March / April 2011
The Law Review is Dead; Long Live the Law Review: A Closer Look at the Declining Judicial Citation of Legal Scholarship

45 Wake Forest L. Rev. 1185 (2010)

Article summary by Ann Fessenden, 8th Circuit Librarian

In the AO’s recent Impact Study of Court Libraries and Library Services, 86% of federal judges and other researchers responding to the study’s survey reported that they used law reviews “less than monthly” or “never” (p. 23). However two student researchers at Wake Forest University School of Law have challenged the generally held view that citation to law reviews in the courts is declining, and produced some interesting statistics to support their theories.

The authors’ hypothesis is that the methodology used by recent citation studies is fundamentally flawed and that by altering that methodology, “a different, less dire picture will emerge.” In particular, they analyze a 1998 study in the Oklahoma Law Review which found that judicial (federal and state) citations to law reviews declined 47.35% from 1975 and 1996. They feel that a significant flaw with the Oklahoma study was that it was based on the “top 40” law reviews. During this period, however, the number of specialty law reviews has exploded. One possible result is that the increased number of specialty journals serves to “diffuse” judicial citation. In other words, “With more articles being published in more journals, it follows that the old guard of the law review world – such as the forty law reviews examined in the Oklahoma Study – would see an ever-smaller share of judicial citation.”

To test this theory, the authors conducted Westlaw searches for any citations with “L.J.” or “L.Rev.” and actually found increases in law review citations in the U.S. Supreme Court, the Courts of Appeals, and the federal district courts. The article also suggests that courts are especially likely to use law reviews in unsettled areas of the law, and that the law reviews they will choose are those in specialized areas, not the traditional choices like Harvard or Yale. The article further demonstrates that the citation of law reviews is even higher in cases of first impression. The authors conclude that: “the apparent decline is only that: apparent. It is not actual–not when a study is constructed in a manner that accounts for the facts that (1) the number of journals has increased dramatically over the last fifty years and (2) law reviews tend to be more useful in unsettled law.”

 

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