Are Law Reviews Irrelevant?

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”.

Althouse’s comments:

“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…

Cross-posted to Library Boy.

Comments

  1. I’ll restrict my comments to the Canadian common law sphere. There are other spheres in which judges and lawyers seem to have no difficulty reading and referring to “academic” scholarship; indeed, even finding it relevant. There, at least, there’s no suggestion that doctrine is all metaphysics. That litigation is more about getting the facts than getting the law right.

    There are some areas of law in which judges seem prepared to read more than caselaw. There are some areas of law in which judges are not.

    There are some academic and otherwise legal writers who most judges will probably read sooner or later if they see that person’s name on an article.

    There are others whose names the judges won’t recognize as likely creating value (even if the judge recognizes the name), so don’t get read because the judge doesn’t have time.

    Most long articles these days have very nice tables of contents with reasonable short portions and sub-portions, covering the particuar area the judge is interested in. If the claim is that the table of contents is too long, well, there’s really no useful response to that, is there?

    I’m sure there are law journals which would be pleased to publish learned articles about the exile of Rosicrucian shmoos from Lower Slobovia in the early 1960s and their subsequent mistreat in rural Dogpatch. Last I heard, nobody is forcing any member of the bench to read those journals. However, I might be wrong. I’m not part of the Inner Sanctum.

    On the other hand, there are a wealth of pointed, relevant articles, in journals aimed at practitioners and judges. Some of the articles are quite short; some longer but nicely broken down with headings in block letters. Even the journals that may often publish reviews of the status of the laws in Upper Lower Slobovia will occasionally publish an article of more relevance to Canada. And it’ll appear in the journal’s index of articles.

    So we (or at least some of we – we being the practising portion of the profession: I include bench and bar in this – think the output of our academic lawyers is too often too detached from reality, even in the areas that concern the practice of law? Paraprhasing a portion of a sound-bite from a somewhat better and more well-known author than will ever be: The fault, dear readers, lies not in our stars, but in ourselves.