Just came across Adam Liptak’s interesting piece titled “When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant” in the New York Times.
Liptak captures an interesting judicial perspective on how relevant US law review articles really are. Very important lessons here, particularly for Indian academics that seek to make impact on the judiciary. Particularly relevant in the context of intellectual property, where we are bound to see a large number of cases in the post pharma patent environment.
Unfortunately, the NY Times article can be accessed only by a paid subscriber, but here are the excerpts. I particularly like the reference to blogs and their growing influence. Also, Justice Reena Raggi’s quip: “If the academy does want to change the world, “it does need to be part of the world.” The note also speaks about the growing participation of academics in litigation—something that we may not see in India, owing to the archaic Bar Council rule that academics cannot appear in court. I’m hopeful however that this does not stay for long and that academics are given an opportunity to be “a part of the real world”. Does anyone have suggestions for how we can go about getting them to change this rule?
Anyway, here goes: “
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. …..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. 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 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. 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.”