or for supporting briefs they file in cases that interest them. Summarizing a recent discussion at Yeshiva University’s Benjamin N. Cardozo School of Law about the dwindling influence of legal scholarship on the courts, Mr. Liptak says nearly all the judges in attendance agreed the articles had minimal impact on jurisprudence. And he quotes one judge as saying of his law-review articles, ‘As far as I can tell, the only person to have read any of them was the person who edited them’.”
Earlier this month, I posted an item on my blog Library Boy entitled What Are Supreme Court Justices Reading?. It referred to an article by Simon Fodden in The Court (Osgoode Hall Law School blog) that analyzed the “Authors Cited” sections of Supreme Court of Canada judgments for 2006. If Fodden’s analysis is a representative picture of judicial life here in Canada, it may not be too much of a stretch to say that law reviews may also be declining in relevance on this side of the 49th parallel.
Or maybe I’m misinterpreting?
Among Fodden’s findings:
- 206 separate works were cited, but only 47 (23%) were from academic or professional journals
- “Of the 47 journal articles cited, over half (26) were a decade old or older, 15 were published within the last five years, and the remainder fell in between. The articles came from 30 journals, of which two-thirds were Canadian and one-third foreign (essentially American)”.
- “The most frequently cited Canadian law journal was the Canadian Bar Review (9 times), followed by the McGill Law Journal (5 times); 9 of the articles cited from these journals were a decade or more old”.
Ann Althouse, law professor in Madison, Wisconsin, has commented on the issue on her blog Althouse and attracted a large number of comments from readers.
Some of the judges from the conference referred to above supposedly “pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles”.
“And on the theory that I’ve got some judge and law clerk readers, let me put in my request that they write their damned opinions in a quick, plain and accessible style. Because I’m getting pretty weary of their obfuscatory, evasive, rambling scribblings myself. Unfortunately, I don’t have the option of just not reading. Their work is imposed on us. Talk about an obligation to say something useful and well!”
“As for those professors, how much should we worry about their disinclination to stoop to the level of quick, plain accessibility for the purpose of talking to judges? Do you really think these characters who opted out of the practice of law should have more influence over the law that affects real life? Maybe you should be glad they’ve cocooned themselves within an academic discussion that harms no one”.
“Do you feel sorry for the law review editors who work so hard on what the professors write? The editors still get their editing experience. They get their lustrous credential to put on that résumé that will land them the judicial clerkships where they will get more experience working on judicial opinions — those lengthy, obfuscatory judicial opinions that fail to cite law review articles”.
Ouch!!! I can feel an Internet flame war coming on…