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.