Brent Evan Newton, who is the deputy staff director at the US Sentencing Commission and teaches at the Georgetown University Law Center, has recently posted an important paper, "Law Review Scholarship in the Eyes of the Twenty-First Century Supreme Court Justices: An Empirical Analysis," on ssrn. It appeared in volume four of the Drexel Law Review. Newton's abstract begins:
An analysis of the twenty-first century Justices’ citations of law review scholarship — how often they cite articles, the professional identities of authors of the cited articles, and the rankings of the law reviews in which the cited articles appear — provides an excellent prism through which to assess today’s law reviews. In addition to having had varied and rich legal careers as practitioners, policy-makers, and lower court judges, the majority of the current Justices were, at earlier points in their careers, full-time law professors. Presumably, the Justices are able to separate the wheat from the chaff in the law reviews. The present study examined whether something meaningful can be gleaned from an analysis of the modern Justices’ practice of citing law review articles.
This article describes the results of an empirical study of the nearly two thousand “signed” opinions authored by the Justices — majority opinions, plurality opinions, concurring opinions, and dissenting opinions issued after oral arguments — dated between January 1, 2001, and December 31, 2011, which cited at least one American law review article. Opinions were coded to determine the following: (1) whether one or more law review articles (including law student “notes” or “comments”) were cited in the opinions; (2) which Justices wrote the opinions citing law review articles; (3) the professional status of the articles’ authors at the time that the cited articles were published (as a full-time law professor, legal practitioner, judge, law student, or “other”); and (4) the ranking of the law reviews that published the cited articles according to Washington and Lee University School of Law’s “combined score” ranking system (the “W&L” system). The results of this coding project are contained in a lengthy appendix to this Article, which lists all 1,023 cited articles in the 1,961 opinions issued in 792 cases.
The present study demonstrates that the Justices in the twenty-first century have cited law review articles less frequently than their predecessors did in the 1970s and 1980s, when at least one Justice’s opinion in approximately half of the Court’s cases cited one or more law review articles (with an average of 0.87 articles cited per opinion). During the first decade of the twenty-first century, one or more Justices cited at least one article in 37.1% of the Court’s cases (with an average of 0.52 articles cited per opinion). In 21.3% of the Court’s cases, one or more law review articles were cited in the majority opinion. Justices considered “liberal” in their judicial philosophies cited law review articles in their opinions much more frequently than did Justices considered judicial “conservatives.”
Of the cited articles in opinions issued between 2001 and 2011, 62.3% of authors were full-time law professors, while 37.7% were law students, legal practitioners, judges, or persons who were not primarily associated with the bench, bar, or legal academy (including researchers with think-tanks and full-time professors from departments in a university other than a law school, such as economists, historians, and political scientists). An examination of the authors who were not full-time law professors revealed that the four sub-groups each constituted roughly one quarter of the total.
Read the remainder of the abstract and download the paper here. You'll also want to download the appendix, which lists all of the cases decided by the US Supreme Court between 2001 and 2011 and what, in any, law review scholarship they cite. Makes for some pretty interesting reading. This follows up on some themes that Newton discussed recently in "Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy," which appeared in the South Carolina Law Review.