Balkinization  

Monday, March 19, 2007

Judges Lose Cite of Law Reviews

JB

Adam Liptak's article at New York Times Select (temporary pass though link at How Appealing) states what has long been obvious to most judges and most legal academics: judges play less and less attention to law reviews, and they cite them less frequently than ever.

This is hardly a new development. It has been going on for some time-- indeed, ever since law schools went interdisciplinary in the late 1970's and early 1980's. Back in 1992, Judge Harry Edwards of the D.C. Circuit, himself a former law professor, despaired of the increasing irrelevance of interdisciplinary legal scholarship to the actual issues that came before him. Edwards wished that law professors at the top law schools would spend more time analyzing the cases and statutes that mattered to him and other judges and less time on increasingly complicated forays into economic modeling, public choice, feminism, post-structuralism, political theory and other versions of law-and-isms. His article, "The Growing Disjunction Between Legal Education and the Legal Profession," 91 Mich. L. Rev. 34 (1992) quickly became a cause celebre, producing an entire symposium issue of responses in the Michigan Law Review, including one by Sandy Levinson of this blog.

By the time Edwards published his article, however, the handwriting was already on the wall. The American legal academy had long been engaged in an academic revolution that increasingly demanded interdisciplinarity and high theory as the markers of scholarly seriousness and the keys to upward mobility in the profession. The American legal academy had become more like other parts of the university and less like a reporting and advisory service to the bench and bar. The kind of work that Judge Edwards wanted was no longer produced by the most distinguished members of the legal professoriat, or even by assistant professors seeking tenure--who tended to imitate the work of those higher up in the pecking order. All the incentives for scholarly success pushed scholars away from case and statutory analysis and toward interdisciplinarity. Instead, what lawyers and judges wanted was most often produced in student notes and case comments.

As Adam Liptak's article notes, the Internet has changed things somewhat. There is lots of discussion of cases and statutes floating around the Internet for two reasons. First the Internet tends to democratize the diffusion of legal knowledge and the demand for legal knowledge-- creating a new audience for everyday legal expertise. Second, the Internet changes the pace of legal writing-- focusing attention on recent developments instead of the longer view. The Internet gives law professors-- and others-- incentives to write about new legal developments as soon as they happen. Liptak points to the Volokh Conspiracy and Balkinization as two prominent examples, but in fact there are dozens of sites that discuss emerging legal issues ranging from election law to corporate law to disability law-- indeed almost every legal specialty and subject matter is now represented. Moreover, the writing in most of these blogs (and related sites) involves pretty much the sort of legal analysis that Judge Edwards said he wanted back in 1992.

Interestingly, although much of this writing is done by law professors, some is done by law students, some by practicing lawyers, and some by people who have no formal education in law but just care a great deal about the issues. This too, is a consequence of the democratic diffusion of legal knowledge.

The blogosphere tends to push law professors back toward the lawyerly analysis of doctrines, statues, and cases, although other disciplines still make an occasional appearance in legal blogs. One of the most interesting features of my own work as a blogger (to me at least) is that although my "official" legal scholarship in law reviews has been very interdisciplinary, my writing as a blogger has involved much more standard-form legal analysis of current events. That is, my blog writing is much more about the legal analysis of cases, statutes and doctrines than is most of my law review writing. Partly that is due to different expectations in the audiences I write for in the blogosphere and in law reviews. Ironically-- and this says a great deal about the state of the legal academy-- the blogosphere (and the general public) is far more interested in what someone like me has to say as an expert on legal doctrine than as an interdisciplinary scholar, and therefore I tend to write accordingly.

In the long run, it is possible that judges will look to blogs much as they used to look to law review articles for insight and scholarly support. A few courts have even begun to cite to blogs, even though blogs currently do not have the authoritative status that law reviews have. Nevertheless, even if the trend continues, one should not assume that blogs will become particularly influential or effective in changing judges' minds. As Judge Sack explained in the New York Times article, "Judges use [law review citations] like drunks use lampposts," . . . "more for support than for illumination." If blogs grow sufficiently in prestige for judges to think it worth citing them, judges will probably cite blogs for much the same reasons they cited law review articles. In any case, even if legal blogs are useful to judges and their clerks, they will probably be even more useful to journalists, legislators, and the general public in explaining new developments in the law.


