Academic round-up

By Amanda Frost
on Aug 9, 2011 at 2:12 pm

Is legal scholarship useless?  Chief Justice Roberts thinks so.  This past May he was quoted in the New York Times as saying that legal scholarship is “largely of no use or interest to people who actually practice law.”  The Chief Justice is not alone in his poor opinion of legal scholarship.  A number of judges, lawyers, and even law professors have publicly stated—ironically, often in the pages of law reviews—that legal scholarship is irrelevant to the bench and bar.

Inspired by these critics, Professors Lee Petherbridge and David Schwartz engaged in an empirical analysis of the Supreme Court’s use of legal scholarship between 1949 and 2009, which they recently posted on ssrn.  They conclude that legal scholarship is not useless—at least, not if measured by the frequency with which the Justices rely on it for support in difficult cases.  They report that the Court cited legal scholarship in 32.21% of its decisions during that sixty-one-year period, and that it has referred to legal scholarship more frequently in recent years.   Furthermore, they found that the Court is more likely to rely on academic writing in the most important and contentious cases, such as when the Court is closely divided, when its decision alters existing precedent, and when it strikes down laws as unconstitutional.

Of course, the fact that the Justices cite legal scholarship does not mean that they were influenced by it.  The citation could serve merely to provide neutral support for a Justice’s preconceived views of the best result.  Nonetheless, the frequency with which the Court explicitly refers to legal scholarship belies claims that academic writing is irrelevant to the practice of law.

Interestingly, Professors Petherbridge and Schwartz note that Chief Justice Roberts cites legal scholarship in approximately a quarter of his opinions—a significant number, though lower than the Court’s average.   In fact, the Chief Justice authored several law review articles before taking the bench, one of which has been cited by six different state and federal courts.

So perhaps the Chief Justice should acknowledge that at least some law review articles–such as his own–are worth reading.