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Tuesday, March 27, 2007

Of Law Reviews and Lampposts

Law review articles just don’t have the street cred they used to, according to an Adam Liptak article in The New York Times last week. Liptak discussed the comments made by a group of federal judges at a conference earlier this month. The judges reflected on the plummeting number of citations to law review articles in judicial opinions: “No one speaks of them. No one relies on them,” said Chief Judge Dennis G. Jacobs of the United States Court of Appeals for the Second Circuit, one of several judges to speak to law professors at the conference at Benjamin N. Cardozo School of Law.

Everyone seems to agree that law reviews have become less influential in recent years, but there is little agreement about the reason behind their increasing irrelevance. The conference attendees could only speculate: Perhaps the articles are becoming too arcane, perhaps the advent of the internet rendered law reviews less useful, perhaps legal academia has simply become out of touch with the sensibilities of judges. For his part, Professor Michael Dorf blames “an anti-intellectual know-nothingism.”

Although none of the theories of causation can be proven or disproven, given the propensity of the current administration to nominate judges whose decisions the president feels he can predict, it seems logical that citations to academic legal writings are taking nose-dive. If you already know how you will rule before you hear a case, why would you spend all that time wading through law review articles to decipher the law? After all, judges whose ideology dictates the outcome of cases, in the words of Judge Robert D. Sack, “use [law review articles] like drunks use lampposts, more for support than for illumination.”

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