Comments:

If judges cite blogs, most likely the cites would be to particular posts and not to the blogs generally. In such citings, might the comments on such posts be considered by the judges? If not, why not? Lawyers and others reading the post cited in an opinion would most likely critically review the post, and the comments, to opine whether the judge(s) have properly interpreted the post, and possibly the comments. (Might Originalism come into play here?)

I dream of the day that Lisa's brother and perhaps I would appear in judicial decisions because of our comments to a blog post cited in support.
 

Attorneys ought to learn hermeneutics, including polysemy, but deconstruction, structuralism, originalism (intentional fallacy), reader-response, pragmatism, post-modernism, Marxism, etc. are not hermeneutics, but ideological lenses.

Of such lenses, only social constructionism offers valied hermeneutic insights (its reductionism often takes those insights to absurd conclusions). Wisdom, justice, and equity are not ideologies, but noble aspiration, served by interpretating laws, constitutions, and texts, not by overlays of literary theories that come and go (assuming they should have been noticed at all).

The radical Rhetoric of Indeterminacy and the Ideological Lenses of Myopia disserve judges, lawyers, plaintiffs, defendents, and all of society. A little Gottlob Frege, J. L. Austin, and John Searle, able philosophers of language all, disabuse "linguistic abuse" for "ordinary language" and invite hermeneutics, not ideological literary theories.

Journals that spin literary theoriest do not serve justice, but subvert it. That's part of their agenda. Joseph Carroll, Frederick Crews, John Ellis, and other respectable theorists that assail these literary theorists never seem to find their indictments in the journals. That silence and censorship would speak volumes, if anyone knew of their indictments. But that would expose literary theorists as frauds of incoherency, contradiction, and unintelligibility.

And, who on this blog supports Originalism (and its intentional fallacy)?
 

Jack Balkin wrote in the opening post --
>>>>> Adam Liptak's article at New York Times Select . . . . . . states what has long been obvious to most judges and most legal academics: judges play less and less attention to law reviews, and they cite them less frequently than ever. <<<<<

Court opinions' citations of law review articles have declined in frequency but are still quite significant. Just one law review, the Harvard Law Review, has so far been cited 937 times in this decade.

I think that citation of law review articles (and -- more recently -- blogs) is most useful in new areas of the law where there are no or few case precedents. I think that as the number of case precedents has grown, the number of areas of the law where there are no or few case precedents has declined (though new areas like the Internet keep cropping up), and so there may be a declining need to cite law review articles. In court opinions today it is common to see points of law followed by a long string of several case precedents. I think that this declining need for citing law review articles helps explain the decline in the frequency of court citations of law review articles.

A good example of where law reviews and blogs are needed as references is the Kitzmiller v. Dover intelligent design case. Because this is an unappealed federal district court decision in a new area of the law, the dependence on analyses in law reviews and blogs is especially strong.

>>>>>> Instead, what lawyers and judges wanted was most often produced in student notes and case comments. <<<<<<

Are student notes and comments necessarily bad?

>>>>>> As Judge Sack explained in the New York Times article, "Judges use [law review citations] like drunks use lampposts," . . . "more for support than for illumination." <<<<<<

Law review articles are not case precedents and do not carry the weight of case precedents. Anyway, with thousands of court opinions' citations of law review articles out there, I don't see how one judge can generalize about how judges use these citations.

Shag from Brookline said @ 7:06 AM --
>>>>> If judges cite blogs, most likely the cites would be to particular posts and not to the blogs generally. In such citings, might the comments on such posts be considered by the judges? If not, why not? <<<<<

A recent list of judges' citations of blogs shows that a lot of the citations were of the comment sections.

Shag continues --
>>>>> Lawyers and others reading the post cited in an opinion would most likely critically review the post, and the comments, to opine whether the judge(s) have properly interpreted the post, and possibly the comments. <<<<<<

That is a reason why a blog where arbitrary censorship of comments and/or commenters is practiced should never be cited in a court opinion or law journal. By arbitrary censorship, I mean censorship for the sole reason that the blogger disagrees with the opinions and/or arguments of the comment or the commenter. Blogs should be treated in the same way as a comment period for a proposed administrative rule -- no censorship of comments or commenters allowed.
 

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Cheers,

Legal Mike
 

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