The Supreme Court Reads Law Reviews

Every now and then, law reviews take heat for being not just turgid and boring but useless as well. Given that widespread lament, it’s worth noting how frequently recent Supreme Court opinions have been drawing on law reviews — and I’m not just talking about yesterday’s cite to a certain Professor Elena Kagan.

Here are a few salient examples of law review cites, from both majority opinions and separate writings:

  • McCullen v. Coakley cites Kagan, McConnell, and Tribe.
  • NLRB v. Noel Canning extensively cites Hartnett, Rappaport, Natelson, O’Connell, and Bradley & Morrison.
  • Riley v. California cites Amar, Kerr, and Stuntz.
  • Halliburton v. Erica P. John Fund cites Langevoort in considering whether “academic debates” had “refuted” a seminal precedent (answer: no), and Justice Thomas’s concurrence in the judgment surveyed the relevant literature, with cites to about a dozen law reviews.
  • Bond v. United States extensively cites Rosenkranz, Golove, Bradley, Bradley & Goldsmith, Calabresi & Prakash, Baude, and MacKinnon.

This list is under-inclusive in several respects — including because, in all likelihood, I missed some journal cites even in the handful of cases I looked at. In any event, the list makes the point: the Court regularly finds law reviews to be not just useful, but useful in a way that shows up in the final published opinion.

I don’t want to exaggerate the point. Some of these cites may be merely ornamental, for instance. And I doubt that the justices page through every journal that they cite. Still, the Court’s regular recourse to law reviews shows that the genre remains a valued part of the intellectual environment in which the justices render their decisions.

Attracting the judiciary’s attention isn’t the sole or even paramount mission of law reviews. But it’s still an important one — and, to a considerable extent, it’s getting done.

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2 Comments

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2 responses to “The Supreme Court Reads Law Reviews

  1. pvine

    More importantly, do the justices or their clerks read blogs? And does the blog commentary play any role in their decision making process?

    At least with respect to law review articles there is transparency when they are cited by the Court. Do you believe (since we are now in the post-Riley “Computers are Different” era) that the time has come for the Court to cite to blog commentary that is playing a role in its decision making process. Or is it too embarrassing for the Court to admit that it would resort to such undignified sources in performing its highly dignified task? (Cf. The Court’s practice of editing some of its opinions without revealing any such ex post modifications.)

  2. Roy Englert

    In the Internet age, Justices and their law clerks can find useful information — indeed, wisdom — in a wide variety of readily available sources. Presumably, in deciding how to spend their limited time, they search widely and then narrow the field down to the things they actually read. They cite the ones that seem respectable enough to cite.

    Likewise, even if the Justices and their law clerks confine their attention entirely to sources cited in the briefs and record — as arguably they should — the lawyers, including the young lawyers, who prepare the briefs presumably follow the same process in deciding what sources to cite to the Justices and law clerks.

    I would expect the richness of materials cited to grow steadily over time. Information overload can be a problem — as indeed, it was immediately after Gutenberg “invented” the printing press. Nate Silver makes that point in his excellent book The Signal and the Noise. There has been no revolutionary advance in information technology recently comparable to the “invention” of the printing press or the Internet, however. Presuambly, as a society, we have learned reasonably well how to adjust to the vastly expanded availability of information.

    The existence of citations to law reviews is indeed a compliment, overall, to the authors of the cited articles, but in context it’s neither surprising nor by itself probative of very much.

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